PENALTIES AND THE TREATMENT OF THE ACCUSED

Used enim sciendum est discrimina esse poenarum neque omnes eadem poena adfici posse.¹

Under the jury-court system characteristic of the late Republic and early Empire, the task of the court was to issue a verdict, and not to decide upon a penalty.

An edict and a rescript, both Hadrianic, list and grade most of the penalties that were commonly used in the Antonine and Severan period. They are cited in the sixth book of the de co­gnitionibus of Callistratus:

in exulibus gradus poenarum constituti edicto divi Hadriani, ut qui ad tempus relegatus est, si redeat, in insulam relegetur, qui relegatus in insulam excesserit, in insulam deportetur, qui deportatus evaserit, capite puniatur, ita et in custodiis gradum servandum esse idem prin­ceps rescripsit, id est ut, qui in tempus damnati erant, in perpetuum damnarentur, qui in perpetuum damnati erant, in metallum damna­rentur, qui in metallum damnati id admiserint, summo supplicio ad- ficerentur.²

¹               Dig.

* Ibid. 28.13-14: ‘With regard to exiles, grades of penalties were established by an edict of Divine Hadrian, so that a man who is relegated for a term and returns [illicitly] should be relegated to an island; a man who is relegated

The fact that there are two Imperial pronouncements rather than one is fitting. Each presents a scale of penalties separate and complete in itself. Other evidence shows that corresponding to each separate penalty scale there was (at least in the Severan age) a broad social category. Roughly speaking, the edict dealt with penalties for high-status offenders, the rescript with penalties for low-status offenders. For the first group, capite puniri or execution was in fact rare, the standard penalties being deportatio and relegatio, two forms of exile, and motio ordine, or expulsion from the Senate (if the offender was a Roman senator), or from the local council (if a decurion). Disqualification from office-holding was also known. The monetary fine was a common minor sanction. The most serious penalty for offenders of low status was summum supplicium. This covered several aggravated forms of the death penalty, including exposure to wild beasts (bestiis dari), crucifixion (crux), and burning alive (vivus uri, or crematio). Condemnation to live and fight as a gladiator would normally involve the death of the condemned (at some juncture). Metallum was a life sentence to hard labour in the mines. A less grave penalty of the same type was opus publicum, or labour on public works and services. Corporal punishment was applied to humiliores. Torture tradition­ally was reserved for slaves, but free men of low rank were not immune in the second and third centuries. With respect to the treatment of defendants before trial, honestiores were able to avoid imprisonment in most cases.

The first part of this section will deal with the penalties men­tioned in the edict, execution and exile; the second with those that occur in the rescript, summum supplicium, metallum, and opus publicum; and the third with other sanctions, beating, the fine, torture, and finally imprisonment.¹

to an island and leaves that island should be deported to an island; finally, a man who is deported to an island and escapes should be executed.

¹               On penalty variation see F. de Robertis, RLSG 1939, 59 ff.; Ann. Bari 4 (1941), 1 ff.; 281 ff.; G. Cardascia, RHDFE 27 (1950), 305 ff., 461 ff.

I (a) Execution

Of the penalties recognized and prescribed by the late- Republican laws which set up the jury-courts, the death penalty (capite puniri) was the most serious.¹ There is little evidence, however, that it was actually inflicted on members of the citizen population, or, at any rate, on members of the higher orders. This is probably the truth behind Caesar’s accusation that Silanus, in calling for the execution of the Catilinarian conspirators, was threatening to introduce a ‘new kind of penalty’;² and behind the disingenuous reply of Silanus that by ‘the ultimate penalty’ he had meant imprisonment, the ultimate penalty for a Roman senator (Silanus does not say Roman citizen).³

A similar opinion (with the substitution of ‘exile’ for ‘imprison­ment’) was expressed by Thrasea Paetus, as is recorded in a fragment of Dio, which runs: (οτι) Θρασέας τις γνώμην άπεφήνατο av8pl βουλευτή έσχάτην elvac τιμωρίαν την φυγήν.⁴ No precise context is given, but the general background is clear enough: virtually from the beginning of the Empire, death sentences were expected to follow convictions for maiestas, whatever the status of the defendant.

¹               Capite puniri normally means the simple death penalty, or death by de­capitation (by the sword, Dig. 48. 19. 8. 1). The term can have a broader conno­tation. In Dig. 48. 8. 3. 5 it apparently includes bestiae (dealt with below under summum supplicium)\ cf. PS 5. 25. x. In Dig· 48. 19. 15 and ibid. 28. 13-14, it is reasonable to suppose it does not include any of the penalties that made up summum supplidum. See E. Levy, Die romische Kapitalstrafe (1931), 47 ff. (= Ges. Schr. (1963) ii. 356 ff.). On the death penalty see also Mommsen, Strafr. 939 ff.

² Sall. Cat. 51. 18: ‘genus poenae novum*.

³               Plut. Cic. 21.3: ˆσχάτην γάρ άνδρι βονλευτη * Ρωμαίων tcvai δίκην το δεσμωτηριον. The much briefer version in Cato min. has ανδρι ίΡωμαίφ (22. 5). Citizens were not legally immune from judicial execution, but were allowed to appeal against it. See JRS 56 (1966), 167 ff. For the evasion of execution by voluntary exile see below, pp. mff.

⁴               One Thrasea declared the opinion that the extreme punishment for a senator was exile.’ Dio 62.

⁵               See, for example, in the reign of Tiberius, Tac. Ann. 3. 49; 4. 21; 4. 34; policy, condoned or imposed by Emperors, was bound to provoke a hostile reaction in a section of the Senate. What is striking is not that Thrasea’s γνώμη (opinion) was voiced, as an assertion of the prerogatives of senators in the face of an Imperial power subject to few restraints, but rather that it is never heard of again (there is at least no record of it).¹ Even the senatorial decrees passed against Domitian were not phrased in this way.² Nor was the γνώμη em­bodied in any edict or law.

It is not difficult to understand why the γνώμη was never trans­lated into legislation. The Emperor could only have issued it, or permitted it to be issued, against himself, and he was not likely to divest himself of the power to execute would-be assassins. Unpopular or suspicious Emperors, at any rate, would have looked upon this power as the ultimate weapon of self-defence; even Emperors who were generally popular were aware of the possi­bility of assassination,³ and the most likely conspirators were men of senatorial rank. On a deeper level, it should be remembered that if Imperial power was virtually unrestricted, it was also legitimate and based on the consent of the majority of senators, as well as on that of other orders.

The most that the Senate secured, and this was by Imperial generosity, was an oath that senators would not be put to death through the Emperor’s own agency. Some of the drawbacks of the oath have been touched upon already.⁴ It has been pointed out that the whole purpose of the oath could be thwarted (and without an overt breach of faith on the Emperor’s part) by interference in 6. 9; 6. 29; etc. In all but the first of these a death sentence was anticipated by suicide. The men concerned evidently did not expect to be pardoned.

¹               The closest approximation is Dio 55. 20. 1-2 (words attributed to Livia).

²               See p. 44·

^{3size=1 face="Times New Roman">}               For Nerva see Dio 68. 2. 3; 68. 3. 2, with Aur. Viet. Epit. 12. 6; for Trajan, Dio 68. 5. 2, with Eutr. 8. 4; for Pius, SHA Pius 7. 3-4.

⁴ See pp. 47

senatorial trials. But in any case, the oath imposed only a moral obligation on the swearer. Moreover, it was optional, was taken on the Emperor’s own initiative (normally for political reasons), and could not be forced upon him.

Senatorial immunity from execution, then, was always precari­ous, because it rested on the self-interest and self-restraint of a discretionary ruler rather than on the established rights of the most elevated of his subjects. The situation could not have been other­wise, given the extent of Imperial power, the general acceptance of the regime by the Emperor’s subjects, and what might be called the ‘constitutional illiteracy’ of the Senate.

Hadrian was one Emperor who bound himself by an oath not to kill senators. He also ruled, as the jurist Venuleius Saturninus reported, that decurions were not to be executed (apparently for homicide) except for parricide. Instead, the correct penalty was the penalty of the Cornelian law, by which was meant deportation. A rescript of Marcus and Verus half a century later shows that the exemption covered other capital crimes apart from homicide, for example, arson (which, in any case, was punished under the same Cornelian law).¹

How does the Hadrianic constitution relate to the γνώμη of Thrasea? Quite apart from the substitution of local senator for Roman senator in the Hadrianic constitution, the two were not equivalent. The γνώμη admitted of no exceptions, if, as was sug­gested above, it was Thrasea’s reply to the execution of senators for the most serious crime, maiestas. In contrast, the constitution of Hadrian (and also the rescript of Marcus and Verus) could only have applied to some capital offences: maiestas, at any rate, would always have been a practical exception to it.

Thus the singling out of decurions in the constitution presents no special problems. Hadrian was not awarding a privilege to one group which he was withholding from another. If decurions were not to be executed for ordinary capital crimes, it can be as­sumed that other privileged orders, including of course senators, enjoyed the same favour. Further, the issuing of a constitution

¹               Dig. 48. 19. 15 (Hadrian; this ruling is discussed later. See pp. 155, 169); Dig. 48. 22. 6. 2 (Marcus and Verus).

referring to decurions, rather than an edict embodying the γνώμη referring to senators, by no means indicates that the Emperor was ready to limit his authority with respect to the former but not with respect to the latter. Relations between Emperor and senators, and Emperor and decurions, did not develop along the same lines. In particular, capital jurisdiction over decurions in the Hadrianic period belonged to governors, and the constitution of Hadrian was directed towards governors; whereas an edict embodying the γνώμη would have been aimed at the Emperors themselves, who overtly or covertly exercised the power of life-and-death over senators.

The curial order did not possess any final guarantee of immunity from execution, any more than did the senatorial order. Ultimately their fate depended upon the benevolence of the governor or Emperor. But how far were decurions (and all honestiores) pro­tected from the death penalty in the second and third centuries even in theory? Hadrian’s constitution seems to have made specific reference only to homicide, and was certainly not a general pro­hibition of execution.¹ The rescript of Marcus and Verus laying down penalties of deportation and relegation for ‘capital crimes’ has apparent claims to generality; yet it is clear that it did not embrace parricide, excluded by Hadrian, or maiestas, punished with death throughout the period (even if no legal source before Paul's Sentences records the fact).² The case which the rescript

’ See pp. 169-70.

²               The literary non-legal sources leave no doubt that a death sentence was customary in the Severan period. The passage in Paul's Sentences (5. 29. 1) runs: ‘His an tea in perpetuum aqua et igni interdicebatur: nunc vero humilio- res bestiis obiciuntur vel vivi exuruhtur, honestiores capite puniuntur. Quod crimen non solum facto, sed et verbis impiis ac maledictis maxime exacerbatur? What period is indicated by ‘antea’? The legal sources are uninformative on when the change of penalty took place. It is arguable whether interdictio was ever the legal penalty; there is a case for saying that the death penalty was never formally abolished in the last century B.C., but was simply not inflicted. (Some of the important texts are Cic. pro Caec. 100; Sall. Cat, 51. 22, cf. 40; Cic. Phil. 1. 23; Suet. Div. lul. 42; Dig. 48, 24. 1 (Ulp./Aug.); 37. 14. 10.) Thus the use of the death penalty in the early Empire may have been less a breach of law than of traditional practice. (By this theory, members of the Senate in the Julio-Claudian period who deprecated the use of the death penalty for maiestas, and supported their case with arguments recalling the poenae legibus constitutae, were speaking only half-truths. See Tac. Ann. 3. 49-51 (Lepidus); ibid. 14. 48 (Paetus); and Cic. pro Caec. 100: ‘... vincula, neces, ignominiasque vitant, quae settled concerned a decurion who had confessed to homicide and arson.

Arson, like homicide, was subsumed under the Cornelian law de sicariis et veneficiis. A statement of the Severan jurist Marcianus shows that deportation was still in his time the penalty imposed upon honestiores for breaches of the Cornelian law.¹ Modestinus substantiates this for homicide, and Marcianus himself enables us to check his statement in relation to miscellaneous offences also covered by the law.² On the other hand, no fewer than three Severan jurists note that in their time arson in its most dangerous form, that is, arson in a city and for plunder (or simply dolo maid), earned the death penalty.³ One of them, Ulpian, acknowledged that the legal penalty for arson was deportation.⁴ Here, then, is one exception to the rule as stated by Marcianus.

Recourse to or practice of magic was punished under the same Cornelian law, and may have constituted another exception to Marcianus’ rule, if, as is generally supposed, the penalty for magic was death.⁵ However, the section in the Institutes where Marcianus discusses magic, which almost directly precedes the statement on penalty, implies that this was not the case. Marcianus cites a clause in the law stating that anyone who makes, sells, or possesses a potion (venenum) for the killing of someone, ‘is punished’ (plectitur). Presumably the penalty was the penalty of sunt legibus constitutae*). In short, the antea clause might be a description of the practical situation in days gone by, just as the nunc clause undoubtedly is a statement of contemporary legal practice.

¹               Dig. 48. 8. 3. 5: ‘Legis Corneliae de sicariis et veneficiis poena insulae deportatio est et omnium bonorum ademptio, sed solent hodie capite puniri, nisi honestiore loco positi fuerint, ut poenam legis sustineant: humiliores enim solent vel bestiis subici, altiores vero deportantur in insulam.’ Some scholars would read aquae et ignis interdictio for insulae deportatio, others in crucem tolli for the second solent. The suggestion of Albertario (Studi di diritto romano, vi (^x953)> ^I25 ff·) that hodie is Justinianic and the whole passage thus an inter­polation should be rejected. See Index Interpolationum, ad loc.

²Ibid. 3. 1-4 (Marc.); ibid. 16 (Mod.).

³               Coll. 12. 6. 1 (Paulus); Dig. 48. 19. 28. 12 (Call.); Coll. 12. 5. 1 with Dig.

47.    9. 12. 1 (Ulpian; in Dig., and probably in Coll., where there is a lacuna, capite puniri and deportatio are alternatives for honestiores; in Coll, the city is identified as Rome, confusingly, as the passage is taken from the Duties of a Proconsul.        ⁴ Coll. 12. 5. 1.

⁵               Mommsen, Strafr. 643, has been generally followed. Most recently, R. MacMullen, Enemies of the Roman Order (1967), 124-6.

the law: at any rate, the next clause, covering virtually the same ground (the seller and possessor of a medicamentum malum for the purpose of murder) is specific about this. After a short discussion of accidental death through a potion designed to prevent conception (for which offence the penalty was no more than relegation) there follows a list of miscellaneous offences which were all punished ‘with the penalty of the law’. Next, to close the section, comes the stipulation that the penalty of the law was deportation plus con­fiscation, but that ‘today’ this was applied only to honestiores (honestiore loco positi).¹ (Humiliores were sent to the beasts.)

The accusation against Apuleius, on trial in a.d. 158-9 for magic, was ‘capital’ (capitis), but this could just as easily point to exile as to death.² On one occasion the defendant speaks of the trial as one of the many pericula vitae which had beset him.³ But unless the ‘dangers’ were of the order of attempted assas­sinations or previous impeachments (or threats of impeachment) for which execution would follow a verdict of guilty, it would be best not to take this sentence as evidence that on this occasion his life was in danger.

The earlier evidence, such as it is, shows only that recourse to magic and the practice of magic were punished by death when -linked with potential or actual conspiracy against the Emperor. Libo, who allegedly consulted the Chaldaeans about his Imperial horoscope, avoided execution only by suicide, while two magicians, perhaps the chief consultants, were cruelly executed, one thrown over the Tarpeian rock, the other beaten to death in public (the ‘traditional punishment’). At this time the other ‘mathematicians’ and ‘magicians’ were simply banished from Italy under a sentence of interdictio, unless they were aliens.⁴ A magician in the reign of

¹      Dig. 48. 8. 3.                                                                     ....

²      Apol. 26. 9; 100. 9. Apuleius was a member of the provincial aristocracy. .

³               Ibid. 66. 3: ‘Neque enim ulla alia causa praeter cassam invidiam reperiri potest, quae iudicium istud mihi et multa antea pericula vitae conflaverit.’

* Tac. Ann. 2. 27 and 32 (Libo); cf. Dio S7· *5 and Coll. 15. 2. 1. See also Tac. Ann. 6. 29 (Scaurus); 12. 22 (Lollia); 12. 59 (Taurus). Here, consult­ing magicians is an additional charge to add a touch of the sinister to the accused’s activities, and to guarantee his condemnation and death. The situa­tion had not changed by the late third century. According to Paul’s Sentences, the death penalty was awarded for consulting mathematics, harioli, haruspices, or vaticinatores ‘de salute principis vel summa rei publicae’. PS 5. 21. 3.

Septimius Severus suffered no higher penalty.¹ However, a cen­tury later, as Paul's Sentences reveals, magicians were burned alive, and participants in magic arts did not escape summum supplicium in one of its forms, notably exposure to the beasts or crucifixion.² Thus the stiffening of penalty took place after the period of the classical jurists.

The cases of ‘simple’ homicide and adultery are parallel: the penalty of deportation had been replaced by death by the late third or early fourth century, but not by the Severan period.³

The conclusion is that, where the position of honestiores can be shown to have deteriorated through the substitution of death for exile as the penalty for capital offences, the change took place in the post-Severan age almost without exception.⁴ In the period with which this study is principally concerned, honestiores were liable to execution only for killing a parent or for violating the maiestas of the Emperor.

I (d) Exile

The terms most commonly used for exile were, for non-capital exile, relegatio, and for capital exile, interdictio aqua et igni, de­portatio and exilium.

‘Interdictio aqua et igni', ‘exilium', ‘deportatio'. For most of the Republic the Romans had no official penalty of exile. Exile was

¹  Dio 77. 17. 2 (Sempronius Rufus; exact status unknown).

³               PS 5. 23. 17; cf. ibid. 16 (human sacrifice and pollution of temple earns bestiae for humiliores and capite puniri for honestiores). Constantine decreed that consulting a Aoruspex would be punished with deportation and confiscation, while the soothsayer himself would be burned alive. CTh 9. 16. 1, a.d. 319. But see ibid. 4, a.d. 357.

³               Homicide·. PS 5. 23. 1; cf. Dig. 48. 8. 16 (Mod.). It is stated in PS that honestiores suffered poena capitis (death), humiliores crucifixion or exposure to beasts. Adultery·. The Julian law stipulated non-capital exile and partial con­fiscation as the penalty (PS 2. 26. 14), but by the Severan period the death penalty was inflicted, not necessarily, however, on criminals of any status (CJ 9. 9. 9, A.D. 224; cf. 2. 4. 18, A.D. 293). By the reign of Constantine all adulterers may have been liable to the death penalty: he regarded adulterers, along with sorcerers and homicides, as unpardonable (CTh 9. 38. 1, a.d. 322), and pressed for the enforcement of the adultery law (ibid. 9. 7. 2, a.d. 326). See also 11. 36. 4, a.d. 339; Ammianus 28. 1. 16 (a.d. 371-2). The case of vis publica is more problematic. Constantine raised the penalty from exile to death. See ibid. 9. 10. 1, a.d. 317 (?). But was it enforced on high-status criminals?

⁴               The exception is arson in its most serious form (above).

voluntary, imposed on themselves by defendants on capital charges in order to escape the penalty of the law, that is, death. Interdictio aqua et igni was an administrative measure, issued regularly to prohibit the re-entry of exiles into Roman territory on pain of death. The transformation of exile into a penalty belongs to the closing decades of the Republic.¹ A jurist of the Augustan age, Labeo, was able to refer to exile and death as two capital penalties.²

Labeo’s words were cited by a later jurist, and it is impossible to be sure whether he used the word exilium and not the phrase interdictio aqua et igni.³ The two terms are virtual synonyms in the first-century literary texts.⁴ They stand for the exile which in­volved loss of citizenship, loss of property, and commonly, though not invariably, banishment to an island.® This was the regular penalty laid down by the Senate for maiestas when death was not

¹               A terminus post quem is provided by Cicero’s pro Caecina, which was written in B.c. 69. See espec. § 100. The attempt of Levy (Ges. Schr. ii. 332 ff.) to date the change to 63 B.c. is unconvincing.

²               Dig. $7. 14. 10 (Ter. Clem.): ‘Labeo existimabat capitis accusationem earn esse, cuius poena mors aut exilium esset.’

³               lang=EN-US>Africanus, a contemporary of Clemens (through whose writings Labeo’s ‘opinion* comes to us), makes a statement comparable to Labeo’s: ‘rei autem capitalis damnatus intellegitur is, cui poena mors aut aquae et ignis interdictio sit.’ Dig. 37. 1. 13.

⁴  See, for example, p. 113 n. 1 (beginning).

⁵ The content of the penalty was not yet fixed under Augustus. Dio (56. 27. 2-3) under a.d. 12 writes of some new regulations of Augustus on the subject of exile. Augustus is said to have been critical of exiles for several reasons. One was that some were living outside the districts to which they had been banished. Evidently the decision to confine exiles in certain places or areas antedated the legislation which Dio is reporting. Under Augustus both banishment from a certain area and confinement in a particular place are known. The exile of Cornelius Gallus in B.c. 26 (Suet. Aug. 66; cf. Dio 53. 23-4) is an example of the former, and the exile of the elder Julia in B.c. 2 (Tac. Ann. 1. 53; etc.) the first example I have found of the latter. In the passage of Dio, elements of both kinds of exile may be present. The account is very confused. One difficulty is that the rule that exiles should not inhabit islands closer to the mainland than fifty miles (except for Cos, Rhodes, Samos, and Lesbos) was rarely observed in practice. And does the choice of these exceptions mean that the regulations con­cerned the area of Asia Minor only ? Perhaps we have before us an amalgam of regulations issued at several times, and tied only loosely to a.d. 12. Tiberius’ enactment about exiles and inheritance (Dio 57. 22. 5) is just as difficult to interpret. Both Mommsen (op. cit. 974-5) and Levy (op. cit. 337 n. 96) con­structed implausible theories around this passage—which, incidentally, stands alone, and is apparently unrelated to what precedes and succeeds it in Dio’s History. (It is part of Xiphilinus’ epitome.)

exacted.¹ The penalty of exile stood also for vis publica,² crimes of accusers³ (although relegatio is also known), and repetundae with saevitia (cruelty).⁴

Deportatio as a technical term does not seem to have made headway until the early second century.⁵ Trajanic and early- Hadrianic writers are surprisingly ignorant of it. Pliny the Younger

¹               The formulae are various: interdictio aqua et igni (and variations): Tac. Ann. 3.38. 2; 3. 50.4; 4. 21. 3; 6. 18. 1. exilium: ibid. 4. 20.1; 6. 18. 2; 12. 52. 1; 15. 71. 3; 16. 9. 1. Italia puls a est·. ibid. 12. 8. 1. This case bears resemblance to

6.     18 {aqua et igni interdictum); see also, for the language, 2. 32. 3 (cf. Coll. IS. 2. 1: aqua et igni interdicatur—same event described); cf. 14. 50. 2; 16. 33. 2 (Epict. 1. 1. 30 establishes that this is the exile (φυγή) which was the alternative to death). Two likely instances of capital exile are ibid. 14. 48. 4 (in insula publicatis bonis; cf. 3. 49-50) and 12. 22. 2 (publicatis bonis cederet Italia). The above selection is not complete.

²               Tac. Ann. 4. 13. 2; cf. 4. 28. 1; etc. On the penalty for vis publica see PS 5. 26. 1; Dig. 48. 6. 10. 2.

³               Ibid. 6. 9. 1 {exilium—alternative to death); 6. 30. 1 (interdictio); 12. 42. 3 (interdictio), cf. Suet. Dom. 9. 2 (exilium, but not in antithesis with mors); Tac. Ann. 4. 36, 1 with 13. 33. 3; 4. 31 (?) (Italia arceri; cf. 6. 30. 2: urbe exigi).

^{size=2 color=black face="Times New Roman">4}               On the penalty for repetundae see A. N. Sherwin-White, PBSR 17 (1949), 5; Μ. I. Henderson, JRS 41 (1951), 71; P. A. Brunt, Historia 10 (1961), 189. In the Severan age the basic penalty was exilium (sc. non-capital exile, see p. 115 n. 5), but if more serious crimes were involved (e.g. execution of an innocent man), a higher sanction was applied, normally deportatio. See Dig.

48.   11. 7. 3 (Macer). In the early Empire Silanus was sentenced to capital exile (Tac. Ann. 3. 68) because the charge included saevitia (if not treason). Vibius Secundus (ibid. 14. 28: Italia exigitur) was saved from a gravior poena, pre­sumably capital exile. The nature of the punishment of Flamma in Tac. Hist. 4. 45 is unclear. Brunt (art. cit. 204) thought it was relegatio. Marius Prisons* punishment is described in two ways by Pliny: *... urbe Italiaque inter- dicendum* (Ep. 2. 11. 19) and ‘relegatus est’ (ibid. 6. 29. 9). See also Juv. 1. 47 ff. If repetundae was the only formal charge, the penalty was severe. The rival sententia reveals that the regular punishment for repetundae was simply infamia (plus reparation). Pliny, Ep. 2. 11. 20; cf. ibid. 12. Cadius Rufus (Tac. Ann. 12. 22. 3) and Cossutianus Capito (ibid. 13. 33. 3) probably suffered loss of dignitas or expulsion from the senate. (Cf. 14. 18. 1, for Pedius Blaesus.) lulius Bassus escaped even this penalty by the good offices of Pliny (Ep. 4. 9. 16-18).

Adultery, when joined with other charges, might be punished by exile. See Tac. Ann. 2. 50: exile, in all probability, was the first of three possible penalties, ruled out when the treason charges were dropped; 3. 23-4: a famous precedent; Julia’s adulterers were punished morte autfuga; cf. ibid. 1. 53; 4. 42. 3: exilium for Aquilia.

⁵               This is overlooked by Mommsen, Strafr. 974-5. It may be that allowance should be made for unwillingness of historians such as Tacitus (see Syme, Tacitus 343-4) to use technical terms. Moreover, it may be felt that, given the absence of a Digest for the first century, it is dangerous to infer too much from the silence of literary texts. But it seems to me that our authors’ avoidance of the term deportatio is too thoroughgoing to be fortuitous.

uses neither deportatio nor its cognates. The punishment of Valerius Licinianus for incest, which can only have been equivalent to deportatio, is referred to as exsilium. Pliny also classes him with those quibus aqua et igni interdictum est, and writes of him as relegatum.¹ Elsewhere in the Letters, the terms exsilium and relegatio are interchangeable.^{[94] [95]} Tacitus, writing still in the early years of Hadrian, reports L. Piso’s recommendation for the punishment of C. Silanus, proconsul of Asia, with these words:

ille (L. Piso)... aqua atque igni Silano interdicendum censuit ipsumque in insulam Gyarum relegandum.^[96]

His use of the verb deportare four times for the process of trans­porting a criminal to an island, or away from Italy or his homeland, is likely to be no more technical than his use of relegare here.^{[97] [98]} Deportare is found frequently in Suetonius’ Lives with a literal rather than a technical meaning, for the carrying of goods of different kinds, or bodies, dead or sleeping.® On the other hand, the jurist Julian seems to have discussed the effects of deportatio.^[99] He served Hadrian as well as Pius. Again, Pius himself made several statements on the condition of deportati, which may in-

dicate that the term had been recently introduced.¹ We are thus entitled to hold that Hadrian knew of deportatio, and that the in insulam deportetur in Hadrian’s gradus poenarum for exiles as reported by the Severan jurist, Callistratus, was not anachronistic.^{[100] [101]} As the century progressed, the use of deportatio became more regular and the other terms fell out of use.^[102]

* Relegatio*. The word exilium is used ambiguously in the sources. Exilium and exul occur as ‘umbrella terms,* covering both relegatio and deportatio·,^{[103] [104] [105] [106]} or again, exilium temporarium (ad tempus) and exilium perpetuum are contrasted with deportatio.³ On the other hand, Paulus firmly distinguished between ‘capital’ penalties such as mors (death) and exilium (which he equated with aquae et ignis interdictio) and cetera, ‘the rest’, which were properly called non exilia sed relegationes* The Augustan poet, Ovid, long before made the same distinction, when he indicated that he was merely ‘rele­gated’, and not ‘exiled’: ‘ipse relegati, non exulis utitur in me/ nomine’. Augustus deprived him of ‘nec vitam nec opes nec ius... civis’.’

Relegatio in the Republic was a measure of coercion (coercitio). It might be employed by a father against his wife and family, by a patron against his freedman, or by a master against a slave. In addition, non-citizens and occasionally citizens were relegated by magistrates—but as an administrative measure, rather than as a penalty prescribed by the laws.¹ Augustus, however, made relega­tio the legal penalty for adultery;^{[107] [108]} and the sentence of relegatio was passed on offenders appearing before the new criminal courts that emerged in the early Principate.

Relegation as a penalty might involve banishment to a place (normally an island), or simply exclusion from Rome, Italy, or particular provinces.^[109] The sentence might be restricted in time (ad tempus) or lifelong (in perpetuum).^{[110] [111]} But even a life sentence did not involve loss of citizenship ;^s nor was the power to make a will taken away.^[112] Liberty too remained.^[113] A relegatus could receive from a will,^[114] own property,^{size=2 color=black face="Times New Roman">[115]} and possess rights over his sons.^{[116] [117] [118]}

Did the relegatus lose his property on condemnation? The evidence is meagre and scattered. By the adultery law of 17 B.c. a woman found guilty was deprived of half her dowry and a third of her goods. The male co-respondent surrendered half his property.¹¹ (Both were relegated to islands.) Cotta the consul pro­posed for Piso’s son Marcus relegation for ten years with five million sesterces of his father’s property, a generous sum. ^Augus­tus’ errant family either lost their property or were forbidden access to it.^[119] In contrast, a rescript of Trajan implies that to confiscate the property of relegati was irregular: ‘I know that the property of men relegated has been made over to the Fiscus through the avarice of former times. But other policies are in keeping with my clemency..

Over a century later Ulpian refers to Imperial rescripts which prohibited the confiscation of either the whole or a part of the property of those who were relegated for a limited period. This rule, if it was a rule, had been broken, for Ulpian makes the point that the rescripts were issued as reprimands, and not with the intention of cancelling the sentences which had given offence.* Of the relegati in perpetuum Marcianus has this to say: ‘They also keep all their property, save any which has been confiscated; for the sentence can deprive those sent into life exile, or those relegated, of part of their property.’³ The second clause states that part of the property could be confiscated; the first suggests that this did not invariably happen.⁴

The status of the exile. The legal texts of the Antonine and Severan periods, and the post-classical texts, make it plain that

55. 10. 14 if.). The younger Julia was permitted a peculium until Tiberius took even that away (Suet. Tib. 50; cf. ibid. 11. 4; and Tac. Ann. 4. 71. 5: ‘Augustae ope sustentata’). Neither Julia, it seems, had the use of her property.

¹               Dig. 48. 22. 1: ‘scio relegatorum bona avaritia superiorum temporum fisco vindicata, sed aliud clementiae meae convenit.. There is another possible interpretation of Trajan’s rescript. The key words are relegatorum and fisco. Deportatio was not yet a technical term in Roman law. Pliny used the word relegatio and its cognates for the process known later as deportatio (see p. 114). Might Trajan have been thinking of the property of those subsequently known as deportatil It might also be urged that Trajan was intending to brand as avaricious the seizure of bona damnatorum for the Fiscus rather than for the Aerarium. To oppose all confiscation would have been to cast a slur on all pre­decessors, not just on Domitian. Hadrian perhaps took up this point (SHA Hadr. 7. 7). But see Dig. 48. 8. 4. 2; 48. 20. 7. 3. On the destination of bona damnatorum see F. Millar, JRS 53 (1963), 36-7; P. A. Brunt, JRS 56 (1966), 81-2.

²               Dig. 48. 22. 7. 4: ‘reprehensaeque sunt sententiae eorum, qui ad tempus relegatis ademerunt partem bonorum vel bona, sic tamen, ut non infirmarentur sententiae quae ita sunt prolatae.’ This is odd. Perhaps the recovering of the money was a problem. See Tac. Hist. 1. 90; Dig. 26. 7. 57. 1.

³               Dig. 48. 22. 4: ‘et bona quoque sua omnia retinent praeter ea, si qua eis adempta sunt: nam eorum, qui in perpetuum exilium dati sunt vel relegati, potest quis sententia partem bonorum adimere.’

⁴               See also ibid. 14. 1; PS 2. 26. 14; 5. 22. 2; Coli. 1. 7. 2. Relegatio was aggravated by confiscation in the Decian and other persecutions. H. Leclercq, DACL 10 (1932), ‘Martyr, xxix, Les supplices des martyrs’, 2426. where a man of low rank was sent to the mines or executed, a man of high rank was sentenced to relegatio or deportatio.¹ (There were other variations.) An early text is Hadrian’s decree in favour of decurions. For capital crimes, decurions could expect the poena legis Corneliae, that is, the most serious form of exile, whether it be called exilium, deportatio, or interdiction

In addition, it is not without significance that relegatio was frequently bracketed with motio ordine, or expulsion from the council, a penalty naturally suffered only by decurions.³ Ulpian, in fact, presented motio as a milder form of relegatio, the main distinction being that the man condemned to relegatio was re­quired to leave his city.⁴

Not every relegatus was a decurion. Ulpian wrote: ‘Qui ad tempus relegatus est, si decurio sit, desinet esse decurio.’³ Papinian advised that an advocate, who was a plebeian should be sent into exilium temporarium for reading a document containing false evidence.⁶ For the same offence a decurion was suspended from the council for ten years. Augustus passed a sentence of leve

¹               Capitepunirij deportatio'. Dig. 48. 19. 15; ibid. 28. 9; 48. 22. 6. 2 (by impli­cation); etc. For deportation of decurions see p. 121. Metallumjrelegatio'. Dig. 47. 17. 1; 47. 20. 3. 2; PS 1. 21. 4; 5. 20. 2; ibid. 5. Relegatio is grouped with penalties for non-plebeians in Dig. 50. 13. 5. 2. Relegation of a decurion in Fronto, ad am. 2. 7, e.g. 12 (ed. van den Hout, 18iff.). See Leclercq, ibid., for the exile of popes, bishops, and saints.

²               Dig. 48. 19. 15. It is not clear whether Hadrian issued all the mandata referred to there. He surely issued some.

³               e.g. Dig. 47. 14. 1. 3 = Coll. 11. 8. 3; 47. 18. 1. 1; 50. 2. 3. 1 (cf. CJ 10. 61. 1 (a.d. 212)); 50. 13. 5. 2; PS 5. 20. 6. For Roman senators, Pliny, Ep. 2. 12. 2, cf. 2. 11. 3 and 20; 4. 9. 16; etc.

⁴               Dig. 50. 2. 2 praef. (this passage reveals another difference: the relegatus finds it more difficult to recover his position in the ordo). Motio was a penalty for atrox iniuria (Dig. 47. 10. 40; and see p. 203), deserting an embassy (Dig. 50. 7. 1), and extortion, for a Roman senator (p. 113 n. 4; last note, fin.). Pro- hibitio honorum was a milder penalty. Dig. 50. 2. 3. 1; 50. 13. 5. 2. See Kiibler, RE 4. (1901), 2329 ff., s.v. decurio.

⁵               lang=EN-US style='font-style:italic'>Dig. 50. 2. 2 praef.: ‘The man relegated for a time, if he is a decurion, will cease to be one/ Sometimes no alternative punishment to exile is given: Dig. 24. 2. 8 (releg. for three years); 40. 12. 39. 1 (modus exilii)} 47. 14. 3. 3 (releg. for ten years from Italy); 48. 10. 32. 1 (releg.)} ibid. 21 (releg.)} 48. 19. 30 (releg. in insulam)} ibid. 39 (temp, exilium)} PS 2. 26. 14 (releg. for adultery). Or the status of the exile is not given: Dig. 22. 5. 3. 3. It is not inconceivable that there was a range of minor crimes such as those dealt with here, where the honestioreslhumiliores distinction was less relevant because the most serious penalties were not applied.

⁶ Dig. 48. 10. 13. i·

exilium on a man e plebe for libel.¹ A letter of Pliny indicates that relegatio (temporary or for life) was a penalty regularly enforced by governors? The rank of those condemned is not given, but some may have come from low-status groups.

The above are examples of relegatio as a poena, penalty. Rele­gatio in its most primitive form is also relevant. Relegatio appears in the Digest as an aspect of the authority of a paterfamilias over his children and wife, or of that of a patron over his freedmen.³ Slaves were not relegated as a penalty, partly because relegati normally could choose their place of residence outside Italy or a province.⁴

Thirdly, reference is made in both literary and legal sources to the magisterial use of relegatio or leve exilium as a coercive measure against trouble-makers. The former tell of actors,⁵ Jews,⁶ philosophers,⁷ the latter of soothsayers (vaticinatores),* astrolo­gers’ and simply gangs of youths (iuvenes)¹⁰ expelled in this way. Most of these enemies of order would have been low in rank.

As for the more serious brand of exile, a few instances are known of its use against plebeians or freedmen. Ulpian spoke of the interdictio inflicted wholesale on astrologers in A.D. 17. The story is preserved in the Collatio:

denique extat senatus consultum Pomponio et Rufo conss. factum, quo cavetur, ut mathematicis Chaldaeis ariolis et ceteris, qui simile inceptum fecerunt, aqua et igni interdicatur omniaque bona eorum publicentur, et si externarum gentium quis id fecerit, ut in eum anim- advertatur.¹¹

*       Suet. Div. Aug. 51. 1. The other man was also e plebe, and was fined.

*       Pliny. Ep. 10. 56; cf. Dig. 47. 9. 4. 1: Pius ruled that free men were to be beaten and ‘relegated’ for three years for plundering a wreck (etc.). The pre­scription of corporal punishment here poses problems. See pp. 163-4. In Dig.

48.   22. 7 pass, little is said about the status of the culprits.

³See p. 161 n. 1 above.                                       ♦ Mommsen, op. cit. 968.

⁵               Suet. Div. Aug. 45. 4; Tib. 3^. 2; Nero 16. 2; Tac. Ann. 1. 77. 4; 4. 14. 3; 13. 25. 4·

⁴ Ibid. 2. 85. 4; cf. Jos. A? 18. 65 ff.; Suet. Div. Cl. 25. 4.

⁷ Pliny. Ep. 3. 11. 2, cf. Tac. Agr. 2 (professores); etc.

•Coll. 15. 2. 3; 5; PS 5. 21. 1.

♦                                                                                                        Coll. 15. 2. 1; Tac. Ann. 2. 32. 3; Dio 57.15.                                                                       «· Dig. 48.19.28.3.

ⁿ Coll. 15. 2. 1: ‘Again, a S.C. of the consulship of Pomponius and Rufus survives, in which interdiction is decreed for mathematicians, Chaldaeans, soothsayers, and others of similar professions, and in addition total confisca­tion of property and execution for any aliens among them.’

Other information is derived from Tacitus and Pliny. Anicetus, Nero’s freedman, agreed to go into exile on Sardinia for ‘adultery’ with Octavia.¹ The alternative was death. Atilius, a freedman, who was responsible for the disaster at Fidenae under Tiberius, was driven into exile? Atimetus, also a freedman, did not escape death for his share in Silana’s intrigue against Agrippina. Silana’s two henchmen Calvisius and Iturius, who were perhaps plebeian citizens, were ‘relegated’.³ Finally, when Afranius Dexter the consul was assassinated, some senators pressed for the banishment, some for the execution, of his freedmen. The alternatives were relegatio in insulam and mors.⁴

This last case alone would seem to put paid to the supposition that only criminals of better standing were relegated or deported to islands—the argument is that only they could support themselves adequately in exile, and that in this way the state was saved expense.⁵ But there were other forms of confinement which were applicable to humiliores, for example metallum and opus publicum. When, as was usually the case, the possessions of humiliores did not amount to much, they would certainly have lived at state expense. The lot of exiles could have been made more disagree­able. Their travel allowances, or viatica, might have been cut, or simply disallowed. But the memory of their former dignitas was normally⁶ sufficient to prevent their downgrading, and to ensure that, while losing their property, they lived in greater comfort than their inferiors.⁷ This is the crux of the matter.

*       Tac. Ann. 14. 62. 4.

*       Ibid. 4. 63; the penalty involved interdictio, or this is an abnormal use of exilium by Tacitus.

³               Ibid. 13. 22; cf. 14. 12. 4. Prima facie, Silana’s punishment (exilium), and not that of the others, involved interdictio. This is not certain.

⁴               Pliny, Ep. 8. 14. 12. This so-called relegatio was equivalent to deportatio. See pp. 113 ff.

*       Mommsen, op. cit. 968-9.

^{size=2 color=black face="Times New Roman">5} Gaius* attitude was abnormal. See Dio 59. 18. 3.

⁷               Large viatica·. Dio 56. 27. 3 (Augustus’ regulations); Tac. Ann. 3. 17. 4 (M. Piso, the first sententia)·, ibid. 12. 22. 2 (Lollia). See also Sen. ad Helv. 12. 4: *... ut maius viaticum exulum sit, quam olim patrimonium principum fuit’. Avillius Flaccus bought an estate in Andros although he had lost all his property: Philo, in Flacc. 168; cf. 184 (exiles in general). Gaius had exiles put to death for financial gain although they had all lost their property: Dio 59. 18. 3. Piso was allowed slaves: Dio 59. 8. 8. Tiberius took away the allowance (peculium) of the younger Julia: Suet. Tib. 50. 1. See also Pliny, Ep. 4. 11. 13.

Exile was an alternative to what was still more unpleasant—either execution or penalties of a servile character such as opus publicum and metallum.

Thus the extreme thesis, that exile, mild or severe, was exclu­sively for honestiores, cannot stand. The more modest assertion, that the officials who administered criminal justice in the extra­ordinary courts of the Empire normally deported and relegated offenders of high status and found harsher punishments for crimi­nals from the lower ranks of society, is upheld. It is unnecessary to repeat in this connection evidence already cited or referred to.¹ But one development which has so far been passed over should be mentioned. Governors lost the right to deport, perhaps in the reign of Severus: they might execute a sentence of deportation only after reference had been made to the Emperor.² We should prob­ably see a link between this measure and the Hadrianic edict on the subject of execution. Both appear to have been aimed pri­marily at governors and to have served the interests of decurions, It may not seem obvious that the Severan reform was intended to be advantageous to decurions. But the passage of Ulpian in which the procedure of reference to the Emperor is outlined reveals that the offenders who were envisaged were decurions. After describing the new system, Ulpian went on: ‘The Divine Brothers laid down in a rescript that decurions of cities were to be deported or relegated for capital offences. Thus they ordered Priscus, who had confessed before an investigation to homicide and arson, to be deported to an island.’ There is another point. No restriction seems to have been placed on the powers of the governor to execute humbler citizens or send them to the mines. But both these penal­ties were more severe than deportation.

Confiscation as a regular part of the sentence of exilium: Silanus was out­lawed and ‘relegated’ to Gyaros: 'eadern ceteri, nisi quod Cn. Lentulus separanda Silani materna bona.. Tac. Ann. 3. 68. Cf. ibid. 3. 23, where confiscation was waived as a special concession. Paconius retained his property, see ibid.

16.    33, with Epict. 1. 1. 30. Egnatia Maximilia lost hers only at a later stage, ibid. 15. 71; Syll.i 811-12 suggests the reason (see Furneaux, ad loc.). She perhaps retained her property originally as simply accompanying her husband. Other refs, to confiscation: Tac. Ann. 3. 50; 4. 21. 3; 14. 48; 16. 33 (Soranus). Legal references include Coll. 15. 2. 1; Dig. 48. 22. 14.

*       See p. 120 nn. 1-4, and text there.

*       Dig. 48. 22. 6 praef.-i. See pp. 79 ff.

One problem remains, which is quite intractable: this concerns the fate of citizen-criminals of low rank, firstly, in the late Republic, and, secondly, in the early Empire. The earlier discussion implied that in Republican times only offenders of high rank were able to escape the penalty of the law (death) by voluntary exile. This is plausible, but cannot be shown to be correct.¹ We simply do not know how the law (which in theory guaranteed equal treatment for all citizens) was administered. The early Principate was a period of transition, in the course of which the jury-courts lost ground to courts which investigated criminal accusations extra ordinem. Low-status criminals were sometimes exiled, by both kinds of courts,^{[120] [121]} until the time came when judges had recourse to the harsher penalties which were now at their disposal.

New Roman">2 (a) 'Summum supplicium'

In non-legal literary sources supplicium has three main meanings, torture, death, and punishment generally. The suggestion has been made that it is the first meaning that is preserved in the legal term summum supplicium.^[122] It would follow that the real content of the penalty is torture; and that summum supplicium is not to be thought of as a form (an aggravated form) of the death penalty, as it has commonly been supposed to be.

This conclusion is reached by the following argument: sup­plicium means death only when it is associated with verbs such as ducere, dare, rapere, or when it is linked with the adjective ulti- mum. The legal texts in which it appears to stand for punishment are corrupt. Thus supplicium stands mostly for torture, and sum­mum supplicium is the most serious kind of torture.

But, in the first place, it is not proven that ultimum supplicium means, invariably, death simple. Celsus wrote: ‘ultimum sup­plicium esse mortem solam interpretamur.’^[123] Yet mortem solam might mean not ‘death simple’, but ‘only death.’ Celsus might be thinking not of death without the preliminaries of flogging or torture, but of the death penalty in one of its forms, as opposed to the other penalties. Besides, ultimum supplicium and summum supplicium are both applied to slaves and to free men.¹ There is thus no certainty that the former term can never mean the same as the latter.

Secondly, supplicium by itself does seem to stand both for death³ and for penalty in general;³ and there is no passage in the Digest where it clearly stands for torture.⁴

Finally, death by torture was just as illegal as death by beating.⁵ It is therefore unlikely that summum supplicium was ever officially thought of, or defined, as torture which brought death.

¹               Ultimum supplicium for slaves: Dig. 29. 5. 1. 28 (Hadr./Ulp.); 48. 8. 4. 2; 48. 10. 1. 13 (suspected by Brasiello, op. cit. 251). For the free: Dig. 1. 5. 18 (Hadr./Ulp.); 48. 5. 39. 8 (Pius/Pap.); 48. 6. 5. 2; 48. 9. 9. 1 (‘capitis poena plectentur aut ultimo supplicio mactantur’. The second alternative is ruled out by Brasiello, op. cit. 251-2, following Levy, op. cit. 363, because of the rarity of the verb mactare. The only other occurrence of the word in legal texts is CTh 9. 16. 7, a.d. 364); 48. 19. 29.

Summum supplicium for slaves: Dig. 12. 4. 15 ; 48. 10. 8; PS 3. 5. 8; 5. 12. 12;

5.   21. 4; Coll. 1. 6. 4. For the free (or for those of unspecified status): Dig.

47.   n. 1. 2« PS 5. 4. 14; 48. 19. 28 praef.; ibid. 28. 14; ibid. 38. 5 = PS 5. 23. 14; PS 2. 24. 9; 5. 23. 17.

²               Dig. 38. 2. 14. 3, where the term bears this meaning, was rejected by Brasiello on flimsy grounds (op. cit. 100 ff., 254). But 48. 9. 2 has not been noticed. Cf. perhaps 2. 1. 12 and 49. 1. 6. In 47. 18. 1 praef.; 48. 19. 19; 49. 16. 13. 6, the term might mean death or penalty generally.

³               Brasiello (254-6) found four places where the term means penalty, but dis­missed them as additions: Dig. 28. 3. 6. 7; 48. 19. 16. 4 and 10; ibid. 28. 16; but again there are others. See 1. 18. 14; 40. 12. 7. 4; 48. 3. 3; ibid. 12 praef.;

48.    18. 7; 48. 19. 6 praef.; PS 5. 4. 7; and see n. 2 above. If these too are to be rejected, then there are grounds for questioning the criteria of interpolation.

⁴               The argument is one of elimination, and Brasiello finds it unnecessary to argue at length for the possible meaning which remains after the other two have been ruled out (ibid. 256-7). He is content to refer to passages in the Digest concerning the S.C. Silanianum, and to comment, vaguely, that the ‘finalità’ of the S.C. cancels out the possibility that supplicium here indicates a punish­ment which consists in, or culminates in, death. See Dig. 29. 5. 1. 12; 13 ; 21 ; 30; ibid. 3. 16-17; 5· ² J 14. In these texts supplicium is used in combination with quaestio, a common word for torture—a surprising usage if the words are synonyms—and otherwise it is joined with sumere in a construction which could mean ‘to exact a punishment’ or ‘to exact (a punishment which is) death’. (For supplicium sumere see also 2. 1. 12; 28. 3. 6. 7; 47. 18. 1 praef.) In the following passages supplicium could possibly, but only possibly, stand for torture: 2. 9. 5 ; 30. 53. 8; 35. 2. 39; 40. 12. 7. 4. In the last three cases the phrase supplicio adficere occurs, a formula which crops up in 1. 18. 14 and 48. 19. 6 praef., where, however, supplicium means penalty. ⁵ Dig. 48. 19. 8. 3.

What then can be said of summum supplicium ? In the Hadrianic constitutions¹ summum supplicium and capite puniri are placed at the head of two distinct groups of penalties. Thus the former term is not likely to have been identical with the latter, which normally stood for simple death. There is no definition of the former term in the sources, but they enable us to identify it with penalties such as crucifixion, burning alive, and perhaps condemnation to the beasts. These were all aggravated forms of the death penalty, which, in the sources, are set off against simple death by decapitation.²

Our knowledge that honestiores escaped summum supplicium (in the Severan age at least) derives largely from a passage of Ulpian, which runs: ‘Those are the penalties which are customarily im­posed. But it should be recognized that there are differences in penalties, and not all condemned men can be sentenced to the same penalties. Above all, decurions cannot be condemned to the mines nor to any labour connected with mines, nor to the fork, nor to be burned alive.’³ He cites no Imperial rescript or edict relating to furca or crematio or bestiae or crux. Nor does any other lawyer. Much later, Diocletian and Maximian issued the pronouncement: ‘Sons of decurions ought not to be thrown to the beasts.’⁴ It would be wrong to regard this as the first Imperial comment either on the exemption of decurions from bestiae or

¹               Dig. 48.19. 28. 13-14.

²               Coll. 8.4.1 (= Coll. 1. 2. 1-2 = PS 5. 23. 1); Coll. 12. 5. 1; PS 5. 23. 16; 5. 25. 1; 5. 29. 1; Dig. 49. 16. 3. 10-11. In the last reference torture is a pre­liminary to bestiae and furca. This would be odd if bestiae and furca were held to be forms of torture rather than forms of death. In Dig. 48. 10. 8 (Ulp.) bestiae is apparently contrasted with summum supplicium·, in 48. 19. 29 (Gaius) it is treated as an instance of ultimum supplicium, in a passage where summum supplicium could probably have been used. Dig. 48. 19. 28 praef. and PS 5.

17.   2 include decapitation among penalties which make up summum supplicium. The plural summa supplicia in the second text indicates a non-technical use. The alternative would be to hold that the term summum supplicium was at some stage after the classical legal period applied to any penalty at all which involved death (see Brasiello, op. cit. 267); or simply that the sources are inconsistent.

³               ‘istae fere sunt poenae, quae iniungi solent, sed enim sciendum est discrimina esse poenarum neque omnes eadem poena adfici posse, nam in primis decuriones in metallum damnari non possunt nec in opus metalli, nec furcae subici vel vivi exuri.’ Dig. 48.19. 9. 11; cf. 28. 3. 6.10, where the exemption of decurions from damnatio ad bestias is cited as an example of a general principle. On furca (and crux) see p. 128.

⁴               ‘decurionum filii non debent bestiis subici.* CJ 9. 47. 12. Relevant also to sons of decurions are 9. 41. 8 and 9. 41. 11. 1 (both Diocl. and Max.).

on the exemption of their sons. It would be similarly out of place to infer from the passage of Ulpian that decurions were liable to those penalties which he recorded until he wrote those words. In fact the whole system of privilege in the field of penalties can be deduced from Hadrian’s edict which rules out capite puniri in the case of decurions.¹ At the moment it is enough to make the first step in the deduction: if decurions could not be executed {capite puniri), then it is reasonable to suppose that they also escaped summum supplicium. So we may take it that the general principle which Ulpian illustrates in the passage quoted was incorporated into Roman legal practice well before the time of Caracalla.

We may now look more closely at the individual penalties which are instances of summum supplicium.

'Vivus exuri' or 'crematio'. This penalty stands with furca (the ‘fork’) and capitis amputatio (decapitation) at the top of the table of penalties compiled by Callistratus.²

Occurrence of the penalty is rare in the Republic and early Empire. In the Twelve Tables it is a penalty for arson:

qui aedes acervumve frumenti iuxta domum positum combusserit, vinctus verberatus igni necari iubetur, si modo sciens prudensque id commiserit.³

The cremation of the Pompeian Fadius was one of the atrocities committed by Balbus in Spain.⁴ The fact that the victim pleaded that he was a citizen may indicate that the use of the penalty against citizens was irregular. But Fadius could have appealed only to tradition, and not law. In a Giessen papyrus the Emperor Gaius gives orders for an accuser The penalty envisaged might be branding rather than burning to death, although Musu- rillo was led to favour the latter by the brevity of phrase and by the wider context.⁵

¹                                                                                                                                                                                                     Dig. 48. 19. 15, and see p. 155.        * Dig. 48. 19. 28 praef.

³               Dig, 47. 9. 9: *A man who burns a house or a heap of corn next to a house is to be bound, beaten, and burned alive, provided he knew what he was doing and foresaw the consequences.’ On this passage see Mommsen, op. cit. 837 n. 1.

⁴Cic. ad fam, 10. 32. 3.

⁵P, Giss. 46 = H. A. Musurillo, The Acts of the Pagan Martyrs _t in. iii.

11. 24-5, pp. 14 and 112 ff. There is no parallel elsewhere in the Acts.

Nero burned Christians in Rome after the Fire.¹ Subsequently crematio was a common punishment for Christians. The cases of Polycarp and Pionius are conspicuous.^{[124] [125]} Vespasian tortured and burned alive the leader of the Jewish revolt in Cyrene, Jonathan.^[126]

Commodus gained a belated revenge on the descendants of Avidius Cassius, the rebel against Marcus, by giving them to the flames: ‘quasi in factione deprehensos’.^[127] Finally, Macrinus, according to the biographer, had a reputation for being blood­thirsty, and made frequent use of slave penalties. He is said to have always burned adulterers alive.^[128]

The legal evidence shows that crematio, at least in the period of the classical lawyers, was for slaves and free humiliores. Cal- listratus wrote: ‘Mostly slaves are burned alive, slaves who have plotted against the life of their masters; also, on occasions, free men of the plebeian order and men of low status.’^{[129] [130]} According to Ulpian, those guilty of sacrilege were sometimes burned alive,’ and the penalty was still in use in his time for arson.^[131] Subsequently crematio was extended to other crimes. In Paul’s Sentences it is prescribed for deserters,^[132] magicians^[133] and for humiliores found guilty of maiestas.'¹

Crux\ The lawyer Macer wrote of slaves that they were punished after the example of men of low rank: Tn servorum persona ita observatur, ut exemplo humiliorum puniantur.’¹ The sequence might have been reversed. When one examines the forms of punishment used on humiliores, one is struck by the connection with, and the derivation from, typical slave punishments. By the end of the second century some penalties, which in the late Re­public and early Empire had been applied to slaves, were commonly used in the punishment of ordinary free men of humble origin and status, including, presumably, citizens. Crucifixion was the standing form of execution for slaves.² When Asiaticus the freed­man received a servile supplicium at the hands of Mucianus, we can take it as probable that he was crucified.³ Galba, when governor of Baetica, crucified a Roman citizen.⁴ Suetonius represents the action as outrageously cruel. The victim is reported to have ‘im­plored the laws’ and ‘testified to his Roman citizenship’. The implication is not that there was a law prohibiting the crucifixion of citizens, but rather that the punishment was properly and normally employed against slaves and perhaps humble aliens. Galba’s act had been foreshadowed by Verres’ treatment of Gavius in Sicily.⁵ Furthermore, in the reign of Nero, Gessius Florus scourged and crucified some Jews in Jerusalem, including some equestrians.⁶ On other occasions Jewish rebels suffered crucifixion. Quadratus, the governor of Syria, crucified some during a troublesome disturbance in the procuratorship of Cuma- nus? Felix crucified many brigands in quelling more strife.⁸ A political charge was at least aired in the trial of Christ;⁹ later, the cross was frequently used for the punishment of Christians, at least from the time of Nero.¹⁰

* Dig. 48. 19. 10 praef.

²               For crucifixion of slaves see Cic. pro Cluentio 187; Vai. Max. 8. 4. 2; Livy 22. 33. 2; Suet. Dorn. 10; SHA Pert. 9. 10. Tarquinius Priscus crucified citizens: Pliny, n.h. 36. 107; Servius on Aen. 12. 603. In general, see Mommsen, Strafr. 918 ff.; Hitzig, RE 4 (1901), 1728-31, s.v. crux; Leclercq, ibid. 2429.

³                                                                                                                                                                                                                     Tac. Hist. 4. 11.         ⁴ Suet. Galba 9.

^s Cic. in Verr. 5. 162, cf. 12.                                          ⁶ Jos. BJ 2. 301 ff.

⁷ Jos. AJ 20. 129.                                                           ⁸ Jos. BJ 2. 253 ff.

⁹               On the nature of the charge see A. N. Sherwin-White, op. cit. (see p. 75 n. 3), ch. 2, 24-47.

¹⁰            Tac. Ann. 15. 44; Sen. ad Marc. 20. 3; de vita beata 19. 3; ep. 14. 5; Justin, dial. no. 4; Tert. apol. 12. 3; 50. 12; de praescr. 3 with scorp. 15 (Peter); ad mart. 4. 2 and 9; ad nat. 1. 3; 1. 18 fin.; Cypr. de hab. virg. 6 fin.; Eus. EH 2. 25. 5, cf. 3. 1. 2; 3. 32. 6; 8. 8; Acta Carpi, et al. (K-K, no. 2, p. 8;

The crux was banned by Constantine, and the furca put in its place.¹ (The criminal apparently hung by the neck from a wooden fork until he was dead.)* Thus the Severan jurists, as emended by the Justinianic compilers, record exemption from the furca for decurions and soldiers.³ In Paul's Sentences, how­ever, which is pre-Constantinian, we read that kidnappers who were humiliores were crucified or sent to the mines.⁴ Murderers of the same status were either thrown to the beasts or crucified,⁵ and those found guilty of impia or magic faced the same alter­natives.⁶ Any offender against the Cornelian law on falsum was punished with metallum or crux if of low birth, according to Paul's Sentences.’’ No exemption from crux is recorded explicitly, then, in this source, but it is implicit in the variant penalties set for honestiores and humiliores.

There is some doubt about the form of physical apparatus used for the punishment in the Severan period. Mommsen thought that the Republican brand of furca was identical with crux, but this is implausible. Traditionally, the man condemned to the furca, commonly a slave, was bound to a wooden apparatus with a fork and perhaps a crosspiece.⁸ He was then made to carry the wood on his neck around the neighbourhood, thus earning the nickname of furciferP He was often, if not always, beaten in addition. But this beating was normally only a preparation for a death brought on by other means, for example, crucifixion— which had a separate existence in Republican times.¹⁰

divifr. or Decius), 3-5 (Latin text). There are a few references to crucifixion (not of Christians) in the SHA; see, e.g., Avid. Cass. 4. 2 ff. and 6; Pert. 9. 10; Sev. 4. 3; Macr. 12. 2; Al. Sev. 28. 5.

¹               Aur. Viet. Caes. 41. 4; Sozomenus, EH 1. 8; etc. The last reference to crucifixion is CTh 9. 5. 1, a.d. 314. On furca, Mommsen, op. cit. 919 if.; Hitzig, RE 7. 1 (1910), 305-7, s.v. furca; Brasiello, op. cit. 458; R. Bonini, I'Libri de cognitionibus* di Callistrato (1964), 87 n. 19. For the substitution of furca for crux in the Digest cf. 48. 19. 38. 2 and PS 5. 22. 1.

²  Isid. orig. 5. 27. 34 and Mommsen, op. cit. 921 n. 2.

³               Dig. 48. 19. 9. 11 (Ulp.); 49. 16. 3. 10 (Mod.). Other refs, to furca include 48. 13. 7; 48. 19. 28 praef.; ibid. 38. 1.

* Coll. 14. 2. 2.                       ^s PS 5. 23. i.                            ⁶ Ibid. 15; 17.

⁷ PS 5. 25. 1.                                                           ⁸ Hiteig, op. cit. 306-7.

⁹   e.g. Plaut. Most. 69 and 1172.

¹⁰            Crucifixion in Republican times: Pliny, n.h. 18.12 {XII Tob/es); Mommsen, op. cit. 918 n. 6; Livy 1. 26. 6; Cic. pro Rab. 5. 16, etc.; in Verr. 5. 162if. The traditional’ {more maiorum) punishment seems to have been a variation of the

However, it is safe to regard crucifixion, whatever precise form it took, as traditionally a slave penalty,¹ from which honestiores were exempt under the Empire, but not humiliores.

'Bestiae¹. An excerpt from Ulpian seems to provide a scale of severity for capital punishments.² It may be deduced that con­demnation to the mines ranked lowest of the capital penalties to which men of low status were subject; that exposure to wild beasts was the least severe of those penalties mentioned which caused death (decapitation is omitted from the passage); that it was amore common punishment for sacrilege than burning alive or the fork (that is, in the classical period, crucifixion); and that for the less serious forms of sacrilege it was the highest rung on the ladder of possible penalties.³

Damnatio ad bestias was little known in Republican times. Scipio Africanus, victorious over Carthage, followed the example of his father Aemilius Paullus, who triumphed in Macedonia, when he held games and threw deserters and runaway slaves to the beasts.⁴ The victims were of alien, not Roman, origin.⁵ Further, it seems to have been common practice for a governor to supply human victims to a Roman aedile for his games. Piso sent some for Clodius, and Cicero was asked to provide them for Caelius, presumably for the same purpose. These, were again punishment of furca, and was not identical with crux. See Suet. Nero 49. 2; Aur. Viet. epit. 5. 7; Livy per. 55.

¹               lang=EN-US>A second assertion of Mommsen, that crucifixion was the oldest form of magisterial execution for free citizens, has little to support it. The punishment of the lovers of the Vestal Virgins, which he cites, belongs to the realm of family law, not public law. See refs, in Mommsen, op. cit. 919 n. 1, and Hitzig, op. cit. 306. And if traitors were crucified, it was because they were deemed to have forfeited their rights as citizens.

²               Dig. 48. 13. 7: ‘Sacrilegii poenam debebit proconsul pro qualitate personae proque rei condicione et temporis et aetatis et sexus vel severius vel clementius statuere, et scio multos et ad bestias damnasse sacrilegos, nonnullos etiam vivos exussisse, alios vero in furca suspendisse, sed moderanda poena est usque ad bestiarum damnationem eorum, qui manu facta templum effregerunt et dona dei in noctu tulerunt, ceterum si qui interdiu modicum aliquid de templo tulit, poena metalli coercendus est, aut, si honestiore loco natus sit, deportandus in insulam est.’

³               The same passage may seem to imply that crematio was less severe than furca (‘nonnullos etiam vivos exussisse, alios vero in furca suspendisse’), but the order is reversed in Dig. 48. 19. 9. 11.

⁴  Livy, per. 51.

⁵               Vai. Max. 2. 7. 13 (146 B.C.: exterarum gentium transfugas).

non-Romans.¹ On the other hand, Balbus’ action in throwing Roman citizens to the beasts in Spain is regarded by Cicero’s correspondent Pollio as highly irregular.² But there was no law to prevent it.

In the same way, if an Emperor wished to subject someone of high status to this undignified and cruel form of death, there were no legal means of preventing him. Gaius condemned to the beasts men of high rank, honesti ordinis, and not always for offences of any gravity.³ At least one Roman knight met his end in this way. The next Emperor, Claudius, is said to have had men thrown to the beasts for serious breaches of the law:

et in maiore fraude convictos legitimam poenam supergressus ad bestias condemnavit.⁴

Under Nero Christians were torn to pieces by dogs.⁵ More ‘scruple’ was shown by the governor of Lugdunensis in Marcus’ reign—he sorted out citizens from aliens and sent the latter to the beasts.⁶ Other references from the pre-Severan period demon­strate that the penalty was employed against slaves,⁷ foreign foes,⁸ and free men guilty of a few very serious or notorious of­fences.⁹

¹ Cic. in Pis, 89 (socios stipendiariosque)\ cf. ad Jam, 8. 4. 5.

² Ibid. 10. 32. 3.

² Suet. Gaius 3-4; cf. Dio 59. 10. 3.

⁴               Suet. Div, Cl, 14: «he condemned to the beasts those found guilty of rela­tively grave crimes, exceeding the penalty set by the law/

⁵  Tac. Ann, 15. 44.

^{6"Times New Roman"'>}               Eus. EH 5. 1.47. Christians were often condemned to the beasts. See Pass, Perp, et Fel. (K-K, no. 8, p. 35; a.d. 203), 6. 4; Acta Kononis (K-K, no. 14, p. 64; Valerian?), 5. 5; Cypr. de hab, virg. 6 fin.; Eus. EH 8. 7. 4-6; Tert. apol. 12. 4; 40. 2; 50. 12; ad mart. 4; ad Scap. 3. 6; ad nat, 1. 3 fin. Polycarp narrowly escaped this form of death: Mart. Poly c, (K-K, no. 1, p. 1), 11. See H. Leclercq, DACL i (1924), 452 if., s.v. ad bestias.

⁷               The freedom of masters to send slaves to the beasts was restricted some­what, in theory, by the Petronian law of (probably) Tiberian date. Dig. 48. 8. 11. 2; cf. Apion in Gellius 5. 14. 27.

⁸               See S. Aurigemma, I Mosaici di Zliten (1926), 180 ff., fig. m^a, m^b, 112; also Aurigemma, L* Italia in Africa: Le scoperte archeologiche, 1911—43» Tripoli* tania, vol. i, pt. 1 (i960), tav. 151-2, 154. The author associates these mosaics with the punishment of the Garamantes in Flavian times (see vol. i, pt. 1, p. 14, and vol. i, pt. 11, p. 56).

♦ e.g. Hadrian prescribed this penalty for parricide as an alternative to the traditional ‘penalty of the sack’, but presumably only for those of low birth or position. See Dig. 48. 9. 9, praef., cf. 48. 19. 15. See Cicero’s comment on

The Severan sources indicate that men were thrown to the beasts in that period for rustling,¹ murder (and other offences covered by the Cornelian law),² and sacrilege.³ The application of the penalty in all these cases was probably a recent development, although this is only demonstrable in the case of rustling.⁴ Severan texts also include reference to exemptions from bestiis subici. Ulpian considered that a decurion condemned to the beasts was damnatus illicite* In another passage he stated that for the crime of arson those in aliquo gradu were executed or deported, but those in humiliore loco went to the beasts.⁶ Veterans⁷ were spared the beasts, and soldiers⁸ also, unless they were traitors.

By the end of the third century, bestiis subici and crux were the sole penalties prescribed for accomplices in magic⁹ and for those who indulged in sacra impia nocturnave.¹⁰ There was apparently no alternative to bestiis subici for armed burglary of a temple at night.¹¹ It seems that the area of privilege receded, as certain crimes were adjudged too serious to warrant a ‘moderate’ penalty.

2 (b) 'Metallum' and 'opus publicum*

In the Hadrianic rescript, the penalties in custodiis are placed in the following order: summum supplicium, metallum, (sc. opus) inperpetuum, (sc. opus) in tempus.^u The rescript, then, recognizes after summum supplicium only two important categories, metallum and opus publicum. The first task is to assess the state to which the two penalties brought the condemned man. An attempt will be damnatio ad bestias as a possible penalty for parricide, Sex. Rose. 71. See also SHA Comm. 18. 10 (delatores)', Dio 73. 16. 5, with SHA Sev. 14. 1 (murderer of Commodus).

¹                                                                                                                                                                                                                           lang=EN-US style='font-style: italic'>Coll. 11. 8. 4.          » Dig. 48. 8. 3. 5.

³               Dig. 48. 13. 7; cf. PS 5.19.

*       Hadrian had recommended condemnation to mortal combat and to the mines as the harshest penalties for these criminals. See Coll. 11. 7. 1-2. Cf. 11. 8. 4 (Ulp.). For damnatio ad gladium, damnatio in ludum gladiatorium, ibid. 11. 7. 4; Dig. 48. 19. 8. 11-12. Other references include Dig. 29. 2. 25. 3; Coll. 4. 3. 2; and see Brasiello, op. cit. 382 if.

³Dig. 28. 3. 6. 10.                           ⁴ Dig. 47. 9. 12. 1; cf. Coll. 12. 5. 1 ff.

⁷ Dig. 49. 18. 3; cf. ibid. 1.                                           ⁸ Dig. 49. 16. 3. 10.

♦                                                                                                                          PS 5. 23. 17. to Ibid. 15.

” PS 5. 19. For this offence bestiae was the maximum, and not the sole, penalty, when Ulpian wrote. See p. 129 n. 2, above.

¹³ Dig. 48. 19. 28. 14.

8251947                                                                     K made at the same time to explain the various terms used for these penalties by the jurists.

Metallum comes next after death in severity: ‘Deinde proxima morti poena metalli coercitio.’¹ The condemned man lost not only citizenship, if he possessed it, but also liberty.² He was a ‘slave of the penalty’ (servus poenae), with no right of making a will or receiving from a will.³ He was loaded with chains, and beaten like a slave.⁴

The phrase in perpetuum, in Hadrian’s usage, covered both opus perpetuum and opus metalli. In another rescript he made a precise distinction between opus metalli and metallum, while insisting that opus metalli like metallum, was a life sentence. Metallum but not opus metalli deprived a man of his freedom. Callistratus quotes the rescript: ‘No one ought to be condemned to work in mines [opus metalli) for a restricted term; rather, he who has been condemned for a restricted term, even if he does work in mines [metallicum qpwj] should not be held to have been condemned to the mines [metallum). For his freedom remains, as long as the freedom of those condemned to public labour for life [perpetuum opus).’^s By the Severan period, however, it was evidently felt that no man could perform metallicum opus and retain his freedom. Both metal­lum and opus metalli were held to deprive free men of freedom,⁶ and Callistratus placed them together among penalties by which existimatio or dignitas were ‘consumed’ rather than ‘diminished’, and by which magna minutio capitis was suffered.⁷ In addition,

¹               Dig. 48. 19. 28. praef. As the text suggests, the punishment was originally not a‘legal’penalty, but an aspect of coercitio. See Dig. 1. 12. 10 and 37. 14. 1 (metallum as coercitio for a freedman for physical injury to his patron). On metal­lum and opus publicum see Mommsen, op. cit. 949 ff.; Brasiello,op. cit. 36off.

²Dig. 40. 5. 24. 6; 48. 19. 8. 4; 49. 14. 12.

³               Dig. 28. 3. 6. 5-7; 29. 1. 13. 2; 49. 14. 12. For other disabilities see Dig. 34. 1. 11; 40. 1. 8 praef. On servus poenae see Brasiello, op. cit. 416-46; below, p. 165.

⁴               Dig. 48. 19. 8. 6 (chains); Dig. 49. 14. 12 (beating). He was probably also branded. See Suet. Gaius 27. 3; CTh 9. 40. 2, a.d. 315.

³ Dig. 48. 19. 28. 6: ‘In opus metalli ad tempus nemo damnari debet sed qui ad tempus damnatus est, etiamsi faciet metallicum opus, non in metallum damnatus esse intellegi debet: huius enim libertas manet, quamdiu etiam hi, qui in perpetuum opus damnantur.’ Brasiello (op. cit. 380) brackets ‘quamdiu... damnantur’. ⁶ Dig. 48. 19. 8, 4.

⁷ Dig. 50. 13. 5. 3. This is not a homogeneous group. The loss of libertas cannot be its distinguishing feature, as deportati retained libertas.

Ulpian thought the only difference between opus metalli and metal­lum was the weight of the chains used.¹ Thus for the Severans perpetuum in the (first) Hadrianic rescript could have stood only for forced labour (opus) elsewhere than in the mines.

The jurists placed opus publicum among the penalties by which existimatio was diminished. The condemned man lost dignitas but not libertas. This explains the irregularity which Papinian detected in sending a slave into opus publicum temporarium or perpetuum. These penalties were normally for free men, and they remained free men even after sentence.²

This interpretation of opus perpetuum is confirmed by a rescript of Pius, asserting that this penalty and deportatio had the same consequences for the status of the condemned man.³ The jurist Marcianus puts these two penalties side by side, as equally depriv­ing the condemned man of his citizenship.⁴ Freedom, however, was not lost, certainly not in the case of deportati, nor in all prob­ability in the case of those sent to opus perpetuum. A passage of Ulpian raises a slight doubt.^s He links opus perpetuum with opus metalli as alternative, stiffer penalties for the fugitive from opus publicum (temporarium). But it does not follow from his remarks that opus metallum and opus publicum perpetuum were equally severe.

To sum up, opus perpetuum had in common with opus metalli and metallum, but also with deportatio, the fact that it was a life sentence. Like deportatio, but unlike the other penalties, it did not take away freedom. It is best to regard opus perpetuum as an extended opus publicum temporarium. A man who was transferred from the latter to the former did not undergo a change in status. Hence the series of penalties in the Hadrianic rescript runs: in

¹Dig, 48. 19. 8. 6.

²               Dig. 48. 19. 34 praef.; but see ibid. 10 praef. (Macer): when a free man is beaten and sentenced to opus publicum, the slave suffers poena vinculorum, is whipped with flagella, and sent back to his master. Only if he is not received by his master is he dispatched into opus perpetuum.

³               CJ 9. 47. 1: ‘etiam in opus perpetuum damnati non dissimilis condicionis sunt ab his qui deportantur in insulam.’

⁴               Dig. 48. 19. 17. 1: ‘item quidam anoXiSes sunt, hoc est sine civitate: ut sunt opus publicum perpetuo dati et in insulam deportati, ut ea quidem, quae iuris civilis sunt, non habeant, quae vero iuris gentium sunt, habeant.’

⁵  Ibid. 8. 7.

tempus (a species of o/>us), inperpetuum (again a species of opus, but including, for Hadrian, opus metallicum), in metallum. Opus publi­cum and metallum are the two main categories. By the former the dignitas of the condemned was affected, by the latter his libertas also.

The early history of forced labour as a criminal sentence in Rome is badly documented.¹ Metallum and opus were both recog­nized penalties under Tiberius and Gaius. Both Emperors are said to have imposed them on men of rank, and this was clearly considered outrageous.² A Trajanic governor of Africa, Marius Priscus, had an equestrian (probably a member of the local gentry) beaten, condemned to the mines, and strangled in prison.³ It has already been suggested that the action of Priscus was irregular, not just because of the presumed innocence of the victim, but also because of the degrading punishments which were inflicted on him.⁴ The condemnation to the mines of Flavius Archippus for falsum in Domitian’s reign by the governor of Bithynia, Velius Paulus (apparently without irregularity), is not necessarily in­consistent with the theory that this penalty, when used at all of capital offences, tended to be applied to ordinary citizens or plebei­ans even as early as the latter half of the first century.⁵ Nothing is known of the status of Archippus before his condemnation. It is not certain that he was already a Roman citizen. Domitian sub­sequently gave him roughly the census required for the decurionate, but there is no sign that Archippus had lost a similar amount at the time of his conviction through confiscation. Further, his pro­fession as a philosopher may tell against any theory that he had already been a local politician.⁶

Condemnation to opus was known in Bithynia in Pliny’s time.⁷ The status of the offenders is not recorded.

¹For the treatment of men condemned to mines see Mommsen, op. cit. 949 ff.

²Suet. Tib. 51.2 (an equestrian sentenced to the treadmill); Suet. Gaius 27. 3 (‘multos honesti ordinis deformatos prius stigmatum notis ad metalla et muniti- ones viarum... condemnavit’)*

³     Pliny, Ep. 2. 11. 8.                                                              ⁴ See pp. 54 ff*

⁵Pliny, Ep. 10. 58 ff. Cf. Dig. 49. 15. 6: a slave woman is sent to hard labour in the British salt mines in A.D. 84-6 (see E. Birley, Roman Britain and the Roman Army (1953), 87 ff.).

⁶     On the other hand, it might imply that he was a man of means.

⁷     Pliny, Ep. 10. 31-2.

The exemption of decurions from metallum and opus metalli is not explicitly mentioned in our texts until Ulpian touches on the topic in his treatise on the duties of a proconsul: 'For, above all, decurions cannot be sentenced to the mines [metallum} or mine work [opus metalli}, nor to the fork, nor to be burned alive.’¹ No reference is made to any authorities, and Ulpian is in fact describing current practice, which, I suggest, had its roots well in the past.

Pius issued an edict about the punishment of those who stole gold or silver from Imperial mines. The penalty was exile or metallum, according to the dignitas of the offender:

si quis ex metallis Caesarianis aurum argentumve furatus fuerit, ex edicto divi Pii exilio vel metallo, prout dignitas personae, punitur.¹ If this edict is set beside other pronouncements of the same Em­peror, it can be deduced that decurions would not have gone to the mines.³ Nor is Pius likely to have been the first Emperor who took this view.

Caracalla, in a rescript, spoke of exemptions from metallum and opus publicum for the sons of veterans.⁴ They could expect relegation to islands. Caracalla did not award the privilege, but treated it as an established fact. According to Marcianus, veterans and their sons had honor equal to decurions, ‘and therefore will not be sentenced to the mines or to public labour, nor are they exposed to the beasts, nor beaten with rods.’³

Metallum and opus metalli were ‘plebeian’ penalties, in the view of Marcianus’ contemporary Callistratus.⁶ The crime of stellionatus, or cheating, was normally punished extra ordinem, Ulpian wrote, and specified that opus metalli was the maximum penalty inplebe- iis.⁷ Metallum was the penalty for commoners who had committed theft (with arms), or tampered with the banks of the Nile, for

¹               Dig. 48.19. 9. 11: *nam in primis decuriones in metallum damnari non possunt nec in opus metalli, nec furcae subici vel vivi exuri’; cf. 50. 2. 2. 2 (Ulp.); CJ 9. 47. 9 (Sev. Al.). The second text is about sons of a decurion, the third about a daughter of a decurion.

² Dig, 48. 13· 8. 1, cf. 48. 19. 38 praef.                         * e.g, Dig, 50. 2. 14.

⁴ lang=EN-US style='font-style: italic'>Dig. 50. 13. 5. 3.             7 Dig. ₄₇. ₂₀. -j. kidnappers of the same rank, for those who married beyond their station, and so on.¹

As for opus, the earliest definite statement to the effect that a decurion should not suffer opus publicum is Caracalla’s: ‘De­curionem in opus publicum dari non oportere manifestum est.’² This was evidently a well-known fact (manifestum est). The same Emperor told Senecio that metallum and opus publicum were prohibited for sons of veterans.³ Ulpian recorded that burglars (effractores) and plunderers (expilatores), corn speculators (dar­danarii) and rustlers (abigei), were sentenced to opus publicum if they were humiliores, rather than motio or relegatio.⁴ Much earlier is Pius’ rescript to Apollonius on the subject of the punishment of the murderer of an adulterous wife.⁵ If humilis loci, he was sentenced to opus perpetuum, if honestior, he was relegated to an island. But the opusjrelegatio alternative probably goes back into the reign of Hadrian at least.

3 (a) Beating and the fine

est enim inconstans dicere eum, quem principales constitutiones fustibus subici prohibuerunt, in metallum dari posse.⁶

To judge from these words of Callistratus, fustibus caedi (subici), or beating, is to be grouped with the penalties for low-status criminals.⁷

What precisely did those who were exempted from beating escape? This question can be answered in two ways, in terms of

¹               Dig. 47. 17. 1 (theft); 47. 11. 10 (Nile); 48. 15. 7 (kidnapping—the penalty was once monetary, cf. Coll. 14. 3. 5); Cf 5. 5. 3.1 ff. (319) (marriage); see also PS 1. 21. 4; ibid. 5; 2. 19. 9; 5. 19; 5. 19a; 5. 20. 2; ibid. 5; 5. 23. 4; ibid. 12; 14; 5. 25. 8; ibid. 10; 5. 26. 3; etc. Christians were frequently sent to the mines. See Tert. apol. 12. 5; 27. 7; cult. fem. 1. 5 praef.; Cypr. ep. 77; 76. 1-2 and 6, etc.; Eus. EH 8. 12. 10; 8. 13. 5:9. 1. 7; MP 7. 2-3; 8. 1 and 13; 9. 1; 11. 6. H. Leclercq, DACL i. 467-74, s.v. ad metalla.

¹ Cf 9. 47. 3: ‘It is plain that a decurion ought not to be sentenced to public labour.’

» Ibid. 5; cf. Dig. 49. 18. 3.

⁴               Dig. 47. 18. 1. 2 (burglars); ibid. 1. 1 (plunderers); 47. 11. 6 praef. (com speculators); 47. 14. 1. 3 (rustlers).

» Dig. 48. 5. 39. 8.

⁶               Dig. 48. 19. 28. 5: ‘It is inconsistent to say that he who has been exempted from beating by the constitutions of Emperors can be sentenced to the mines.’

⁷On beating see Mommsen, op. cit. 983 ff.; Brasiello, op. cit. 386 ff.; see also JRS 56 (1966), 167 ff.

The military staff, fustis, replaced the rods, virgae (traditionally borne by the lictors), as the instrument of civilian beating, rather as the sword replaced the axe as the instrument of civilian execu­tion.¹ A beating by fustes was not necessarily heavy, although it might be. Verberare is found with fustes, and verberatio is invari­ably a heavy beating.² Yet castigatio or admonitio, a light beating, can also be administered by fustes.³ Anyone who was not liable to fustibus caedi was therefore free from both a heavy and a light beating.⁴

It would be unwise to insist upon a sharp contrast between beating as a poena and beating as an aspect of coercitio. This distinction had lost its precision long before the Severan era.⁵ Nevertheless, it may be retained for the purpose of defining and characterizing the different uses of beating.

There was a group of minor offences, or levia crimina, which the governor was authorized to investigate and punish extrajudicially (deplano) by beating:

levia crimina audire et discutere de plano proconsulem oportet et vel liberare eos, quibus obiciuntur, vel fustibus castigare vel flagellis servos verberare.⁶

Governors also chastised freedmen on behalf of their patrons,

¹               Mommsen, op. cit. 983 and n. 4.

²       Dig. 47. 10. 5 praef.-i (contrast between pulsatio and verberatio)·, ci. ibid.

7.     2: ’leviter pulsaverit vel emendaverit’ (but see ibid. 15. 38: one can verberare a slave to correct or reform him; and 47. 8. 4. 13—where pulsare and verberare are treated as synonyms); cf. 48. 6. 10. 1; 48. 7. 2. Pulsare by itself: Dig. 47. 10. 1. 2; ibid. 9 praef.; ibid. 15. 1.

» e.g. Dig. 1. 12. 1. 10; 1. 15. 3. 1; 1. 16. 9. 3; 47. 10. 15. 30; 47. 11. 7; 48. 2. 6; For admonitio see Dig. 48. 19. 7. Verberatio with fists {pugnae): Dig.

47.   10. 15. 40; Coll. 2. 6. 4.

⁴               Whips (flagella) were normally used on slaves. See, e.g., Dig. 9. 2. 52. 1; 47. 9. 4. 1; 48. 2. 6; 48. 19. 10 praef.; PS 5. 4. 22. Cf. Philo, in Flacc. 78ff.: different instruments of beating and different wielders of those instruments for Egyptians and for Alexandrians. Philo complained that Jewish ‘councillors’ were treated as if they were Egyptians of the lowest order.

^t Ulpian wrote this of poena·, ‘(cum) poena generale sit nomen omnium delictorum coercitio’ (Dig. 50. 16. 131. 1).

⁶               Dig. 48. 2. 6: ‘The proconsul is authorized to hear and investigate petty offences extrajudicially, and either free the accused, or chastise them with rods (or if they are slaves, flay them with whips).’ Such offences were barely ‘crimes’, according to Roman law.

either verbally or fustium castigatione.¹ They might also inter­vene in a civil disturbance to preserve order, with a swift act of coercitio which involved beating.²

Secondly, beating regularly preceded opus publicum³ or metal- lumS Beating before execution was an old-established practice.⁵

Finally, beating is found as an alternative to other punishments, relegatio and opus (Callistratus classed all three as poenae ad existimationemf* and the fine. The pairing of beating and the fine was especially apt. If beating was a handy punishment for any minor offence, a fine was levelled, according to Ulpian, ‘when no special penalty was laid down’.⁷ Of the two, beating was regarded as the more severe sanction,⁸ principally because all forms of corporal punishment were held to be degrading. Yet the man of small means and little dignitas might well find beating preferable. In Republican times, when civil law knew only the monetary penalty (and when the cognitio procedure was unavail­able), the poorer section of the population must have suffered considerable hardship when on the losing side in litigation. They were forced through debt to sell their meagre possessions, take out credit at unfavourable rates, and ultimately fall victim to the

¹               Dig. i. 16. 9. 3; 47. 10. 7. 2 (‘ceterum levem coercitionem utique patrono adversus libertum dabimus’); and see 37. 14. 1. The chastisement was not necessarily light. See Dig. 1. 16. 11 (the proconsul has atrociter verberandi ius).

²               e.g. Tac. Ann. 1. 77 (ius virgarum)\ cf. Suet. Div. Aug. 45. 3; PS 5. 21. 1 (note the connection with expulsion); see also Dig. 48. 19. 28. 3; Acts 21: 33 (arrest of Paul). Beating in the course of interrogation (for intransigence, i.e. contumacia (?)): Acta Maximi (K-K, no. 12, p. 61; Decius) 2. 1.

³               Dig. 47. 9. 4. 1; 47. 21. 2; 48. 19. 10 praef.; 49. 14. 18. 2; PS 5. 18. 1 = Coll. 11. 3.

* Dig. 47. 9. 4. 1; 49· 14· 12.

³               Dion. Hal. 9. 40. 3; Sall. Cat. 51. 21; Dig. 47. 9. 9 (cf. Gai. Inst. 3. 189; Gellius 11. 18. 8); 48. 9. 9 praef.; Dio 54. 7. 6; Mark 15: 15; Matt. 27. 26; Jos. BJ 2. 306.

⁶               Dig. 48. 19. 28. 1; cf. 50. 13. 5. 2. Dig. 48. 19. 10. 2 implies that beating was milder than opus temporarium. Flogging to death was a traditional punish­ment reserved for certain crimes. See Gellius, 10. 3. 5; 17. 21. 24; Livy 22. 57 (216 B.c.); Dion. Hal. 8. 89. 5; 9. 40. 4; Suet. Nero 49, with Aur. Viet. epit. 5. 7; Suet. Dorn. 8. 3-4. The penalty was later regarded as illegal: Dig. 48. 19.

8.     3 (Ulp.). For Christians beaten to death see Leclercq, DACL 5. 1638-43, ‘Flagellation’.

^{size=2 color=black face="Times New Roman">7}               Dig. 50. 16. 131. 1: ‘quin immo multa ibi dicitur, ubi specialis poena non est imposita.’

⁸               Dig. 48. 19. 10. 2 (Macer): ‘(quia et) solus fustium ictus gravior est quam pecuniaris damnatio?

savage debt laws and forfeit their freedom. Under the Empire, however, beating replaced the fine for the free man of low status and little property, at least in the criminal courts.¹ Those delicts which were handled extra ordinem could also be punished with either a fine or a beating. The general principle was stated by Ul- pian in these words: ‘It is general policy, in the administration of the laws governing public trials or private crimes, for prefects or governors who judge extra ordinem to apply extra ordinem punishment to those who through poverty escape a monetary penalty.’² But the alternative of pecuniary or corporal punishment was established much earlier than the Severan age, when Ulpian was writing. An early example is found in the edict of L. Geta, the prefect of Egypt in a.d. 54, which ordered either a money payment or corporal punishment—7} apyvptK&s rj au)p.ariK&s KoXacrdriveTat.³ Geta was prescribing actual penalties.

Corporal punishment was traditionally used against slaves⁴ and aliens.⁵ This was written into the laws from the early second century B.C., when a lex Portia granted to Roman citizens the right of appeal against beating as well as execution.⁶ The clause was taken over into the Augustan lex lulia de vi publica, and survived into the age of the classical lawyers.⁷ As late as the reign of Com- modus, the coloni of the saltus Burunitanus in Africa complained to the Emperor that conductores had had them flogged, although some of them were Roman citizens.⁸

¹               Dig. 2. 1. 7. 3 (Ulp.): ‘in servos... et eos qui inopia laborant’; 47. 9. 9;

48.    1. 2; Cy 6. 1. 4. 2 (a.d. 317)· For fining as an alternative to imprisonment (of one sort or another) see Dig. 11. 5. 1. 4. Fine by itself: Dig. 47. 12. 3. 5 (Hadr.; for magistrates and others unspecified).

*       Dig· 48. 19. 1. 3: ‘generaliter placet, in legibus publicorum iudiciorum vel privatorum criminum qui extra ordinem cognoscunt praefecti vel praesides, ut eis, qui poenam pecuniariam egentes eludunt, coercitionem extraordinariam inducant’; Cy 2. 11. 5 (a.d. 198): beating or ignominia.

’ OGIS 2. 664.

⁴                                                                                                                                                                                                                                                           Dig. 49* 14* t2 (verbera servilia)', Dion. Hal. 9· 40                                                      drbpdirobor)^

Dig. 47. 10. 7. 2. On verberatio for slaves see Dig. 4. 4. 24. 3 (slave or son);

9.     2. 52.1; 21. 1. 17. 4; 44. 7. 34praef.; 47. 8. 4.13-16; 47. 10. 1. 7; ibid. 17. 4; and p. 137 n. 4.

» Tac. Ann. 1. 59. 4 (virgas et securis). See J. L. Strachan-Davidson, Problems of the Roman Criminal Law (1912), i. 126.

⁴               lex Portia·. Sall. Cat. 51. 21 ff. and 40; Cic. de rep. 2· 53; Livy 10. 9.

⁷               lex lulia de vipublica: Dig. 48. 6. 7; PS 5. 26. 1 ff.

•       FIRA¹ i, no. 103, p. 496, col. ii, 11. 10 ff. (a.d. 180-3).

This case should be read beside another, from Egypt.¹ In a.d. 153 the strategos of the Arsinoite nome had C. Mevius Apella, a veteran, soundly beaten by two guards. Apella is found in the papyrus instigating proceedings against the strategos before the prefect of Egypt. As nothing is preserved except a record of the event itself, it is not known whether breach of the lex lulia was the basis of Apella’s case, as it apparently was the basis of the complaint of the African peasants. It may seem unreasonable to doubt this. But Callistratus, writing under Septimius Severus and Caracalla, referred to rescripts of Emperors in which honestiores were specifically exempted from beating.² Callistratus at the same time gave the information that free men of low rank (‘hi... qui liberi sunt et quidem tenuiores homines’) were regularly beaten in his day. One rescript of this type is preserved. Issued in a.d. 198 by Severus and Caracalla, it began:[134] decuriones quidem, item filios decurionum, fustibus castigari prohibitum est.’³ It must be firmly stated that the exemption of decurions did not date from a.d. 198. The sentence quoted should be read closely with the clause that follows. It runs: ‘verum si iniuriam te fecisse proconsul vir clarissimus pronuntiavit, ignominia notatus es.’⁴ Clearly there was nothing new or revolutionary in the opening sentence; the whole rescript was addressed to a particular situa­tion. One Ambrosius, presumably a decurion, had apparently protested against a sentence passed on him by the proconsul, or had lodged an appeal against it. (Alternatively, he was simply complaining about harsh treatment suffered at the proconsul’s hands). The Emperors gave their judgement on the basis of an established principle.⁵ Similarly, the exemption of veterans and their sons from beating did not date from the time when Arrius

Menander put it on record that they were so privileged.¹ There is good reason for thinking that an exemption from beating for a status group that included decurions and veterans is implicit in a rescript of Hadrian of August, a.d. 119.²

The efficacy of the appeal laws is considered elsewhere.³ It may be claimed that they gave no protection to Roman citizens who were not protected for other reasons. Wealth afforded protection from beating, basically because the rich could pay a fine; beating was inflicted on those who could not. But the money payment in lieu of a beating must early have developed into a privilege. In general, the exemption from beating applied to all whose honor called forth reverential

3 (6) Torture

Torture of honestiores was not permitted in the Antonine and Severan periods. But the direct evidence for their exemption is thin, and the few relevant texts are not easy to interpret. Paulus cited a rescript of Pius that is normally held to have excluded decurions from torture:

De decurione damnato non debere quaestionem haberi divus Pius rescripsit.⁵

¹               Cf. Dig. 49. 18. 1 (Arr. Men.); ibid. 3 (Marc.).

²               Dig. 47. 21. 2; cf. Coll. 13. 3. 2; see Cardascia, art. cit. 468-9, and pp. 155 ff. below.

³See pp. 82 ff., 268 ff.

⁴Dig. 48. 19. 28. 5.

³               Dig. 50. 2. 14: ‘Divine Pius ruled in a rescript that a decurion who has been condemned should not be tortured.’ Paulus goes on: ‘Whence, even if he has ceased to be a decurion, and is then condemned, he is not to be tortured, out of respectful memory of his former standing.’ See Cardascia, art cit. 331, on the rescript. An item from the reign of the divi fratres is in apparent contradiction. In Dig. 48. 22. 6. 2 Priscus, presumably a decurion, is said to have confessed ante quaestionem to homicide and arson. The ante is temporal, and quaestio commonly means torture. (See Dig. 47. 10. 15. 41, Ulp.: ‘“Quaestionem” intellegere debemus tormenta et corporis dolorem ad eruendam veritatem.’) Torture of accused men was irregular, although it is known in cases of treason. Quaestio regularly stands also for the whole investigation. It may do so here; or, and this is less probable, Priscus’ confession anticipated the use of torture on witnesses.

The section below deals with the torture of suspects and condemned men, and the arguments relating to the exemption of certain classes from torture. Torture of witnesses is treated elsewhere. See pp. 213 ff. Passages where the circum­stances are not indicated precisely are mainly discussed below.

Ulpian in his Public Disputations apparently referred to the exemp­tion of decurions and their sons from torture. This was observed by Diocletian and Maximian in a rescript which also cited a pro­nouncement of Marcus, excusing the descendants of eminentis- simi viri and perfectissimi viri to the third generation from torture and plebeian penalties. The whole text runs:

Divo Marco placuit eminentissimorum quidem nec non etiam perfectissimorum virorum usque ad pronepotes liberos plebeiorum poenis vel quaestionibus non subici, si tamen propioris gradus liberos, per quos id privilegium ad ulteriorem gradum transgreditur, nulla violati pudoris macula adspergit. In decurionibus autem et filiis eorum hoc observari vir prudentissimus Domitius Ulpianus in publicarum disputationum libris ad perennem scientiae memoriam refert.¹

It may cause surprise that Marcus said nothing of immunity of any other class; also that Diocletian and Maximian cited a jurist rather than an Emperor for similar privileges possessed by decu­rions and their sons, a jurist, furthermore, as late as Ulpian.

To continue with the evidence for exemptions, a passage of Tarrutenus Paternus, who wrote in the second half of the second century, implies that soldiers were not tortured. Deserters and traitors were normally tortured and put to death on discharge, ‘for they are treated as enemies, not as soldiers’.^{[135] [136]} A statement of the Severan jurist Modestinus is more straightforward. After giving the penalties that were inflicted on soldiers, he adds: ‘for they will not be sentenced to the mines [metallum] or mine work [opwj metalli], nor are they tortured.’^[137]

Some ground had been lost by the fourth century. Decurions were subject to torture for falsum.^[138] Anyone might be tortured for magic (and astrology, soothsaying, and so on) or maiestas.¹ Am- mianus² thought that torture of all ranks was permitted by law in treason cases from Sullan times. The fact that the early Emperors used torture on free men in investigating charges of treason and conspiracy does not support this contention. No clause in any law sanctioned this practice; an Emperor tortured with the same freedom as he executed or exiled.

The evidence for the use of torture against free men in the early Empire is in itself worth a brief survey; it may also help solve the problems raised by the rescripts of Pius and Diocletian.

The principle was by and large observed under the Republic that free men were not subject to torture. Augustan laws forbade the torture only of Roman citizens.³ But this does not amount to a shift of policy at the outset of the Empire. The Julian law might simply have taken over this clause from Republican appeal laws: citizens may have held this legal guarantee, for what it was worth, also under the Republic. Besides, official policy under the Empire does not seem to have changed. Claudius, for example, swore not to torture any free men.* Even the torture of men suspected of or condemned for plotting against the life of the Emperor, a Julio- Claudian development, had its roots in the past: it was not far removed from some uses to which torture was put under the Republic.⁵

In 43 B.c. Q. Gallius, a praetor, was suspected of concealing a sword beneath his robe. He was tortured as if he had been a slave (servilem in modum).⁶ An ominous remark was made by a senator in the course of the trial of Clutorius Priscus under Tiberius.

¹               CTh 9. 16. 6 (= CJThe tale of the accidental torture of his old host from Rhodes was told by Suetonius as an illustration of the Emperor’s characteristic be­haviour. Suetonius went on to recount stories of Tiberius’ acti­vities on Capri in lurid detail.^[141] At least some of them are likely to be true.

Gaius’ sessions of torture were particularly well staged. Diners and revellers, says Suetonius, were treated to displays of inquisi­tion by torture.^[142] Seneca’s is the most detailed account of Gaius’ atrocities, but he reveals that Gaius did nothing to his victims which Sulla had not done to Marius.^[143] Gaius tortured conspirators or those he suspected of conspiracy. On one day, according to Seneca, he disposed of the consular Sextus Papinius, his quaestor, the son of his procurator, and other senators and knights, having them tortured, ‘not to extract information, but to satisfy an in­clination’.^[144]

Suetonius noted a streak of cruelty in Claudius. He too was a spectator to examinations by torture, as well as to the punishment of parricides.^[145] Claudius had actually begun his reign with an oath that he would not torture free men. But he soon showed that he considered would-be assassins and rebels as a race apart. The crushing of the revolt of Camillus Scribonianus in the second year of his reign was marked by the torture of men of high birth, both aliens and citizens.¹ Tacitus knew of the torture of the eques­trian Cn. Nonius, who was found with a sword when greeting Claudius. It was hoped that he would betray his ‘accomplices’.² The use of torture is also recorded after the discovery of the conspiracy of Messalina and Silius; and, in the reign of Nero, in the context of the Pisonian conspiracy.³

Thus, when treason was the charge, no man was safe from torture, whether as a punishment or as a means of securing the names of possible confederates. The theory was that whoever threatened the life of the Emperor had forfeited his rights and privileges: he could be treated as a slave.

When we come to the second century, we find little in the legis­lation of Emperors to suggest that the traditional situation, that only slaves were to be tortured, no longer obtained.⁴ With this in mind, we may turn again to the rescript of Pius with which we began.

Pius was considering the case of an ex-decurion, one who had been condemned and had lost his rank.⁵ The question at issue was whether torture should be applied to him in his new condition. In stating that torture was not applicable, Pius was implying, of course, that decurions were not subject to torture. But the re­script can hardly be said to have in itself excluded decurions from torture. It merely serves to show that, at a time when torture was making further inroads into the legal system, decurions were still considered beyond its reach. Hence the rescript does not possess the authority and importance that has been claimed for it. This may be one reason why Diocletian and Maximian cited Ulpian for the privileges of decurions.⁶

What is the significance of Ulpian’s statement? All that is known of it is that it covered roughly the same ground as Marcus’

¹               Dio 60. 15. 5-6: Dio blamed Messalina, Narcissus, and the other freedmen.

²               Tac. Ann. 11. 22. 1.

³               Dio 60. 31. 5 (Messalina and Silius); Tac. Ann. 15. 56; 16. 20 (Piso).

⁴               See p. 215.

⁵               Cf. Dig. 48. 18.9. 2: ‘De eo, qui in insulam deportatus est, quaestio habenda non est, ut divus Pius rescripsit. ’

^{size=2 color=black face="Times New Roman">6}               Also, Pius* rescript had nothing to do with poenae. The Emperors may have been looking for a broader statement. Cf. next note.

edict, but was concerned with decurions and their sons. The genre of such observations of jurists is by now familiar. They normally summarized the current situation. Sometimes, too, they included a resume of past rulings, if there were any. But if Ulpian on this occasion had quoted or referred to any authorities, one would have expected the Emperors to have cited those authorities. One may also infer from the fact that the Emperors turned to Ulpian that they had no knowledge from other sources of any Imperial pronouncements relating to decurions and their sons and their exemption from plebeian penalties and tortures.

It is conceivable that Marcus’ edict was the first Imperial constitution touching on torture which went beyond the con­ventional categories of slave and free;¹ yet it acknowledged the immunity from torture and plebeian penalties of a very small cate­gory of people, descendants of a few leading equestrian officials. The edict does not even contain an explicit reminder of the im­munity of the equestrian officials themselves. Nor are there grounds for positing a series of parallel constitutions covering those offi­cials, and other groups within the honestiores. A more likely sug­gestion seems to be that this constitution was issued to affirm, or re-affirm, privileges which had recently been challenged or overlooked, presumably in the law courts. The privileged status of the equestrian officials themselves (like that of senators) was not open to question. But the position of their descendants, who could not ipso facto be assumed to have belonged to any definite social order,² may well have needed clarification.

The constitutions of Pius and Marcus protect fringe groups whose standing was in doubt. Their wider significance is to show that torture and the harsher penalties were increasingly used in the administration of the law. Thus the rescript of Pius, for example, suggests that torture was commonly applied to condemned men of free birth who had retained their freedom.³ And if the torture

^x Of course, the edict is not solely about torture. Plebeiorum poenae_t indeed, comes first. For Marcus’ (and Verus’) other utterances on torture see Dig. 48. 18. 1. 3-4; 14; 27 (on fides)\ cf. 5; ibid. 17 praef. (slave against master).

³ See pp. 241-2.

³ Cf., of free witnesses, Dig. 48. 18. 15 praef. (p. 216 n. 2). Free Christians were habitually tortured. See espec. Pass. Jacobi et Marciani (K-K, no. 15,

of men who had lately been decurions could even have been con­sidered under Pius, it is not inconceivable that it could also have been countenanced for a grandson of a leading equestrian who had allegedly committed a capital crime. Marcus may have been recently reminded of this when he legislated.

3 (c) 'Custodia⁹

The word custodia has an extensive application. It covers the various ways in which a defendant might be held in custody before the trial or the execution of sentence. It stands for the imprison­ment that is an act of coerdtio by a magistrate. It refers to methods of punishment after sentence has been passed.

Lentulus and his fellow plotters in the Catilinarian conspiracy were placed in the care of magistrates and senators while waiting for the Senate’s verdict. In the sources their situation is described as libera custodia, free custody.¹ This was a mild form of detention, one reserved (in Imperial times, at any rate) for men of high status. For Ulpian, in his de officio proconsulis, says that the governor chooses whether an accused man should be put in prison or en­trusted to armed guards or guarantors ‘or even to himself’; and he goes on to stress that the governor, in making his decision, should consider the rank and wealth of the accused as well as the gravity of the crime committed: ‘Concerning the custody of accused men, the proconsul is accustomed to decide whether in each case the person should be put in prison, or handed over to a soldier, or entrusted to guarantors, or even to himself. He usually makes this decision in accordance with the kind of crime which is charged, or the standing of the person accused, or his great wealth, or his innocence, or his dignity.’² Pius in a rescript had laid down that if a man was prepared to provide guarantors, then

p. 67; Valerian) 5, 3 ff.; cf. Acta Maximi (K-K, no. 12, p. 60; Decius) 2. iff.; Acta Kononis (K-K, no. 14, p. 64; Valerian (?)) 5. 5; etc.

¹               lang=EN-US>Sall. Cat, 47. 3: ‘senatus decemit, uti abdicato magistratu Lentulus item- que ceteri in liberis custodiis habeantur.’ See also Acts 28: 30 (St. Paul).

²               Dig, 48. 3. 1: ‘de custodia reorum proconsul aestimare solet, utrum in carcerem recipienda sit persona an militi tradenda vel fideiussoribus com­mittenda vel etiam sibi, hoc autem vel pro criminis quod obicitur qualitate vel propter honorem aut propter amplissimas facultates vel pro innocentia personae vel pro dignitate eius qui accusatur facere solet.’

8251947                                                                     L he should not be thrown into vincula (prison): ‘The Divine Pius replied in Greek to a letter of the people of Antioch, that the man who was prepared to give guarantors should not be thrown into prison, unless it be agreed that his crime was so grave that he should not be entrusted either to guarantors or soldiers, but should be punished with imprisonment itself before death [or the proper penalty]’.¹ This was not out of key with Ulpian’s ad­vice, because normally only men of means, men with amplissimae facilitates, would be able to fall back on guarantors. But Pius would not grant the privilege of guarantors in the case of a very serious crime. What did this mean in practice? Perhaps the Em­peror had in mind capital crimes. Apparently decurions arrested for capital crimes were held in prison.²

So much for custodia in the sense of detention prior to trial, sentence, or punishment.³ Libera custodia was also in practice a possible penalty. Julius Caesar proposed for Lentulus and the rest that their property should be confiscated, and that they should be held in Italian towns for the rest of their lives.⁴ He urged this plan as an alternative to the execution which D. lunius Silanus had advised. Silanus, however, changed his position after Caesar’s powerful speech, and asserted that by the ultimate penalty («αχάτην δίκην) which he had pressed for, he had meant the ultimate penalty for a Roman senator («αχάτην δίκην άνδ/>1 /ϊουλ«υτη ’Ρωμαίων),

» dig. 48. 3. 3^: ‘divus Pius ad epistulam Antiochensium Graece rescripsit non esse in vincula coiciendum eum, qui fideiussores dare paratus est, nisi si tarn grave scelus admisisse eum constet, ut neque fideiussoribus neque militibus committi debeat, verum hanc ipsam carceris poenam ante supplicium susti- nere.*

^x See, for example, Dig. 48. 19. 27. 1; 48. 22. 6. 1.

J See also Dig. 48. 3. 5; 48. 4. 4; PS 5. 26. 2 (confessi); Dig. 47. to. 13. 2; PS 5. 26. 2 (contumaces, etc.). Imprisonment before execution for condemned persons during the Republic: Livy 29. 19. 5; 22. 7; 34· 44· 6; per. 61; Cic. in Vat. 11.26; Sall. Cat. 55 (cf. Plut. Cic. 20. 3)» etc. (all Romans); Plut. Mar. 12; Livy, per. 67; Dio 40. 41; Mommsen, op. cit. 930 n. 1 (distinguished foreigners). For the Empire see Suet. Tib. 61. 4 (in general); Tac. Ann. 3. 51.1 (ClutoriusPriscus); ibid. 4. 70. 5-6 (Titius Sabinus); ibid. 5. 9. 2 (children of Sejanus); ibid. 6. 39. 1 (Paconianus); ibid. 6. 40· 1 (Vibulenus Agrippa); Suet. Tib. 75. 2; cf. Dio 59. 6. 2 (prisoners on death of Tiberius). Dio 59. 18. 3 (victims of Gaius); Tac. Ann. 11. 2. 5 (Poppaea Sabina: voluntary death); Agric. 45 (Helvidius Priscus); Pliny, Ep. 2.11.8. Imprisonment before exile: Dig. 28. 3. 6. 7; 48. 19. 27. 2; 48. 22. 6. 1; 49. 4· i praef.

« Sall. Cat. 51. 43; cf. Plut. Cic. 21. 1.

which, he said, was imprisonment.¹ In Tiberius’ reign lunius Gallio was brought back from exile and kept in Rome in the houses of magistrates: ‘custoditurque domibus magistratuum.’² Over a century later, one Aelius Priscus, who was clearly insane, murdered his mother. Marcus and Commodus judged him to be of sufficient locus and or do to be guarded privately: ‘... ut a suis vel etiam in propria villa custodiatur’.³ Finally, the consular lulius Paulinus, who annoyed Septimius Severus with his free talk and frivolous gibing, was put in άδίσμω φυλακή.⁴

¹               Ibid. 2i. 3; cf. Sall. Cat. $0. 4. Cicero {in Cat. 4. 4. 7) sums up Caesar’s case for imprisonment as an alternative to death with these words: ‘vincula vero, et ea sempiterna, certe ad singularem poenam nefarii sceleris inventa sunt? See Greenidge, Legal Procedure of Cicero's Time (1901), 333, 514^., for the use of imprisonment as a preventive penalty. Yet the Romans never officially accepted imprisonment as a legal penalty, whether for life or for a short term. See n. 6 below.

²Tac. Ann, 6. 3. 3; Dio 58. 3. 5 (Gallus, cm φνλακτ) ά&σμω).

> Dig, i. 18. 14.                                                                4 Dio 77. 11. ia.

⁵               Mommsen, op. cit. 48-9. See Gellius 13. 12, 6 (Varro). For the misuse of imprisonment as coercitio see G. Chalon, L'£dit de Tiberius Julius Alexander (1964), 27 ff. (text), 11. i5ff.

⁶               Dig. 48. 19. 8. 9: ‘sed id eos facere non oportet, nam huiusmodi poenae interdictae sunt, career enim ad continendos homines, non ad puniendos haberi debet? Hadrian regarded imprisonment for life as illegal. See Dig, 48. 19. 35. Caracalla thought it hardly suitable even for slaves. See CJ 9. 47. 6 (a.d. 214); cf. Dig, 48. 19. 8. 13. An example from the reign of Tiberius: Suet. Tib. 37. 3.

⁷               PS 5. 21. I; 5. 17. 2 (relegatio); ibid, (exilium); 5. 21. 2 (deportatio); 5. 17. 2 (opus); Dig, 11. 5. 1.4 (fine); cf. PS 5. 18. 1; Cic. de leg, 3. 3. 6 (‘multa vinclis verberibus ve’)· imprisonment as a penalty, could be said to have shown a fuller understanding of the direction in which the penal system was evolving. Cognitio judges had devised a system of secondary penalties for low-status criminals which deprived them of their freedom of movement, temporarily or permanently. These penal­ties, involving forced labour, were clearly regarded as forms of custody.¹ It is curious that the most effective form of custody, incarceration, was denied official recognition?

How were prisoners treated? Callistratus quoted mandata of one Emperor to a governor, which stated: ‘You will hold them bound [vinctos].’^[146] But were bonds normal? One problem is the ambiguity of words and phrases. Ulpian stated that to be in carcere clausus is not the same as to be vinctus or in vinculis ‘nisi corpori eius vincula sint adhibita’.^[147] This is hard to reconcile with what Callistratus has to say on the subject of vincula·.

vinculorum autem appellatio latius accipitur: nam etiam inclusos velut lautumiis vinctorum numero haberi placet, quia nihil intersit, parietibus an compedibus teneatur.^[148]

This is a reminder that conditions in some prisons were harsher than in others. Apollonius of Tyana was placed by Domitian’s praetorian prefect in 'the free prison’ (τό έλίυθεριον δεσμωτηριον).¹ He was one of about fifty inmates, all of whom feared for their lives as they awaited trial on a variety of charges.² The Emperor took a particular interest in Apollonius, and he was offered any­thing he desired? The atmosphere changed after a private con­versation between them. Apollonius was thrown into a different prison, where he was bound.⁴ After two days he was permitted to return to the first prison for the five days that remained before his trial.

If an acknowledged tyrant like Domitian could refrain from chaining men on capital charges, it is not impossible that this was the norm, at any rate for men of wealth or position or fame. All the persons mentioned by Philostratus in the story are of this type? The sources do not refer to any legal guarantee against chaining and other harsh treatment. At the most it might have been thought adversus bonos mores to chain honestiores.

But imprisonment itself, with or without chains, was clearly something to be avoided if possible.⁶ We have seen that it was it makes no difference whether men are confined by walls or by chains.’ Momm­sen (op. cit. 302 n. 3) read lautumiae as a generic term for ^cdas leichtere Gefäng­nis’, but this is unconvincing. For lautumiae see also Dig» n. 5. 1. 4; Sen. Contr. 7. i. 22. Mommsen (op. cit. 960 n. 1) held that career and vincula were synonymous. This was refuted by Brasiello (op. cit. 407 n. 62). Vincula and custodia are not synonymous either (see Dig. 4. 6. 10 and 50. 16. 48; ibid. 224). Nor are custodia and career (see Dig. 47. 2. 52. 12).

¹               Philostr. Ap. 7. 22 and 40.

²               Ibid. 7. 23: a Κίλιξ, for wealth, on the grounds that he acquired it μη επ’ άγαθω τη: τυραννίδα:; ibid. 24: the accused did not mention that Domitian was a son of Athene in public prayers at a public sacrifice in Tarentum; ibid. 25: the owner of property in Acarnania who had planted an island with vines and trees. Evidently the property was coveted by the Emperor. The charge was trumped up—he was alleged to have tried to escape from *his crimes’; ibid. 42: an Arcadian from Messene of conspicuous beauty, in trouble for refusing to submit to Domitian.

²              Ibid. 28: παν, εΓ τι βουλοιο; cf. Jos. AJ. 18. 202-4 (Agrippa and Antonia).

⁴               Ibid. 36; cf. 34. δεδε'σ0αι, in 23 fin. (cf. δεδε'σ0αι in 26, ed. Loeb, p. 222), is misleading, as it simply refers to imprisonment. Contrast Acts 21: 33; 22: 29.

⁵ See n. 2 above.

⁶               lang=EN-US>Fourth-century sources reveal the horrors of prisons at that time. See, e.g., Libanius, Or. 45; CTh 9. 3. 1, a.d. 320; cf. ibid. 7, a.d. 409. It is impossible to tell how far conditions deteriorated over three centuries. See Mommsen, op. cit. 303 ff.

generally possible for decurions and honestiores to secure a less rigorous form of custodia, unless the crime deserved a capital penalty. We possess no statement of an Emperor on the question earlier than that of Pius—which cannot be regarded as a major breakthrough, for it was little more than an instruction to governors to grant libera custodia more freely. The privileged group was a broad one—it included anyone ‘who was ready to provide guaran­tors’—and it was left to Marcus and Commodus to introduce direct reference to the status of defendants..

Conclusion

In the second and third centuries there was a definite trend towards harsher penalties.¹ Most of the penalties that came to be regularly applied to criminals originated as irregular sanctions, with no basis in the criminal law. Formerly felt to be suitable almost exclusively for slaves, by the Antonine and Severan periods they are found in general use against humiliores. Indeed, by the late third and early fourth centuries, they were overtaking even the provincial aristocracy. In the preceding two centuries it was not their position and the position of honestiores in general which improved, but that of the humiliores which worsened. That is not of course to imply that honestiores and humiliores were ever on an equal footing in the sight of the law. The Antonine and Severan Emperors were not the first to employ a differential penalty system in favour of the higher orders: the character of the statements made by classical lawyers, and Emperors, makes this conclusion in­escapable. The possibility remains that, although the system was inherited rather than created by the Antonines and Severans, they, and particularly the Severans, did give it a different basis in law. This matter cannot be judged until the various stages in the evolution of the dual-penalty system have been outlined.

’ This development is analysed in greater detail in Natural Law Forum, 13 (1968), 141-62.