THE MURDER OF PEDANIUS SECUNDUS, 61 ce

In 61 CE, the application of the SC and the customary law, which preceded it, was tested in a cause celebre. Four hundred slaves from the familia (household establishment) of the murdered city prefect of Rome, Pedanius Secundus, were condemned to execution for failing to protect him, in line with ‘ancient custom’.

In Tacitus’ version of Cassius’ speech, a socio-legal justification for sever­itas is combined with the self-portrait of a speaker who glories in being out of line with contemporary mores, despising modernity and intervening only when the need was greatest. However, it should also be recognised that Tacitus’ Cassius is a literary creation. Like other jurists who delved into the meaning of obscure words in the Twelve Tables and the darker recesses of Roman antiquarian lore,^[149] Cassius is represented as a stereotypical con­servative. He was also a relic of the Roman Republic in another sense. The namesake of, and in some sense related to, C.

Cassius’ speech, in Tacitus’ representation, is therefore an assertion of ancient Republican integrity, against the debasement of public discourse by mistaken modern values. He is a throwback, but empowered by the fact that what he seeks to advocate and protect is ‘ancient custom’. Behind this is a more sinister reality. Cassius’ advocacy is not of ‘ancient custom’ but, as so often with Roman advocates, his reading of it. His justification for the execution - or judicial murder - of the 400 was based, not on a jurist’s scrupulous reading of text, but simply on fear. Masters were afraid of their slaves, he said, and always had been, although the risks were greater now, because slaves were now drawn from many lands and cultures. According to the speaker, the slave familia had also demonstrably failed to protect their master: surely, Cassius argued, the murderer must have let slip some words, or someone should have noticed that he had acquired a weapon, or seen him making his way through the house with his light. In short, the other slaves had a duty to disclose what they knew, and must be controlled through fear of the consequences to them of failure.

Cassius’ authority, as both lawyer and ex-consul, and his advocacy of punishment as a means of deterrence carried the day. ‘No one individual dared’, wrote Tacitus, to contradict him, but pleas were nonetheless forth­coming from anonymous protesters among the crowd on the grounds of the numbers, age and sex of the victims.^[154] Humanity and severity were in direct conflict. Cassius’ arguments based on fear anticipate the formulation by Ulpian, as do his comments on the liability of slaves to execution on the grounds that they should have known or noticed something and therefore disclosed what they knew in time to prevent the murder. They had failed, in other words, in their duty to protect, as originally enshrined in customary law.

This, it may be suggested, was the point at which the procedural provi­sions of the SC Silanianum converged fully with customary law on the pun­ishment of slaves for failure to protect. For Tacitus combines reference to ‘ancient custom’ with the phraseology of the SC: it was the familia ‘under the same roof,’ which, under vetus mos, was liable to punishment.^[155] But neither Tacitus, nor his Cassius, cited specific clauses in the SC to validate Cassius’ argument. And Tacitus could have done; he knew of the SC, as he records a clarification introduced by, probably, the SC Neronianum or Claudianum in 57 CE, that when a master was killed, even slaves manumitted by will could be subject to the quaestio and punished (although it is not clear than one inevitably followed from the other).^[156]

The SC Neronianum and the aftermath of Pedanius’ murder are mile­stones along a road leading towards increased judicial severity. The SC of 57 expanded the scope of the SC Silanianum by making slaves manumitted by will liable to the quaestio; and the precedents created by the executions in 61 were still more serious in their implications. One was that the slaves were executed even though the identity of the murderer was known. Secondly, children, it seems, were not spared; later interpretations, if not the SC itself, exempted children ‘under age’ from liability to the quaestio or punishment, although they could be frightened into telling what they knew.^[157] And thirdly, perhaps most significantly for the future, a new debate was opened up on the definition of familia. For one over-zealous senator, Cingonius Varro, proposed that the freedmen ‘under the same roof should also be banished from Italy. This was firmly vetoed by Nero; compassion might not have altered ‘ancient custom’ (antiquus mos) but harsh innovations, he said, had no place.^[158] Though the threat to freedmen, whom all would have agreed were part of the familia, was, for the time being, averted, it would return.

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