Criminal Offences, Responsibility and Punishment

The criminal law of the Principate age contains elements indicative of a system that had advanced considerably beyond the system that prevailed during the Republic.

This is evident from consideration of the list of criminal offences and related criminal liability requirements. Treason and sedition were serious crimes, as were various forms of abuse of power by state officials. Within the scope of treason (perduellio) fell the betrayal of Romans to foreign enemies, inciting allies into becoming enemies and, from the fifth century, instructing barbarians how to build ships. It was also treason for a provincial governor not to relinquish his province on the arrival of his successor. However, during this era the most common form of treason was maiestas or crimen laesae maiestatis: conduct involving a threat to the safety or dignity of the emperor and his family. Of abuses by state officials, the most common was the extortion of money or other forms of property (res repetundae) by provincial governors and other magistrates from provincials. Similarly liable were persons in a position of authority, such as judges, who took money to deliver or withhold a particular decision. Other offences of this kind included peculatus, the embezzlement of public money, usually by a person in a position of responsibility; and de residuis, the failure to account for all the money with which such a person had been entrusted. In the early imperial age, the crime of public violence (vis) embraced the conduct of a magistrate who ill-treated a respectable citizen. In the same period, electoral corruption (ambitus) ceased to be of real significance, since magistrates were no longer elected by the popular assemblies but by the senate in accordance with the wishes of the emperor.

The law relating to murder was in general terms similar to modern law.

The crime of parricide, however, normally defined as the murder of an ascendant, involved a separate and particularly harsh form of punishment, the culleus (poena cullei) or sack: the person found guilty was sewn up in a leather sack, probably together with snakes and other animals, and thrown into a river or the sea. Adultery, strictly speaking the sexual intercourse between a married woman and a man not her husband,^{^[510]} was a crime whilst, in contrast, male homosexual practices were not, unless they involved the rape or seduction of a freeborn boy or man.^{^[511]} The rape of women is difficult to detect in the Roman sources, partly because it was closely connected in some parts of the empire with abduction marriage. Such an offence could have been classed as serious assault (vis), outrage (iniuria) or stuprum (a general term for sexual crime). Incest was an abhorrent crime, based on custom, not statute. Offences against property, such as theft and damage to property, continued to be treated as delicts, although certain aggravated forms of theft, such as cattle stealing (abigeatus), burglary and theft at the baths, constituted criminal offences. The forgery of documents (falsum), especially wills, and the forging of money were serious crimes, and so was kidnapping.^{^[512]} The criminal law of this period also encompassed offences against good morals or public order, including usury and interference with the officially organized supply of cereals and other foodstuffs (annona). An important aspect of the criminal law pertained to the need to control the conduct of private accusers in a system that lacked a public prosecution service, and where such right of accusation was never fully replaced by a magistrate’s initiative. The relevant procedural offences were calumny, prevarication and tergiversation, all regulated by the senatus consultum Turpillianum of ad 61. As previously noted, calumny (calumnia) was the bringing of a false accusation from malice.

Prevarication (praevaricatio) involved the collusion between the accuser and the accused for the purpose of weakening or eliminating undesirable evidence or supporting spurious defences, perhaps from friendship of influence. Tergiversation (tergiversatio) was the withdrawal of the charge without authorization by the court, including failure to take any steps needed to continue the action. Perjury could also fall under the senatus consultum Turpillianum. Roman law recognized that persons accused of crimes should be duly notified of the charges and granted the opportunity to defend themselves in a court of law.^{^[513]}

size=2 color=black face="Times New Roman">Criminal responsibility presupposed that the accused met certain requirements relating to age, sex and mental capacity. Children below the age of 7 years (infantes) were excluded from criminal liability as they were deemed incapable of forming the requisite criminal intent (dolus). Children below the age of puberty (impuberes—boys under 14 and girls under 12) were also presumed incapable of forming such an intent, although this presumption was construed to be rebuttable, particularly if they were approaching puberty.^{^[514]} Insane persons were also incapable of committing a crime, but this was attributed to the misfortune of their condition, which required proving, since insanity might be feigned. Moreover, they could be subject to restraint if they posed a threat to public safety.^{^[515]} A person was not criminally liable if he accidentally caused a prohibited harm.^{^[516]} Mistake or ignorance as to the law, contrary to mistake of fact, did not preclude culpability as it was held that citizens had a duty to know the law.^{^[517]} The law also recognized various defences and mitigating pleas that negated or reduced culpability for a criminal act, such as self-defence^{^[518]}; superior orders^{^[519]}; loss of self-control caused, for example, by justified anger or intoxication^{^[520]}; and duress and necessity.^{^[521]} Higher magistrates were immune from criminal prosecution during their term in office, but their immunity ended with this term.

An overt act was necessary for the commission of a crime; this could include speech (such as incitement to sedition or to murder), but a person could not be held criminally liable for thoughts alone.^{^[522]} A person who counseled the commission of a crime might be treated as committing the offence, or as being an accomplice. Accomplices were usually liable to the same penalty as the principal; they too must have possessed dolus and must have aided the principal with physical help, serious planning or concealment.

As previously observed, during the later Republic capital punishment practically ceased to be inflicted on Roman citizens except in times of civil unrest or strife.

In cases falling within the jurisdiction of the standing jury-courts, the accused ostensibly enjoyed a statutory right of fleeing into exile within a short period after he was found guilty of a capital crime. On availing himself of that right, he was then denied fire and water by a vote of the people (aqua et ignis interdictio). Such an outcome essentially amounted to a sentence of banishment from Roman territory, which after the Social War (91-88 bc) meant banishment from Italy. After the establishment of the Principate, the foregoing position remained practically unchanged in the case of condemnation on a capital charge by a quaestio perpetua. On the other hand, when a Roman citizen was declared guilty of a capital crime by an extraordinary tribunal this often entailed death. In the third century ad, the standing jury-courts virtually vanished and proceedings before extraordinary tribunals became universal. This period also featured the extension of the Roman citizenship to all the free inhabitants within the empire. As a result of these events, the capital punishment of Roman citizens became widespread. Moreover, different forms of punishment according to social status were securely in place by this time.

In the Principate era, the social distinction between the upper and lower classes found a clear expression in the legal notions of honestior and humilior. The honestiores (‘honourable’) were comprised of the privileged members of the governing class (senators, equestrians, civil servants, soldiers and members of the provincial town councils), whilst those belonging to the lower classes of society were collectively referred to as humiliores (‘humble’). The humiliores had a distinctly inferior standing in the eyes of the law and were subject to heavy and degrading punishments. By contrast, the honestiores were exempted from punishments of a shameful nature, and the pronouncements of death and other severe penalties against reputable citizens were rarely enforced.^{^[523]}

In relation to capital punishment the force of the distinction between honestiores and humiliores is exhibited by the fact that offenders belonging to the former group were as a general rule decapitated or conferred some other form of relatively painless and honourable death,^{^[524]} while offenders attached to the lower classes were usually subjected to cruel and degrading modes of execution, such as crucifixion, impalement, exposure to wild beasts and burning at the stake.^{^[525]} A similar distinction between the honestiores and the humiliores applied in connection with the non-capital punishments.^{^[526]} The most common forms of punishment imposed upon members of the honestiores class were deportation (deportatio) usually to an island or oasis, and expulsion (relegatio) entailing the offender’s exclusion from residence in a specified territory (normally Italy and one’s own province).

The former punishment had a more serious nature and it was accompanied by the loss of citizenship and property, though not of personal freedom.^{^[527]} The punishment of expulsion was a mild form of exile involving simple internment in an island without further consequences.^{^[528]} Other forms of punishment often inflicted on members of the upper classes included expulsion from the ordo to which the offender belonged, exclusion from holding civic office^{^[529]} and prohibition from pleading in the courts of law.^{^[530]}

The next focus is the non-capital punishments commonly imposed on offenders attached to the class of humiliores. These punishments embraced penal servitude in or around the mines^{^[531]}; confinement accompanied by some form of hard labour for the public benefit^{^[532]}; flogging; flagellation; and branding.^{^[533]} Condemnation to confinement for life with hard labour in the mines (ad metalla) was eventually held to involve loss of liberty. On the other hand, condemnation of a Roman citizen to confinement accompanied by some lesser form of hard labour for the public benefit (in opus publicum) was ultimately deemed to entail loss of citizenship but not personal freedom.^{^[534]}

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Source: Mousourakis G.. Roman Law and the Origins of the Civil Law Tradition. Springer,2015. — 339 p.. 2015

Criminal Offences, Responsibility and Punishment

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