14 Unpardonable Crimes: Fourth Century Attitudes

O F ROBINSON (GLASGOW)

In the Republic and Principate clearly there were no unpardonable crimes. There was no ranking of crimes in this context. In the first century BC a capital penalty meant enforced exile.

The purpose of this chapter is then, first, to look at the texts which explicitly refer to crimes as being beyond pardon, next, to consider the gravity of these particular crimes, then to consider what crimes were not included, and, finally, to attempt some explanation of the choice of crimes as unpardonable. I take the “unpardonable” crimes to be those so described in Theodosian Code 9.38, de indulgentiis criminum; Justinian’s Code has no such title, and its compilers do not seem to have felt the same need to contrast levels of criminality.^[286] The Theodosian Code, like Justinian’s, does have a title de abolitionibus, that is, on the annulment of an accusation, at the prosecutor’s request, but this title does not deal with amnesties, the suspension, as a mark of grace, by the emperor of pending charges; such amnesties are recorded in Justinian’s Code under the rubric de generali abolitione, which reflects the procedural approach as much as the pardon.^[287] Because of the unfortunate (and significant?) ambiguity of the Latin word “reus”, which means both “accused” and “condemned”, it is by no means always clear whether the imperial enactments in the Theodosian Code are dealing with pardons or instead with amnesties; the rubric gives a mild pre­sumption for the former.

CTh 9.38 consists of twelve imperial constitutions under the heading de indulgentiis criminum, and there are two comparable Sirmondian constitutions. Two of these texts are specific, and do not reveal general attitudes to crime and punishment: one was concerned solely with the province of Lycia, whose citi­zens seem deliberately to have been degraded by a former governor (CTh 9.38.9, AD 396); the other laid down that civil servants who had served under Attalus or Stilicho were pardoned if they had swiftly returned to their legitimate service, but deprived of their posts if they had been too slow (CTh 9.38.11, AD 410). So we shall ignore these two enactments and also the enactment addressed to the Senate, which remarked that a pardon removed the consequences, not the guilt, of a crime, and warned that: “He who gives pardon to the Senate, condemns the Senate” (CTh 9.38.5, AD 371, abbreviated in CJ 9.43.3).

In AD 322, on the occasion of the birth of a grandson, the Emperor Constantine pardoned all criminals, excepting poisoners (venefici, who may include sorcerers), murderers and adulterers.^[288] This seems to have meant release from punishment, a pardon, rather than an amnesty for pending criminal charges. In 354 Constantius, wishing to set behind him the unhappy memories of Gallus (or Magnentius), ordered that everyone should be safe, apparently from prosecution, except for “the five capital crimes”, but he did not specify them; perhaps they were magic practices, treason, homicide, adultery, and rav- ishing.^[289] Waldstein suggests that they may have been the five referred to by Ulpian as forfeiting a woman’s dowry: treason, sedition, parricide, poisoning, and murder.^[290] However, Constantius’ superstitious fears, revealed so plainly in other enactments, argue strongly that magic was one of them, and he probably understood magic to comprise poisoning, while sedition could fall under trea­son—or be omitted from the list; adultery and ravishing were regular concerns of the fourth century emperors, and are more likely to have been meant than the unusual crime of parricide.

In the first of two enactments, both issued to celebrate Eastertide, Valentinian, Valens and Gratian released from confinement all those under criminal charge or held in prison, with the exception of those who had commit­ted sacrilege against the Imperial Majesty, crimes against the dead, poisoning or magic, adultery, ravishing, and homicide.^[291] The same emperors in a later enact­ment omitted crimes against the dead from their list when they released those “now tormented by the unhappy expectation of judicial torture and the fear of punishment. However, consideration must be shown for the decrees of the ancients in order that We may not rashly permit to escape punishment the crime of homicide, the disgrace of adultery, the outrage of high treason, the evil of magic, the treachery of poisoners, and the violence of ravishing”.^[292]

A decade later, in a proclamation addressed, at Rome, to the Vicar of the City, Gratian, Valentinian and Theodosius seem to have issued a general par­don.

“The day of Easter joy permits not even those persons who have committed crimes to be afraid. Let the terrible prison for once be open to the unaccustomed light. We decree, however, that any person shall be excluded from this grant of pardon who in his haughtiness has encouraged a wicked and criminal conspiracy against the Imperial Majesty, or who, seized by a parricidal madness, has stained his hands with the blood of his own kin, or who beyond this is defiled by the killing of any man, or who has invaded the marriage bed and couch of another, or who has been a ravisher of virginal modesty, or who in his blindness has violated the revered bond of cognate blood by unholy incest, or who has compounded poisons for mind and body, poisons sought from noxious herbs and murmured over with dread secrets, or the skilled worker who, by copying the sacred imperial features, assailing the divine countenance, has sacrile­giously coined their venerable images.

Thus they continued to ignore crimes against the dead, but added parricide, incest, and coining. Another pardon, or perhaps an amnesty, is recorded in a Sirmondian constitution of the same or the following year. The emperors wished to provide an environment in which even weaker brethren could follow a better life; all rei were to be freed from prison, except those accused of the five customary unpardonable crimes.^[294]

Three years later, in an enactment again addressed to the Vicar of Rome from Milan, the emperors dropped incest and parricide, but included stuprum, sacri­lege, and violation of sepulture.

“We order all persons who have been accused of minor crimes to be completely exempted from the danger of prison and the fear of punishment. Whence it appears that those persons are not included who have been driven by their fierce passions to the more savage crimes. Among these the first and greatest is the crime of high trea­son, then the crimes of homicide, poisoning and magic, stuprum and adultery, and— of equal enormity—sacrilege, and violation of tombs, ravishing, and the coining of counterfeit money.”^[295]

The following year, in an enactment directed from Milan to the Praetorian Prefect, incest was back, but stuprum was omitted, the Easter pardon was referred to as customary, and judges were not to wait for “proclamations of Our Eternity which may, perchance, be delayed”. The prisons were to be emptied and all released from their chains.

“But we except those persons by whom We have observed that the common joys and happiness are contaminated if they are set free. For who could grant a pardon during holy days to a person guilty of sacrilege? In a time of chastity who could pardon an adulterer or a person guilty of incest? In the midst of the greatest peace and the com­mon joy who would not prosecute the more vigorously a ravisher? A person who by some enormity of crime has not permitted the buried dead to rest in peace shall receive no respite from his bonds. The poisoner, magician, and counterfeiter of money are to suffer tortures; the homicide shall always expect the death which he has inflicted; the person guilty of high treason must not hope for pardon from his lord against whom he has attempted such a crime.”^[296]

A year later there was another pardon, perhaps also with an amnesty, again with the exception of those accused or guilty of the five capital crimes: homicide, adultery and related charges, treason, astrology and poisoning and magic, and counterfeiting money. All others were to be released from prison, relieved of their chains, freed from exile, removed from the mines, liberated from deporta­tion, and pending sentences of death were not to be inflicted (Sirm. 8, AD 386). It is clear that these were general pardons for convicted criminals.

In another pardon under Arcadius and Honorius the emperors may, of course, have presumed that certain offences were known to be unpardonable. The text says that all those sentenced to some form of exile or to the mines— severe penalties, but not the ultimate—were to be released from their punish­ment, except those who had refused to go into exile: “for a person is unworthy of kindness who, after his condemnation, has committed a crime against the law”.¹⁶ Again we see the absence in the imperial mind of any likelihood of an unjust conviction. In 410, after Stilicho’s downfall, viewed here as an occasion for all to celebrate, there was another general pardon, perhaps only for those awaiting trial, perhaps also for the convicted: “Since the state has been freed from the outrages of the tyrant, We command that all reos for any crime shall be set free”.¹⁷ Again, it is quite likely that the emperors assumed that this would not be applied to those guilty of unpardonable crimes.

So, in all seven enactments where the crimes counted as beyond pardon were made explicit, they included killing with potions (linked on five occasions with the practice of magic), homicide, and adultery. Treason was mentioned in six, and it is certainly possible that Constantine took it for granted. Magic practices were mentioned five times, always in conjunction with poisoning and once linked with astrology. Ravishing, which probably means abduction rape, was referred to five times, and may also be included as one of the offences related to adultery; the term stuprum only occurs once, but it too was clearly another of these offences, and it is probable that it was elsewhere included under adultery, since the classical jurists seem often to have defined adultery widely.¹⁸ Four of the texts referred to coining, and two to violation of sepulture—or three, if that was what was meant by crimes against the dead. Incest was specified twice, although it too as a sexual offence may have been classed with adultery; sacri­lege was also mentioned twice, and parricide once. The references to recidivism and contumacy seem to be on a rather different, less moralising, level, as are those to false accusation. In AD 382, bringers of knowingly false accusations were excepted from all forms of amnesty or pardon: “neither public nor private abolitio is to apply to nor help such persons, nor is either specific pardon or gen­eral relief to rescue them”.¹⁹ Both Codes placed this text in the context of annul­ments, even though amnesties and general pardons were referred to; it is logically consistent that a knowingly false accuser should not be allowed to

¹⁶ CTh 9.38.10, AD 400/405; cf. D. 48.3.13, Call. 6 de cogn.

¹⁷ CTh 9.38.12, AD 410: “Liberata re publica tyrannidis iniuria omnium criminum reos relaxari praecipimus”.

¹⁸ D. 48.5.6.1, Papinian 1 de adulteris; 50.16.101, Modestinus 9 diff.

¹⁹ CTh 9.37.3, AD 382 (= CJ 9.46.9): “non publica abolitio non privata talibus prospiciat subve- niatque personis; non specialis indulgentia ne beneficium quidem eos generale subducat”. cf. CTh 9.39, de calumniatoribus. withdraw his accusation, and thus evade the penalty for calumny, while specific pardons granted to false accusers may have been presumed to have been brought about fraudulently.

Now, leaving aside the rhetoric, most of these crimes were grave. Treason of its nature attacks the foundations of the state, of civil society; it must be the most serious crime. (Indeed, so seriously was it treated that even to intercede for the sons of men convicted of treasonable conspiracy was to be branded with infamy and to be without hope of pardon—CTh 9.14.3.1, AD 397; contrast 9.40.18, AD 399.) Coining endangers the state’s economy, and could by Valentinian, Theodosius and Arcadius be equated with high treason.^[297] The mis­use of the imperial countenance seems to explain why both coining and melting down money could be compared to sacrilege—CTh 9.23.1pr, AD 356/348; 9.38.6, AD 381; cf. 9.22.1, AD 317/343. It is not clear what specifically was meant by the term sacrilege in these amnesties and pardons. The word was widely used to cover any violation of imperial decrees, e.g. CTh 16.4.4, AD 404; 7.4.30, AD 409. It could, for example, mean engaging in litigation on a Sunday, usurping a dignity or privilege granted by the emperor, abuse of the public post, demanding a fee for announcing public thanksgivings, not forwarding all the documents relevant to an appeal, adultery, ignoring the privileges of professors of painting, unauthorised erection of monuments at public expense, or the trade of prostitution.^[298] More conventionally, it could mean breach of clerical privi­lege, attacking churches or clergy, and heretical or pagan practices.^[299] It does not seem much used in the sense of an attack on God.^[300] Of course, the emperors saw themselves as having a religious as well as a secular role; they were God’s vicars on earth.

The fourth century, the period after the conversion of Constantine, was clearly a time of deep belief, of belief in uncanny powers as well as in the new monotheistic religion of Christianity.^[301] Constantius appears in the texts as downright superstitious, e.g. CTh 9.16.4-6. Whereas in the pagan Empire astrologers, soothsayers and the like had been subject to intermittent repression, there had been no attempt at a total ban.^[302] Now, magic was to be suppressed; the very word once generally used for wrongdoers, “malefici”, had become restricted to this meaning, perhaps because it was feared as a rival to Christianity. Constantine was prepared to exempt from criminal liability prac­titioners of folk medicine and “the assistance that is innocently employed in rural districts in order that rains may not be feared for the ripe grape harvests or that the harvests may not be shattered by the stones of falling hail” (CTh 9.16.3, AD 317/24), but his successors were in general less tolerant, although Valentinian wrote to the Senate that he did not think divination (haruspicina) dangerous or tied to sorcery.^[303] There may be a link with magic in the inclusion of violation of sepulture, although it seems almost casually that we read: “those persons who disturb buried bodies or the remains of the dead shall be subject to the same penalty” as the marble thieves who were the normal type of tomb­robber, in the early Empire as the later.^[304] Valentinian III, in the mid-fifth cen­tury, seems to have thought it had always been a capital crime, but he was par­ticularly concerned to stop the clergy hunting for relics (NovVal 23, AD 447).

The administration of poisons or potions was explicitly linked with magic in these texts, but the Romans seem always to have treated killing by poison as a special form of murder, from at least as early as Sulla’s lex de sicariis et venefi­cis. There is possibly a connection with witchcraft as understood in the early modern world, in that poisoning was particularly associated with women; out­breaks of mass poisoning by women of high status were alleged more than once in the Republic.^[305] Lack of medical knowledge made suspicion of poisoning easy when there was any unexpected death; we even hear of people reputed to be pro­fessional poisoners, such as Martina or Locusta.^[306] Its secrecy clearly made poi­son particularly fearful. And, apart from poisoning, parricide, the killing of one’s parents and other close kin, was another type of murder treated with par­ticular severity. It had the dreadful penalty of the sack; the offender was sewn up while still alive in a leather sack and cast into running water or the sea, so that he would not pollute the elements. We know from Cicero that this was a penalty actually used in the Republic; Hadrian replaced it, perhaps only when inconvenient, with being thrown to the beasts.^[307] Clearly there was a religious, an expiatory element. Moreover, since we know that intention was required, that a lunatic could not be held guilty,^[308] this crime was not unreasonably classed as unpardonable. Murder, ordinary murder, so to speak, is the most serious crime against the person; Valentinian III was to restrict pardons to cases of involuntary homicide (NovVal 19, AD 445). However, cognitio jurisdiction permitted variation of penalty depending on the circumstances of the crime,^[309] so a distinction could be made between culpable homicide and planned killing.

The inclusion of adultery in all the lists is perhaps the strangest to modern eyes; it is, after all, a rather private crime, but Christian influence seems suffi­cient explanation. It had not been capital in Augustus’ lex Julia, under which the penalty was relegation (i.e. exile without loss of citizenship) and partial confis­cation for the upper classes, corporal punishment for the lower (PS 2.26.14). The punishment, however, had become harsher well before the Christian Empire. It was classed as a capital offence during the third century;^[310] Constantius even laid down the penalty of the sack for adulterers.^[311] Justinian was to say that adultery was to be punished with the sword,^[312] but we also find him ordering an adulter­ous wife to be confined in a convent, although for a two-year period her hus­band could take her back if he chose (NovJ 134.10, AD 556). Adultery presumably covered what was strictly a form of stuprum referred to with par­ticular horror, a sexual affair between a respectable woman and her slave (CTh 9.9.1, AD 326/9; cf. NovAnth 1). The ravishing that is referred to in five of the texts was probably aimed at abduction and forced marriage. Rape in the mod­ern sense seems to have fallen under stuprum or vis, and not to have been a mat­ter of great social concern, but this kind of abduction was seen as a serious problem.^[313] The penalty for incest could be capital in the Principate,^[314] but, par­ticularly where the parties seem to have been in error as to their status and to have purported to marry, pardon was granted on an almost regular basis.^[315] In the later Empire the texts do not mention the parties’ confusion, but focus on the illegitimate status of any children. Perhaps the unpardonable type of incest was in the category which we would now describe as sexual abuse, such as that between father and daughter,^[316] for this seems to be the only capital form.

There are several rather odd things about our lists. One is the reference to “the five crimes”, a reference presumably quite clear to their contemporaries. Another is the crimes that are missing. And a third is the disparity between the description as “unpardonable” and the treatment we actually find in the sources. Justinian listed (under the various statutes which established their scope and jurisdiction in the first century BC) as capital crimes, that is those for which the penalty was death or deportation with loss of citizenship, the following: treason (lex Julia maiestatis); adultery (lex Julia de adulteriis coercendis); murder, with a weapon, and by poison—and Justinian included magic here (lex Cornelia de sicariis et veneficis); parricide (lex Pompeia); forgery, of documents, but not expressly of coins (lex Cornelia de falsis); armed violence, and the ravishing of virgins, widows or holy women (lex Julia de vi); and the embezzlement of pub­lic money (lex Julia peculatus).40 Seven statutes and at least ten different crimes. The regularity of their mention in our Theodosian texts makes it reasonably cer­tain that the five included treason, murder, probably poisoning and magic arts as one concept, and adultery, although it remains possible that poisoning and practising magic arts were differentiated, which would solve the problem. The other most frequently listed offence was ravishing; if, however, this does mean abduction rape, it seems to have been a rather localised problem, serious but not of concern throughout the Empire. Moreover, if it was seen as one of the five, this does not fit with references to the crimes of the “old law”; coining had a bet­ter historical claim.

Then there is the problem of the crimes that are missing from the Theodosian lists; there is no mention of the forgery of documents, or armed violence, or the embezzlement of public money, all described as capital by Justinian. Further, although, of course, crimes peculiar to slaves would not be the concern of these pardons or amnesties, freedmen were presumably included in them, yet no men­tion is made of the “unpardonable” offence of accusing one’s patron, and this had a long history.^{[317] [318] Homosexuality involving the seduction or rape of a free­born boy had often been treated as a capital offence in classical law;[319] in the Theodosian Code it was referred to with the utmost abhorrence—and obscu­rity—and the penalty was to be burned alive.[320] It is rather strange if so serious a crime was held to be covered by the term adultery. Among other offences reg­ularly treated as capital—although some may, of course, have been counted as falling under, say, treason or homicide—were desertion to the enemy (D. 48.19.8.2, Ulpian 9 de off.procon), stirring up a seditious mob,[321] making use of a private prison (CTh 9.11.1, AD 388), kidnapping (CTh 9.18.1, AD 315), the kind of forgery which brought about a false conviction,[322] the embezzlement of public money (CTh 9.28.1, AD 392), pillaging by an armed mob (PS 5.3.3), brig­andage,[323] and fire-setting.[324] Yet these are not included in the Theodosian lists.}

It is clearly not possible to equate unpardonable crimes with capital crimes. And indeed, not all of the unpardonable crimes were always capital. Although specific, the enactment of AD 410 (to which we made only passing reference at the start of this chapter) must have been granting a pardon for what could perhaps have been charged as treason.^[325] Complicity in coining might be inter­preted strictly, so as not to criminalize the innocent and ignorant (CTh 9.21.4.1, AD 320/6). We have a novel of Majorian which proves beyond doubt that adul­tery need not in practice be capital; the emperor rebuked the governor who had imposed a sentence merely of temporary relegation—and then let the guilty man escape.^[326] (Moreover Constantine had restricted the power to bring accusations, in order that marriages should not be disturbed.) The boundary between mur­der, culpable homicide and involuntary homicide must often have been unclear, as also the line between poisoning and an involuntary overdose of a potentially beneficial drug. We have seen that certain sorts of magic were not held in hor­ror. Violation of sepulture might be treated as an aggravated form of theft. Incest covered a range of behaviour; the Christian emperors classed marriage with deceased wife’s sister as incest, but the penalty seems to have been restricted testamentary capacity. Abduction rape must often have ended in mar­riage, despite the law’s threats. Sacrilege was almost a meaningless term; it was what displeased the emperor in his official capacity.

So why were some crimes announced to be beyond pardon? The case of trea­son is self-evident; no government can accept overt treason, even if pardon may be granted to particular individuals for particular acts. Perhaps, as regards adul­tery, the power of husband over wife reflected that of emperor over subject and of God over mankind, and thus her turning from him was itself a form of blas­phemy; it was also an affront to a patriarchal society. Murder is the ultimately anti-social crime within the state, and poisoning is always likely to be an aggra­vated form of murder because secret—and so often committed by women, who should suffer in silence. When poisoning can be linked with potions and incan­tations and assaults on men’s souls, then indeed there is no room for pardon. It is reasonable in any age, at least when talking of pardon for those convicted rather than an amnesty on the bringing of charges, to exclude recidivists. And the bringers of knowingly false accusations are in a sense committing the unpar­donable crime. Nevertheless one suspects that there is more of rhetoric than of substance in all these texts. The emperors were making statements; they were taking a moral stance on behalf of society. Punishment is necessary to maintain disciplina or utilitas publica, social stability. Not to punish the serious criminal undermines this stability. Individual cases may need individual and sympathetic treatment, but this is not a matter for a general imperial pronouncement on a solemn occasion.