Humanitas and punishment: exile

Humanitas Romana was the source of one of Rome’s greatest contributions to human rights, in the shape of the right of voluntary exile which allowed a wrongdoer to avoid punishment by leaving Rome and Italy.³⁶ There are two phases in the history of this institution.

The second phase saw the conversion of voluntary exile into what was, for all practical purposes, a statutory right. This was done by changing the wording of the capital sentence in respect of some crimes. The change was first made by Sulla. For example, his law of murder, the lex Cornelia de sicariis, replaced the death sentence by the aquae et ignis interdictio. Some later laws, including those of Caesar on maiestas and public violence, followed suit. Where a decree of interdiction had hitherto been something that the magistrate issued as a follow-up to his decision to leave the offender at liberty, his issuance of such a decree was now mandatory.³⁹

Voluntary exile (in its first phase) was greatly admired by Polybius. He says that when those who are tried capitally are found guilty they are given an opportunity to depart openly, thus sentencing themselves to voluntary exile.

The sentence of aquae et ignis interdictio was not a sentence of exile, although loosely referred to as such in literary sources.⁴¹ Exile was simply the offender’s expected response to the interdiction. Cicero makes this clear in his speech on behalf of A.Caecina:

Exile is not a capital punishment; it is an escape from punishment. No law of ours makes it a punishment for any crime. Those who wish to avoid imprisonment, death or disgrace take refuge in exile as if at a sanctuary. If they had not departed they would only have lost their citizenship when they lost their lives. When they go into exile they do not lose their citizenship by law, they are stripped of it by their own act of abandonment.⁴² The decisive moment is when the fugitive becomes an exile, that is, when he acquires the citizenship of the other state.

(Cic. Caec. 100)

At the time of Pro Caecina, 69 BC, Cicero’s statement that exile was not a punishment for any crime was correct. But in 63 BC he introduced the lex Tullia de ambitu which laid down a penalty of banishment for ten years for electoral corruption (ambitus).⁴³ The human rights connotations of ambitus provoked considerable debate. Four years before Cicero’s law, a tribune had proposed a harsh set of penalties for the crime. The senate had refused to recommend the bill, on the grounds that while harsh punishment was of some value as a deterrent, it was counter-productive because it discouraged juries from convicting (Dio 36.38.4-5). Cicero had taken a similar view of the punishment for parricidium (Inv. 2.58-9).

So much for the technicalities of voluntary exile. But does it have a more fundamental importance? Was it, even if only for the Late Republic, a de facto abolition of the death penalty? Caesar may have thought so, judging by the speech that Sallust puts into his mouth in the senatorial debate on the Catilinarian conspiracy.

Why not also recommend, Silanus, that they first be flogged? Was it because the Porcian law forbids it? So it does, but there are also laws that lay down that when citizens are found guilty they do not lose their lives but are allowed exile. Our ancestors took over from the Greeks the flogging of citizens and death for the condemned. But with maturity came the Porcian and other laws which allowed the alternative of exile.⁴⁴

None of the laws in question abolished the death penalty. The Porcian law forbade flogging, and Sulla’s laws substituted interdiction for death. In fact, therefore, Caeser was not contending for any formal abolition of the death penalty, he was merely claiming its de facto cessation. The record of punishments over the last fifty years of the Republic bears him out. It does not display any executions, only exiles.⁴⁵