THE SC SILANIANUM IN THE SECOND CENTURY ce

The muttered protests of the crowd, who objected to the execution of the slaves of Pedanius in 61, is evidence that the increasing severity in the imple­mentation of the SC Silanianum did not go unchallenged.

Judicial decisions by provincial governors and their reasoning are seldom cited by name and that of the legatus Trebius Geminus on the meaning of a key phrase in the SC is an exception.^[165] In a treatise on the public or criminal courts - a reminder that the SC bears on public as well as civil or private law - the jurist Maecianus described the reasoning behind Geminus’ decision to execute a slave boy who was under-age (impubis), despite the convention that children were not liable under the SC Silanianum. Geminus’ justification was based on the circumstances of the murder, and on an original reading of the SC’s phrase ‘under the same roof. The under-age slave had slept in his murdered master’s room, at his very feet, and yet had not raised the alarm or even informed on the murder afterwards. In Geminus’ view, this under­mined the usual immunity of the impubis; the boy, who admittedly was too young to assist, was nearly an adult and was old enough to understand what was going on. He should therefore have taken action to call for help and not have preserved his silence afterwards. Secondly, ‘he believed’ that the SC protected those impuberes who were merely under the same roof - not those who were in close attendance on the master, and who therefore were in a position to act. Such under-age children, provided they understood what was happening, were not, he argued, exempt from punishment under the law.

Geminus’ decision, and the reasons for it, moved the reading of the SC further in the direction of judicial severity, expanding its scope and under­mining a traditional exemption from both torture and punishment. The defi­nition of being ‘too young’, he argued, no longer depended on the physical condition of being impubis but on a new, more subjective test, the expected level of understanding. Moreover, the shelter afforded by the roof had, again, shifted. All those not ‘under the same roof’ were, of course, already exempt from the quaestio, unless shown to be complicit. Within the group under the same roof, who were in general liable, an exemption hitherto had been granted to impuberes. But this impubis had not simply been under the same roof, he had been in the same room (and therefore able to assist by calling for help, which he did not). At a stroke, some parts of a household sheltered by the same roof had become more endangered than others.

All the documented decisions and debates of the Roman Senate, acting as a court, and of other judges, such as Geminus, tend in one direction: an expansion of those categories of socially inferior people liable for judicial torture and punishment under new readings of the SC and a general willing­ness to implement the decree in its harshest form, rather than opt for a more merciful approach. By contrast, as we have seen, the emperor Nero (or his legal advisers) had refused to bow to pressure to expand the application of the SC to freedmen, although the benefits of his decision were largely eroded in the decades that followed. It was therefore perhaps not a coincidence that the Roman Senate, which had been collectively responsible for the increased harshness of the SC over the years, was the recipient of an oratio, or legal speech, which went against that trend.

Marcus Aurelius (r. 161-80), unlike, say, Pliny and his Senate, is perhaps the only later legislator to show awareness of the all-important distinction between the investigation process under the quaestio and the infliction of punishment.

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