THE POWER OF FEAR

The primary purpose of the SC Silanianum was deterrence. Early in the third century, Ulpian, who was not a senator, set the passing of the SC Silanianum and its successor resolutions firmly in the context of masters’ fears for their own safety:

cum aliter nulla domus tuta esse possit, nisi periculo capitis sui custodiam dominis tam ab domesticis quam ab extraneis praestare servi cogantur, ideo senatus con­sulta introducta sunt de publica quaestione a familia necatorum habenda.^[141]

As no household could be secure in any way other than that the slaves should be compelled under pain of capital punishment to offer protection to their masters from dangers both from those within the house and from outsiders, for this reason, senatorial resolutions were passed concerning the public investigation (quaestio) to be conducted taking evidence from the familia of the persons killed.

The subject of the SC, then, was the procedures governing the running of the quaestio. However, embedded in the tradition, as it had evolved by Ulpian’s time, was a fundamental confusion, between the investigative process (quaes­tio), established by the SC, and the infliction of punishment on the guilty. How, in such a context, was guilt to be defined? The opening part refers to the punishment, which, under Tacitus’ ‘ancient custom’, awaited slaves who failed to protect their masters from danger, when they could have done; they were compelled to protect him ‘periculo capitis sui’. But the second part refers specifically to the court of investigation, quaestio, established by the SC Silanianum and its successors. As part of this process, slaves resident ‘under the same roof’ (sub eodem tecto) would become liable to judicial interrogation, which, for slaves, entailed the automatic use of torture,^[142] a rule which had the incidental effect of violating the principle established by Augustus and his successors that torture should not be used as a first resort.^[143] The primary purpose of the quaestio process was not to punish the slaves for failing to protect their masters but to find out what they knew about the murderer and his accomplices.^[144] Eligibility for judicial torture should not have meant, in itself, that the interrogated were automatically liable for punishment for failure to prevent the death.

One source for the confusion was that the two categories of slave, those who were liable for the quaestio and those who should face punishment for failure to protect, were virtually co-extensive. The slaves ‘under the same roof’ who might know about the murder were the same unfortunate indi­viduals who should have protected him. Slaves resident not ‘under the same roof’ could not have intervened and, in general, were not likely to know anything useful either. Nor should the fate of the murderer him/herself be ignored. The failure to protect was a different order of wrongdoing from being directly or even indirectly involved in the killing itself - yet the slaves who did nothing and the murderer faced the same penalty. These three ele­ments, then - the eligibility for interrogation, the liability for punishment for failure to protect, and liability for the death - became, from 10 CE, inex­tricably linked, owing to confusion in the Senate and the courts and, behind it all, elite masters’ fear of their own slaves. By the time of Ulpian, the all­important distinction between quaestio and supplicium had disappeared and regulations on punishment were also now ascribed, perhaps erroneously, to the original text of the SC:

Hoc autem senatus consultum eos quidem, qui sub eodem tecto fuerunt omni­modo punit, eos vero, qui non sub eodem tecto, sed in eadem regione non aliter nisi conscii fuissent.^[145]

This senatus consultum inflicts punishment (omm'modo punit) on those who were under the same roof but those who were not under the same roof but merely in the same region, it does not (punish), unless they were complicit in the deed.

There were also wider social assumptions at work. Punishments inflicted on the lower orders, slave and free, were designed to cause pain, to degrade and humiliate.^[146] The idea of torture as punishment was therefore already present in the Roman penal system and would find further expression, for example in the tortures of Christian martyrs who were ‘punished’ by torture in the context of the quaestio, as well as in the arena, for failing to recant.

The SC Silanianum, like many Senatus consulta of the first century CE, was primarily concerned with providing instructions to the magistrate about a process. Its main focus, therefore, was on the quaestio, by which the violent death of a dominus would be investigated and the killer(s) punished. The ‘liability’ of slaves under the SC’s provisions on the quaestio was to be interrogated under torture to find out what they knew. Coexisting with the resolution, however, was a separate convention, enshrined in older custom­ary law, that slaves who failed to protect their masters, were liable for pun­ishment. While it is possible that this was also acknowledged in the SC, it was not germane to its primary purpose. However, given the overlap of the categories of slave liable for judicial torture and those liable, under vetus mos, for execution, it was not likely that they would remain distinct for long.

5.