Communal, Legal and Interpersonal Violence
Self-help was a cardinal principle of Roman criminal law. In the absence of an extensive state apparatus for policing and law enforcement, it was up to victims and their relatives to seek recompense for a loss, whether of property or of life.
Similarly, entire communities had to organise their own responses to security threats like bandits or pirates. The principle was expressed in law as vim vi repellere licet (‘it is allowed to repel violence with violence'). The principle extended to on-the-spot revenge.[1090] As a result, what was considered legitimate and illegitimate in the application of violence by the populace was much looser than we would accept today. In the novel The Golden Ass by Apuleius (c. 120 ce) the hero Lucius finds himself transformed by a sorceress into an ass. In this guise he endures many hardships, including a period attached to a bandit gang holed up in cave. Banditry was a persistent and universal problem in the ancient world (and still is in the less developed corners of the globe), particularly in the trackless interstices between cities and towns. The bandits in The Golden Ass launch an assault on a rich man's house in town and encounter fierce resistance from those within. Later, the townspeople organise a posse to take on the bandit gang head-on. When they catch up with them, the townsfolk butcher some of the brigands on the spot, apprehend others and then summarily execute them by hurling them into a gorge.[1091] In our world, this would be vigilantism of the worst sort, but on the principle of vim vi repellere licet it is no more than the townsfolk administering rough justice to the criminals threatening them.Initially, laws concerning violent acts were determined first and foremost to establish proportionality in the private response to an assault or murder.
Laws in our oldest body of Roman law, the Twelve Tables (450/449 bce), stipulate fines or retaliation in kind for most forms of injury. They allow a nocturnal thief to be killed on the spot by a householder, but not a daytime burglar (e.g. Twelve Tables 8.2, 12-13) - presumably because during the day non-lethal alternatives were at hand. In essence, these statutes regulate the self-help doctrine. The rise of public disorder and violence in the disintegrating Late Republic (c. 133-31 bce) is what sparked the first official lex de vi (‘law concerning violence’) in 78 bce, but principled restrictions on the private deployment of violence were never fully worked out in the manner of modern criminal law. Conflict between citizens was seen mostly as something the parties should sort out between themselves, with the law available as an avenue to reconciliation.When the state did get its hands on criminals, violence was the natural punitive medium. Pre-modern societies, lacking the necessary state apparatus to impose custodial punishment effectively, usually extracted retribution from the person of the convict. Capital and corporal punishment were habitual. It is not until quite recently, in fact, that protracted imprisonment has become normative in the West, and in many societies the pre-modern model is still implemented.[1092] The Roman world was no exception, but the Roman penchant for systematisation and legal specificity generated a graduated hierarchy of punishments that were expressly linked to the rank of the offender. The harsh, public and aggravated sentences were reserved for slaves, enemies of the state and the low-born free population. Thus whipping and crucifixion were the quintessential slave punishments, while fugitive slaves, bandits or low-born common criminals (denoted from the second century ce onwards as humiliores, ‘the more lowly ones') could be sent to the arena for exposure to wild beasts, or condemned to gladiator schools or the mines.
The upper classes (dubbed honestiores, ‘the more honourable ones') were spared these humiliations and would be fined for having committed the same offences, or given the option of voluntary exile - often in one of their villas outside Rome - or, perhaps, an honourable suicide. The latter was especially true of those suspected or found guilty of treason against emperors - ‘the final necessity', as Tacitus calls the imperial order to end it all (e.g. Tac. Hist. 1.3.1, 1.72.3). ‘Our ancestors in every case punished slaves more harshly than freemen, the notorious more severely than the respectable,' wrote one Roman jurist (Dig. 48.19.28.16). The indignation of our mostly upper-class sources is reserved for cases where people of status were subjected to inappropriate punishments by tyrannical authorities rather than for the brutality of the punishments themselves.25 Instructive and remarkable for their illustration of these circumstances are the ancient schoolbooks (colloquia) preserved in the manuscript tradition. Composed for and by children aged 7 to 11 or slightly older, the colloquia sought to teach basic vocabulary by sketching daily routines: getting up, getting dressed, going to school, moving about in public and so on, all the while using key phrases and terms appropriate to each context. At one point, the child goes into the forum with his father, where a trial is in progress:The defendant brought into court is a bandit. He is questioned as he deserves; he is tortured, the interrogator beats him, his chest is pummelled, he's strung up, stretched, lashed with rods, thrashed thoroughly, he goes
University Press, 1995); P. C. Spierenburg, The Spectacle of Suffering (Cambridge: Cambridge University Press, 1984). In ancient Rome people were usually held in prison only until their appointment with physical punishment came due. For a description of dreadful ancient prison conditions see Diod. Sic. 31.9. It has recently been argued that forced monastic confinement approached custodial punishment in the Late Antique era; see J.
Hillner, Prison, Punishment, and Penance in Late Antiquity (Oxford: Oxford University Press, 2015).25 See e.g. Suet. Aug. 27.4; Tib. 60; Cal. 32.1; Claud. 34 (and many parts of Cicero's Verrines). For an overview of the system of differential punishment, see P. Garnsey, Social Status and Legal Privilege in the Roman Empire (Oxford: Oxford University Press, 1970); R. MacMullen, ‘Judicial Savagery in the Roman Empire', Chiron 16 (1986), 147-66. through the whole series of torments, and still he denies his guilt. He must be punished: the sentence is death, and he's led away to the sword.2
It is a horrific scene; one witnessed by a young child. The next case involves a rich man, who talks his way to acquittal. The divergent experiences of the humilior and the honestior at the hands of the law could hardly be clearer.
Interestingly, much of the text of the schoolbooks comprises orders barked at slaves: ‘Dress me! Get my sandals! Bring water for my hands!' Ancient Rome is one the more thoroughgoing slaving societies known to recorded history. Slaves were ubiquitous, found at all levels of society, from the vast work gangs toiling in the fields of the landed gentry to the trusted servant who shared much of the lot of the lowly freeborn.[1093] [1094] Cicero defines utter penury as the hideous condition of not owning even a single slave (Cic. Rosc. Am. 145). Romans therefore encountered slaves at all levels of society, since they were a constant feature of the social environment. In addition, Roman slavery was a social condition with no ethnic distinction between free and slave; indeed, slaves were often indistinguishable in appearance from the freeborn. Favoured or skilled slaves could have materially more comfortable lives than the lowly Roman freeborn. Yet, despite these social realities, legally slaves were little more than the living dead, the ‘speaking class of tool', as one Roman author puts it.[1095] Slaves therefore inhabited a parallel universe to the free, where they were deemed legally non-existent and of no worth beyond that of property.
Violence, both physical and psychological, is inherent to the institution of slavery. Its direct application and the threat of its application permeate all levels of the slave experience, from initial capture and transport, to the degradations of the slave market, to the casual violence meted out to slaves as they went about their business. In ancient Rome, transgressions were punishable by flogging or worse. Cicero characterised slavery as coercion and the breaking of will (Rep. 3.37), a process symbolised by the whip, the hook and the cross (Rab. Perd. 16). The lot of the slave, even the household favourite, was entirely contingent on the whim of the owner. Privileges could be revoked at any time, and violence applied on the spot. Plutarch (Mor. 462A) comments: ‘we see that newly-bought slaves do not ask whether their master is superstitious or jealous - but whether he is quick to anger'. The surviving sources of all stripes are rife with casual comments and asides that involve doing violence to slaves. In the comedies of Plautus (c. 200 bce), the slave characters live under the constant threat of a beating or a flogging. In the Satires ofJuvenal (6.475-93), composed in the early second century ce, the sexually frustrated woman vents her anger on her slaves with the whip and the rod, and keeps an executioner on retainer. Hired torturers were brought in to conduct ‘examinations' of slaves, if the owner suspected them of criminality (Cic. Cluent. 176-7). Alternatively, the owner could do the torturing himself: one of Caesar's assassins was murdered by his own slaves, ‘one of whom he was mutilating as a punishment', the author casually notes (App. B. Civ. 3.98). Servants at dinner parties were cuffed, beaten with rods or whipped for infractions as frivolous as a sneeze or a hiccup.[1096]
The ubiquity of slaves in Roman society, the violence routinely deployed to cow and control them and the exposure of Romans to their maltreatment for the duration of their natural lives from infancy onwards are all circumstances that can only have had a profound and formative effect on Roman attitudes toward violence and its applications.
The most obvious manifestation of this was the meting out of violence to those lower down the Roman social hierarchy than the perpetrator. We have seen how just such an attitude was manifest in Roman law in the differential treatment of offenders based on their social class. While the evidence is insufficient to quantify levels of quotidian interpersonal violence in ancient Rome in the manner we can for modern societies, it is clear from a variety of vignettes and anecdotes that violence trickled down from top to bottom. Patrons had the legal right to physically punish their clients, at least to a moderate degree (Dig. 47.10.7.2). The dominance of the father of the household (paterfamilias) over his charges - that is, all those living under his roof - was expressed as his legal right to beat, sell or kill them. That this ‘fatherly power' (patria potestas) was very rarely employed in real life is less important than its expression in terms of the violent options that were legally open to its holder. Apuleius (Met. 9.35-8) charts the course of a dispute between a local squire (the powerful party) and a small farmer (the less powerful one). In attempting to drive the small farmer from his land, the squire resorts immediately to violence: his men attack the farmer, his cottage, his livestock. Matters escalate until five people lose their lives. Once more, the violence is seen to flow from the top down. Indeed, the normative nature of trickle-down violence underlay the forensic rhetorical strategy of plaintiffs claiming to be powerless victims of powerful perpetrators. We see this claim invoked repeatedly in papyri preserving lawsuits and petitions to authorities brought by people against wrongdoers. The claim was deployed even when the facts suggested otherwise, so that an ex-magistrate, and so a person of standing in his community, claims powerlessness in the face of violence done to him by mere fishermen.[1097]The claim of powerlessness carried weight precisely because these are cases brought to the attention of the authorities, and so it was not obvious who was at fault. By posing as powerless victims, plaintiffs cast themselves in the role of those who normally suffered violence in Roman society but claimed that in this particular instance it was unjustified. The opposite claim - that the plaintiff was a powerful victim of a powerless perpetrator - was a non-starter, since violence inflicted from the bottom up was self- evidently illegitimate and there would have been no ambivalence about blame requiring a petition or a legal hearing in the first place. That said, it might appear at first glance that claiming the perpetrator was less powerful than the plaintiff could be a winning rhetorical strategy, since the violence would then be, by definition, illegitimate and illegal. But this was clearly not the case, since we never see that stance invoked by plaintiffs. There are several reasons for this. In the first place, claiming a higher status than a lowly perpetrator in a public petition would entail a loss of dignitas, one's public standing. It would require a public admission that a person of lower rank had inflicted harm on you and that you were not up to the task of retaliating privately, as you were legally entitled to do on the principle vim vi repellere licet. You would therefore be claiming to be a powerful person who had been subjected to the indignities of the powerless and now needed assistance from the state to gain redress. Such a claim would make the claimant look like a weakling, hence the loss of dignitas. The claim of relative powerlessness, in contrast, recognised the habitual dynamic of how violence worked in Roman society - and so preserved the dignitas of the powerful plaintiff - but left the matter of legitimacy for the court to decide. Another advantage of the rhetorical claim of powerlessness was that it imputed to the perpetrator an overbearing arrogance (superbia or hubris), a vice the Romans traditionally found offensive. These cases of private litigation, therefore, reveal much about Roman attitudes toward violence in their everyday interactions and they make clear, as Jill Harries notes, that ‘violence was a crime of the powerful, inflicted on the powerless’.[1098]
Given all this, it is hardly surprising that the entire caste of Roman legal and social thought, and the sensibilities of the elites, were appalled when the violence flowed from the bottom up or when the legal privileges that accrued to the dignitas of a victim were not properly respected. The most egregious infraction, of course, was when slaves killed their owners. In any slaving society, extra safeguards have to be put in place to prevent this from happening, and in ancient Rome, where slaves were ubiquitous, this was all the more necessary. The Roman response was straightforward: if a slave killed his or her owner, all the slaves in the household would be executed. That way, it was hoped, potentially lethal plots against owners would be betrayed by the other slaves of the house, if for no other reason than selfpreservation. This ancient law, interestingly, was challenged by the public in 61 ce, when the prominent senator L. Pedanius Secundus was killed by one of his slaves and over 400 of his household servants were slated for execution as a result. The Roman plebs, thinking it unjust that so many of all ages should pay for the crime of one, took to the streets in protest, but the senators insisted on carrying out the sentence anyway (Tac. Ann. 14.42-5). The plebs objected in this instance to the number of innocents caught in the law’s net, and not to the law itself. It was not that violence would be done to slaves, but that the violence was in the popular mind illegitimate.
In general, if people of status were subjected to the sorts of aggravated and humiliating punishments reserved for the underclass, outrage ensued. A sustained expression of such indignation is offered in Cicero’s prosecutorial speeches against the former governor of Sicily, C. Verres, delivered in 70 bce. Cicero repeatedly seeks to elicit the jury’s anger by describing how Verres tortured and killed Roman citizens ‘in the manner of slaves' or ‘in the manner of public enemies', or how he had a leading citizen of a Sicilian city scourged in the forum of his own town. In contrast, a slave shepherd crucified for carrying a spear warrants no comment.[1099] It is characteristic of tyrants to ignore rank in giving vent to their cruelty, and the cruelty itself resided less in the acts of violence than to whom the violence was administered (e.g. Suet. Cal. 27-8).