Wrongdoing and punishment in the archaic age

Prior to the emergence of the Roman state wrongdoers were usually dealt with by the familia or the gens concerned and the penalties inflicted (often by the injured person himself or his relatives) were mainly retributive in character.

With the gradual development of the state during the regal era ^{^[470]} the punishment of wrongdoers came to be regulated by a system of customary norms of a largely religious nature. These norms introduced limitations to the right of self-redress and the exercise of private vengeance - a practice that had deep roots in archaic society. At the same time a new type of offence began to emerge which were pursued by the state itself and not a private individual. These crimes were initially comparatively few in number and included treason, sedition, murder, and a few others. With respect to crimes against the state, it fell to the king, or a delegate acting in his name, to order the arrest of the accused, open and conduct the trial and pronounce the sentence. The punishment for such crimes was death, although the methods of inflicting capital punishment varied depending on the nature of the crime. Between private offences and public crimes there were many wrongdoings which were not classified and which were left totally in the hands of the individuals concerned. Thus the field of selfredress remained large and private vengeance continued to be an important factor throughout this period.

Of the public interests requiring protection one of the most important was the maintenance of the state of peace between the community and its gods (pax deorum, amicitia). In this respect, the punishment of those who committed certain crimes of a religious nature was primarily expiatory in character: it served to restore the pax deorum by eliminating the state of collective impurity brought about by the commission of the offence.

The typical sanction imposed for such offences was the consecratio, i.e. the assignment of the culprit (consecratio capitis) and his property (consecratio bonorum) to a deity for purification (piaculum). As a result the offender (referred to as sacer) was deprived of the protection of the laws and could be put to death by anyone, his killing being regarded as a sacrifice to the deity to which he had been assigned. With respect to less serious offences, the transgressor was required to sacrifice an animal as a means of appeasing the deity. It should be added here that many punishments originally justified on grounds of retribution were ascribed a religious significance. Penalties involving a religious element were imposed, for example, on a son who mistreated his father,¹" on a patron who violated his obligations towards his client,^{^[471]}[472] on a pater familias who killed his newborn child,^{^[473]} on a wife who committed adultery,^{^[474]} on a husband who repudiated his wife or sold her into slavery,^{^[475]} and on a person who removed the fence that marked the boundaries of his land.^{^[476]}Of a similar nature were the punishments imposed for murder (parricidium),"^{^[477]} the theft of sacred things (furtum sacrorum) or things dedicated to the gods (res religiosae), the giving of false testimony (testimonium falsum), arson (incendium) and certain forms of maleficent magic (carmen malum, incantare, excantare fruges).

During the early Republic the religious basis of many criminal offences began to fade away. This is reflected in the Law of the Twelve Tables, notwithstanding the fact that this legislation contained a number of provisions of a clearly religious nature.^{^[478]}[479] Under the same legislation the right of self-redress was recognised in certain cases, although the indiscriminate use of private force against acts damaging private interests was restricted.

Thus, for a number of offences involving injury to person or property specific pecuniary penalties were provided and the application of retaliatory punishment was made subject to certain conditions."⁹Moreover, in the republican period the number of crimes against the state continued to increase with the addition of offences committed by state officials in the execution of their duties. In this category fell, for example, acts of cowardice while in command of an army, the misappropriation of things belonging to the state (such as war booty or indemnities), the embezzlement of public money (peculatus, furtum publicum), acts of oppression against allied communities in time of war and the violation of the sacrosanctitas of the tribunes of the plebs.

Murder (parricidium)

The term parricidium, which initially denoted the killing of a pater familias, came to signify the voluntary and malicious (dolo sciens) killing of any free citizen. A law dealing with the crime of murder was attributed to king Numa Pompilius, who was also said to have introduced, for the first time, the distinction between murder and negligent homicide.^{^[480]} Wilful killing was punishable by death, the execution of the offender serving an expiatory purpose. On the other hand, a person who killed another by accident had to atone for the deed by sacrificing a ram before the parents of the person killed. In the archaic period cases of murder were investigated by specially appointed officials, referred to as quaestores parricidii.^{^[481]}According to Mommsen, the person found guilty of the offence and condemned to death was entitled to put his case before the assembly of the people which acted as the court of final appeal.^{^[482]} Some scholars have challenged this view, however, and many Romanists now accept that only the assembly had the authority to impose the sentence of death after a person had been convicted by a quaestor parricidii.^{^[483]}

Treason (perduellio)

High treason (perduellio) was recognised as one of the main crimes against the state from a very early period.

Within its ambit came a variety of acts regarded as threatening the security of the state, such as assisting an enemy in time of war or inciting an enemy to attack the Roman state, delivering a Roman citizen to an enemy and stirring up an internal rebellion. The person found guilty of treason was punished by death,^{^[484]} his killing being regarded as a form of expiatory sacrifice. In the archaic period cases of treason were usually dealt with by special officials, the duumviri perduellionis, appointed first by the king and later by the consuls.^{^[485]} A person found guilty of treason was entitled to raise an appeal before the assembly of the people. Another type of offence relating to treason was the proditio. Within this category of offence came various acts involving disobedience to orders given by a magistrate in pursuance of his duties as a military commander.

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Source: Mousourakis George. The Historical and Institutional Context of Roman Law. Routledge,2003. — 480 p.. 2003

Wrongdoing and punishment in the archaic age

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