Notre Dame Law School NDLScholarship Natural Law Forum 1-1-1968 Why Penalties Become Harsher: The Roman Case, Late Republic to Fourth Centruy Empire;Note Peter Garnsey Follow this and additional works at: http://scholarship.law.nd.edu/nd_naturallaw_forum Part of the Law Commons Recommended Citation Garnsey, Peter, "Why Penalties Become Harsher: The Roman Case, Late Republic to Fourth Centruy Empire;Note" (1968). Natural Law Forum. Paper 143. http://scholarship.law.nd.edu/nd_naturallaw_forum/143 This Note is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Natural Law Forum by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. WHY PENALTIES BECOME HARSHER: THE ROMAN CASE, LATE REPUBLIC TO FOURTH CENTURY EMPIRE Social or legal thinkers who have sought to explain historical changes in patterns of punishment have commonly illustrated their theories with reference to Rome. The case of Rome, where, according to the accepted view, a lenient penal system in the late Republic gave way to a progressively harsher system under the Empire, has been cited in particular as evidence that political causes underlie fluctuations in penalties. It has been suggested that the upward trend in penalties in Rome can be explained in terms of the substitution of monarchy for aristocracy, and the increasingly absolutist tendencies of the monarchy. In the following pages, this and other theories of penal change are considered, in the light of developments in Rome over a period of about five hundred years, roughly from the middle of the second century B.c. to the close of the fourth century A.D. The theory that changes in penal law are closely related to political develop- ments was first put forward by Montesquieu.1 He regarded the view as vindi- cated by the example of Rome: ". I believe that punishments are connected with the nature of governments when I see this great people changing their civil laws in this respect [that is, in respect of punishments] in accordance with altera- tions in their form of government."' 2 Montesquieu found that penalties were harsh in Rome when the government was tyrannical in nature; for example, under the early kings, at the time when the Twelve Tables were in operation in the early Republic, and in certain periods under the Empire when individual Emperors reigned more -like military despots than constitutional monarchs. Under monarchies, the risk of arbitrariness was reduced and concessions were made to rank. Thus, he argued, the rule of the more moderate Emperors was marked by differential treatment of higher and lower orders - the former were punished leniently, the latter severely. Only under the Republic (after the penal sanctions of the Twelve Tables had been set aside) were arbitrariness and in- equality absent and leniency practiced towards all citizens in the administration of the law.3 Montesquieu did not discuss in detail the reasons for the characteristic harsh- ness of the penal codes of despotic regimes, stating only that severe penalties were inevitable when despots ruled by inspiring terror in their subjects. Black- 1 MONTESQUIEU, DE L'ESPRIT DES LOtS bk. VI passim (1748). At any rate, Montesquieu claimed originality, in a gloss to the beginning of ch. 15: "J'ay du plaisir quand je trouve l'occasion de faire voir le rapport que lesloix civiles ont avec les loix politiques, chose que je ne snache pas que personne ait fait avant moy." 2 "Je me trouve fort dans mes maximes, lorsque j'ai pour moi les Romains; et je croix que les peines tiennent A la nature du gouvernement, lorsque je vois ce grand peuple changer A cet igard de loix civiles, IN mesure qu'il changeoit de loix politiques." Id. at VI, 15. s The above section is a summary of chaps. 9 ("De la s~vrit des peines dans les divers gouvernemens") and 15 ("Des lois des Romains A l'6gard des peines"). NATURAL LAW FORUM stone gave a more precise explanation of the same phenomenon when he wrote, in the Commentaries: We may further observe that sanguinary laws are a bad symptom of the distemper of any state, or at least of its weak constitution. The laws of the Roman kings, and the twelve tables of the decemviri, were full of cruel pun- ishments: the Porcian law, which exempted all citizens from sentence of death, silently abrogated them all. In this period the republic flourished: under the emperors severe punishments were revived; and then the empire fell.4 Blackstone seems to be asserting that the severity of the penal code of a state is an index of the weakness or insecurity of the government of that state. His choice of examples (the kings, the decemvirs, the emperors) suggests that he thought absolute governments were necessarily or at least typically "of weak constitution." 5 The political explanation of penal change recurs in Durkheim's Deux lois de l'lvolution pinale, as part of a general theory of historical changes in penology. His "Law of Quantitative Variation" states that the penal systems of societies become milder, on the one hand as societies become more "ad- vanced" in structure and organization, and on the other hand as their govern- ments move away from absolutism. 6 Durkheim, in his analysis of the political factor, emphasizes that a penal system will reflect the quality of the relationship between ruler and ruled. The relationship between an absolute sovereign and his subjects is not reciprocal but unilateral. As a Roman father by the civil law "possessed" his son, almost as he might possess a piece of property, so the absolute sovereign, according to Durkheim, has complete control over his subjects; he is not obliged to keep one side of a contract, nor is he bound by any regulation to protect the rights of the individual. Moreover, the absolute ruler is so far raised above the common run of men that he is likely to acquire a semidivine status. Since the ruler is the source of all law, not only crimes which threaten his life and dignity, but all or most infringements of the law are likely to be punished harshly, as akin to sacrilege.7 Durkheim was aware that the two factors (one sociological, the other politi- cal), which in his mind determined the quality of a society's penal code, are 4 WILLIAM BLACKSTONE, 4 COMMENTARIES 17 (3rd ed., 1768-9). See J. HEATH, EIGHTEENTH CENTURY PENAL THEORY 190 (Oxford, 1963). 5 This idea is not totally absent from DEL L'ESPRIT DES LOIS (see, e.g., V, 14), but is given little emphasis there. 6 DURKHE M, 4 L'ANNEE SOCIOLOGIQUE 65-95 (1899-1900), discussed, to my knowledge, only by E. A. Tiryakian, Durkheim's "Two Laws of Penal Evolution," 3 JOURNAL FOR THE SCIENTIFIC STUDY OF RELIGION 261-6 (1963-4). The Law runs: "L'intensit6 de la peine est d'autant plus grande que les socits appartiennent A un type moins .lev6 - et que le pouvoir central a un caract~re plus absolu." 7 DURKHEIM, Op. cit. supra note 6 at 66-8, 93-4. On the father-child relationship, Durk- heim might have quoted CICERO, PRO PLANCIO 12. 29: "parente . quem ueretur ut deum, neque enim multo secus est parens liberis." PETER GARNSEY quite independent. 8 Absolute power may be associated with single or complex kinds of society (societies which are less "advanced" or more "advanced"), and, in a single state, a drift towards or away from absolute rule is not neces- sarily accompanied by organizational or structural changes of a social kind. He saw Rome as a case in point. The basic cause of the relative harshness of Imperial penal law as compared with Republican penal law was, in his eyes, the tendency towards absolutism of the government under the Empire.9 It is curious that, although the factor of central importance for Durkheim was the degree of complexity of a society, most of the material he assembled in the course of his sweeping survey of history from ancient Egypt to nineteenth- century Europe relates only to the political explanation. He does not seem to have recognized that this casts doubt on the relevance of the social factor, the degree of advancement of a society, as a determinant. The political explanation for penal changes, as outlined by the theorists so far considered, is too general to be very informative, but it at least provides a starting point for a more detailed discussion of the issues involved. Its usefulness will depend on the extent to which it can be related to specific developments in the Roman penal system, which I now propose to analyze. The accepted view is that the penal system of the middle and late Republic was relatively mild. The system as we know it was milder in practice than it was in theory. In theory, death was the penalty for a number of crimes, among them, apparently, treason, incest, homicide (including parricide and murder by poison, which in Rome was commonly connected with sorcery), judicial corrup- tion, the forgery of documents or coins, and public violence. However, officials having responsibility for law enforcement did not as a rule see to it that the death sentence was executed. A defendant on a capital charge was allowed the opportunity of leaving Rome and Italy before he was actually found guilty by the court. This "self-imposed" banishment became permanent when a bill of out- lawry, or "interdiction from fire and water," was passed, stating in effect that any "exile" who returned to Roman soil might be put to death with impunity by anyone.