A Comparison of Ancient Roman Justice Systems and Canadian Indigenous Justice Systems: Approaches to Crime and Punishment By Emma March A thesis submitted to the Department of Classics in conformity with the requirements for the Degree of Master of Arts Queen’s University Kingston, Ontario, Canada Final (QSpace) submission August, 2020 Copyright ã March, 2020 Abstract Canadian law is legally pluralistic and combines common law, civil law, and Indigenous legal traditions. Roman law has contributed largely to both the Canadian common law and civil law traditions while Indigenous law has developed from its own belief system and history. Conflict has arisen within Canada’s criminal system with respect to Indigenous offenders due to the retributive nature and positivistic approaches of both the common law and civil law systems in the face of the restorative methodology found in Indigenous approaches to crime. The retributive approach is largely reflective of the legal ideology developed by the Romans and their methods for punishing crime. However, Rome had many different periods of law and the history of Roman law before the classical period has largely been ignored in legal scholarship. By contrasting the two systems, I argue that criticism for Indigenous law as being largely custom is misplaced and that Indigenous law derives force from similar sources of law found in the Roman system. Moreover, I argue that the overincarceration and representation of Indigenous individuals within the Canadian criminal system is partially the result of differences in core values resulting from separate histories and customs. The Canadian criminal system may benefit from adopting smaller organizational structures in order to provide more personal services as is seen in Indigenous systems. Furthermore, the Canadian criminal law system needs to incorporate further aspects of Indigenous law into its structure which represent traditional Indigenous values in order to encourage reconciliation and help heal Canada’s Indigenous peoples. However, this presents difficulties given the sizeable population of modern cities and the needs of administering justice over a large population. ii Acknowledgments I would first like to thank my thesis supervisors Dr. Olson and Dr. Colivicchi. Dr. Olson was always available to provide necessary guidance and feedback. Dr. Colivicchi has not only been a source of valuable insight in this process, but throughout my undergraduate and graduate careers. I would also like to acknowledge the help and work of the other members of my examining committee: Dr. St-Amand and Dr. Reeves. Thank you all. In addition, I would like to recognize all of the professors, administrators, and friends in the Department of Classics at Queen’s. Through their dedication and passion, they create an inspiring environment for learning. Many, many thanks to mom, dad, Will, and nana for their continuous assistance and unfailing encouragement. I would not have gotten this far without them. And thank you Paul for your ceaseless patience, optimism, love, and support. iii Table of Contents Title page……………………………………………………………………………………………………i Abstract……………………………………………………………………………………………………..ii Acknowledgments…………………………………………………………………………………………iii Table of Contents…………………………………………………………………………………………..iv List of Abbreviations……………………………………………...………………………………...……..vi Introduction…………………………………………………………………………………………………1 Chapter 1 An Overview of the Roman Legal System……………………………………………………..14 1.1 A Brief History of Roman Law………………………………………………………………14 1.2 Roman Legal Sources………………………………………………………………………...30 Chapter 2 Roman Criminal Law and Punishment………………………………………………………...49 2.1 The Roman Republic…………………………………………………………………………53 2.2 Permanent Tribunals………………………………………………………………………….59 2.3 Reforms under Augustus and the Principate……………………………………………….....71 2.4 The Late Empire……………………………………………………………………………...85 Chapter 3 Law and Legal Traditions of Canada’s Indigenous Peoples…………………………………...93 3.1 Sources of Indigenous Legal Traditions……………………………………………………...98 3.2 Indigenous Governance……………………………………………………………………..120 Chapter 4 Indigenous Criminal Law…………………………………………………………………..…130 4.1 Indigenous Traditional Approaches to Crime……………………………………………….130 4.2 Traditional Justice by Geographic Location………………………………………………...137 4.2.1 Miq’mak……………………………………………………………………….….138 4.2.2 Naskapi………………………………………………………………………..….142 4.2.3 Anishinaabe……………………………………………………………………….149 4.2.4 Haudenosaunee…………………………………………………………………...154 4.2.5 Blackfoot…………………………………………………………………………163 4.3 Modern Indigenous Criminal Law…………………………………………………………..168 Chapter 5 A Comparison of Roman Law and Canadian Indigenous Law with a Focus on Crime and Punishment…………………………………………………………………………………..…..180 5.1 Values……………………………………………………………………………….………180 iv 5.2 Sources of Law……………………………………………………………………….……..186 5.3 Legal Academics……………………………………………………………………….……190 5.4 Law and Punishment……………………………………………………………………...…193 5.5 Retributive and Restorative Justice………………………………………………………….196 5.6 Final Thoughts on the Comparison...…………………………………………………….….202 Conclusion……………………………………………………………………………………………….205 Further Research……………………………………………………………………….………..215 Bibliography…………………………………………………………………………………….………..216 v List of Abbreviations Amb. Ep. – Ambrose Epistulae Amm. Marc. – Ammianus Marcellinus Rerum gestarum libri Aristot. Pol. – Aristotle Politeia August. Ep. – Augustine Epistulae C. Just. – Justinian Codex C. Th. – Theodosian Codex Cic. Att. – Cicero Epistulae ad Atticum Cic. Fam. – Cicero Epistulae ad familiares Cic. Inv. – Cicero De inventione rhetorica Cic. Nat. Deor. – Cicero De natura deorum Cic. De. Off. – Cicero De officiis Cic. De Orat. – Cicero De Oratore Cic. Phil. – Cicero Orationes Philippicae Cic. Rep. – Cicero De Re Publica Co. Lit. – Sir Edward Coke Institutes and Commentary on Littleton Collatio – Mosaicarum et Romanarum Legum Collatio (in Fontes Iuris Romani Anteiustiniani vol. 2) Cornutus Persius – Cornutus Persius Theologia D. – Justinian Digest Dio – Cassius Dio Historia romana Diod. – Diodorus Siculus Bibliotheke Dion. Hal. – Dionysius Halicarnassus Antiquitates romanae Ex. – Exodus FIRA – Fontes Iuris Romani Anteiustiniani edited by S. Riccobono, J. Baviera, C. Ferrini, J. Furlani, and V. Arangio-Ruiz, 3 vols., 2nd edn. (Florence, 1968) vi Gaius – Gaius Institutiones Instit. – Justinian Institutiones Livy – Livy Ab urbe condita Mart. Pionii – Martyrium Pionii Paul. Sent. – Iulius Paulus Sententiae Plin. Ep. – Pliny the Younger Epistulae Plin. NH – Pliny the Elder Naturalis Historia Plut. Cic. – Plutarch Vitae Parallelae Cicero Plut. Sull. – Plutarch Vitae Parallelae Sulla Polyb. – Polybius Histories Ps. Quint. Dec. – Pseudo Quintilian Declamationes minores Res Gestae – Augustus Res Gestae Roman Statutes – Roman Statutes, edited by M. H. Crawford 2. vols. (London, 1996) Sall. Hist. – Sallust Historiae Sall. Jug. – Sallust Bellum Jugurthinum Servius on Verg. Ecl. – Commentary by Servius in the Scholia Danielis on Virgil’s Eclogues SHA Severus Alexander – Scriptores Historiae Augustae Severus Alexander Stat. Silv. – Statius Silvae Suet. Aug. – Suetonius Divus Augustus Suet. Calig. – Suetonius Gaius Caligula Suet. Galb. – Suetonius Galba Suet. Iul. – Suetonius Divus Iulius Tac. Ann. – Tacitus Annales Tac. Dial. – Tacitus Dialogus de oratoribus vii Introduction Roman law and Canadian Indigenous law are perhaps an odd comparison. The Roman legal system functioned to regulate an empire which spanned the Mediterranean Sea (at its height) two thousand years ago. We have documentation for it which survives to us today in various forms. It developed and was applied for a span of approximately twelve hundred years. In contrast, Canadian Indigenous law, although also steeped in tradition, can be dated more recently and still develops into modernity. Its end date is yet to be determined. It varied within the communities spanning North America, and less information about this legal system is formally documented; the existing knowledge of such is in danger of being lost. However, both systems act as two sides of parallel coins. Roman law was imposed on annexed provinces to create legal pluralism and developed to allow the Roman state the ability to control such a large and varied population and territory, while Canadian Indigenous law was the existing legal tradition of an indigenous peoples which was altered and repressed by the British settler-colonial state. Many similarities can be drawn between the Roman Empire and the British Empire. Lord Cromer, during the early twentieth century, stated that the British command of an empire was “the main title which makes us great”.1 Imperialists at this time were inclined to compare the British empire with the Roman, and to pursue “in the history of imperial Rome for any facts or commentaries gleaned from ancient times which might be of service to the modern empire of which we are so justly proud”.2 Both states believed it to be their purpose to rule in the interests of their subjects, and both extended their own forms of law and civilization to the world.3 However, the two empires also had their differences. Rome arguably created a genuine loyalty and unity among some of their provinces and ruled for a period of six hundred years.4 1 Brunt, Reflections on British and Roman Imperialism, 267. 2 Brunt, Reflections on British and Roman Imperialism, 267. 3 Brunt, Reflections on British and Roman Imperialism, 267. 4 Brunt, Reflections on British and Roman Imperialism, 267. Britain, in contrast,