Universalism: the demerits
The second century saw the formal recognition of differential punishments based on status. That status was defined in terms of the distinction between honestiores and humiliores7 Capital punishment for honestiores took the form of exile rather than death for most crimes; and where death was still decreed the offender was often spared the horror of public execution by being allowed to choose the manner of his death, that is, to commit suicide in private.
But for humiliores punishment remained firmly geared to actual death. Worst of all, the standard form of execution by public decapitation, which society had always considered a proper way for a free man to die,79 was largely supplanted by more brutal forms that had hitherto been used only against slaves. To mention only the most �popular’, free persons were now thrown to wild animals in the arena, burnt alive, crucified or forced to fight as gladiators. A typical legal text of the period runs as follows:The penalty laid down by the Cornelian homicide law80 is deportation to an island.81 But nowadays82 capital punishment is usual, except for those whose status is too high. Humiliores are usually crucified or thrown to the beasts, those of higher status are deported to an island.
(D. 48.8.3.5).
The reasons for the distinction were partly sadistic and partly commercial. Deriving pleasure from cruelty may have been condemned by Seneca,83 but it was a fact of Roman life. It might however have been curtailed had it not been for the games. That industry had to keep on furnishing enough entertainment to satisfy the public demand, and the supply of condemned criminals had to be kept up.84
Nevertheless there was some light in the tunnel. The fully-fledged criminal jurisprudence that emerged in the second century featured the replacement of fixed statutory penalties by discretionary sentences.
Discretion could move either towards or away from leniency, and the latter included discrimination against humiliores. But there were also moves towards leniency. Under the principles of clemency enunciated by Seneca even the humble offender could hope for a lesser sentence than death if the facts warranted it. The lawyers therefore explored punishments which, even though still capital, stopped short of actual death. The offender might be sent to the mines, and a graduated scale determined whether he stayed there for life or for a period. Even the impact on civic status was carefully worked out. Where a woman was consigned to the mines for the convenience of the convicts, she retained her citizenship if she was only consigned for a period, but she lost it if she was consigned for life (D. 48.19.8.8). Sometimes even more subtle distinctions were drawn. A sentence to fight at the games might be expressed as in gladium (�to the sword’) or in ludum (�to the games’). In the former case the offender had to be killed within a year. But in the latter case the entrepeneur to whom he had been consigned might keep him in reserve, depending on his schedule of commitments. If the offender was not called on within three to five years, he was entitled to his freedom (Coll. 11.7.4).Subtle distinctions like these were unknown in the Republic, but they took up a great deal of the jurists’ time in the Principate. The results were sometimes generous and sometimes bizarre, but they were always an expression of humanitas Romana.
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- Universalism: the merits
- Humanus: Terence and universalism
- Preamble
- Evaluation
- NOTES
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- Racial prejudice
- The enforcement of human rights
- �Homo sum: humani nihil a me alienum puto’
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- Evaluation