Humanitas and punishment: the death sentence

Some—but by no means all—modern societies consider the abolition of capital punishment¹⁶ an essential step in the consolidation of human rights. What was Roman society’s position on this question in the Late Republic? Our answer will, at this stage, focus mainly on the situation where sentence of death is legitimately imposed after due and proper trial at which the accused is informed of the charges against him and is given every opportunity to make his defence.

The keynote speech—in effect the text for our sermon—was delivered by Cicero in 63 BC as part of his defence of C.Rabirius, charged with killing the populist tribune of the plebs, L.Appuleius Saturninus, thirty-seven years before. Cicero fulminates against the brutality of the populist forces, the Populares, who brought the prosecution:

I had cruel punishment taken out of the case. I wish I had been the first to do this; nothing could add more lustre to my consulship¹⁸ than removing the executioner with his scourgings and hook from the Forum and the cross¹⁹ from the Field of Mars. But the credit belongs to our ancestors. Far from endangering your freedom by harsh punishments, they protected it by mild laws which forbade the scourging of citizens or the holding of capital trials without your authority.²⁰ But the duumviri condemned a citizen unheard, digging up savage procedures in musty archives. Penalties under the regular laws leave some trace of freedom. Even if death is proposed we may die as free man. But the executioner, the covered head, the cross are the tools of tyrants, not of our society.²¹

Although Cicero does not use the word humanitas in the passage,²² he has made a fundamental statement on human rights.

The duumviri, whose only mandate was to find the accused guilty,²⁶ duly handed down that finding. Rabirius faced immediate death unless he appealed to the people, that is, availed himself of the institution known as provocatio ad populum. The institution was seen as Rome’s Magna Carta, as the shining beacon of the liberty of the subject; it had been written into the ancient duumviral process.²⁷ Rabirius exercised the right of appeal and the case went to the people, that is, to a regular trial by the popular assembly presided over by a tribune. During the preliminary stages of the trial Cicero persuaded the senate to substitute exile for the death penalty.²⁸ It was at this trial that Cicero delivered the extant speech for Rabirius. The case had an inconclusive outcome. The people, appalled at the harshness of the duumviral process, were disposed to acquit, but before a verdict could be returned a praetor struck the flag on the Janiculum; this traditional sign that the enemy was at the gate terminated the proceedings.²⁹

Cicero makes a number of human rights points in his speech.

Cicero had begun attacking savage forms of the death penalty, but again without condemning the death sentence as such, at an early stage of his career. In 80 he defended Sex. Roscius on a charge of parricidium, murder of a parent. The law prescribed a barbaric penalty: the condemned person was sewn into a sack in company with a dog, a monkey, a snake and a rooster and the whole package was thrown into the sea. Cicero addressed the jury as follows:

It is for you, jurors, to remedy the evils afflicting the state. The Roman people, once considered most lenient to its enemies, today labours under cruelty to its own citizens. Banish this cruelty from the state. It has condemned many citizens to an atrocious death, and has so hardened the most merciful men to evils that they have lost all sense of pity. When every hour brings another act of cruelty, even those of us who are most merciful by nature lose all feelings of humanitas.

(Cic. Rosc. Amer. 154)

Elsewhere Cicero says that the only way to avoid the penalty for parricidium, set in concrete as it is, is to persuade the jury to acquit, regardless of the evidence (Inv.

Cicero launched further attacks on irregular uses of the death penalty when he condemned Dolabella’s execution of Trebonius,³³ and when he registered a protest against his brother Quintus’ threat to burn people alive (Ad Q.fr. 1.2.6). He also noted with disgust that a slave who was expected to testify against his mistress had his tongue cut out prior to being crucified (Cluent. 187-8). Crucifixion did not usually arouse much emotion when used against slaves; it was a standard servile punishment. But the preliminary savagery was too much for Cicero. If any criticism can be levelled at Cicero in respect of the death penalty,³⁴ it is that he did not entertain any serious objections to the slaughter at the games. But very few people objected to it.³⁵