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III. THE PUNISHMENT OF CRIME UNDER THE ROMAN EMPIRE.

IT

T is proposed in the present article to discuss the subject of criminal punishment under the Roman Empire, a subject which, though unattractive, can scarcely fail to be interesting at the close of a century that has witnessed so many important reforms in our own system of penal law-reforms that have saved our criminal jurisprudence from the reproach of being a disgrace to a civilized country, but that have, nevertheless, been doomed in a large measure to disappoint the hopes of their authors, and to open a fresh series of problems unforeseen by those who first conceived them. The penal system of the Roman Empire has had scarcely any perceptible effect upon our own system of punishments, and very little upon those of other countries; it was, on the whole, considerably more humane than that prevailing in England at the commencement of the nineteenth century, the proportion between crime and penalty was more justly fixed, and the law was animated by a more rational and equitable spirit. This we hope to make appear in due course. The subject of punishment is principally discussed in Dig. 48, 19, de pœnis ; 48, 20, de bonis damnatorum; and 48, 22, de interdictis, et relegatis, et deportatis; also in Cod. 9, 47, de pœnis, and 9, 49, de bonis proscriptorum seu damnatorum. The most important and comprehensive title is D. 48, 19, which contains a general survey of the system of punishment under the Roman Empire.

Punishments were divided by the Roman jurists into capital and non-capital; caput is said by Dr. Moyle to mean "the rights a man enjoys in virtue of being free, or a civis, or a member of a family;" consequently a defendant was

said to suffer capital punishment where he lost his life, or his liberty, or where he ceased to be a citizen of Rome; "rei capitalis damnatum sic accipere debemus, ex qua causa damnato vel mors, vel etiam civitatis amissio, vel servitus contingit." (D. 48, 19, 2, pr. & v. 11, § 3, ejus. tit., where the phrase "capitis pœna" seems to be used in a modern sense.)

CAPITAL PUNISHMENTS; the principal capital penalties were:-(1.) Death; the extreme penalty of the law (summum or ultimum supplicium) was commonly inflicted upon those found guilty of the graver offences, sometimes, as in the case of homicide, upon persons of low degree (humiliores) only, sometimes upon all offenders alike, as in cases of treason and parricide. Death was inflicted (a) by decapitation with the sword (capitis amputatio, D. 48, 19, 28, pr.), as was the practice in France before the Revolution; "vita adimitur, ut puta si damnatur aliquis, ut gladio in eum animadvertatur." (D. 48, 19, 8, § 1.) Beheading with the sword seems to have been confined to persons of free birth; v. an enactment of Constantine (in C. 9, 20, 16), relating to the crime of kidnapping, "servus quidem vel libertate donatus bestiis subjiciatur, ingenuus autem gladio consumatur."+

(b) By burning alive; "vivi crematio" (D. 48, 19, 28, pr.); this penalty was inflicted, e.g., upon deserters (transfugæ) and those who betrayed the secret councils of the Emperor (D. 48, 19, 8, § 2; 38, § 1); also upon slaves found guilty of plotting against the lives of their masters (D. 48, 19, 28, § 11). In English law, before the statute 30 Geo. III., c. 48,

* Loss of freedom was said to involve a capitis deminutio maxima, loss of civitas a capitis deminutio minor sive media. (Inst. 1, 16, 1-2.)

The reader may remember Earl Ferrer's petition to Geo. II. that he might be beheaded, rather than hanged; "this was refused. 'He has done,' said the old King, 'de deed of de bad man, and he shall die de death of de bad man.'" (Timb's Romance of London.)

a female servant, who murdered her master or mistress, was burnt to death, as guilty of petit treason. (Blackstone, Comm. IV., ch. 14.) Arson, within a town, was sometimes punished with death by burning (D. 48, 19, 28, § 12). Incendiaries seem to have been burnt under a provision of the Twelve Tables (Gibbon, Decline and Fall, ch. 44), and v. the cruelties inflicted by Nero upon the Christians for their supposed share in the great fire of Rome. Coiners and utterers of counterfeit coin were burnt, their crime being a species of treason (C. 9, 24, 2). In English law various offences against the coinage amounted to high treason, under the Statute of Treasons of Edw. III. and other enactments, and were consequently, if committed by a female, punished by burning to death.* (Blackstone, Comm. IV., ch. 6.) (c) Hanging (ad furcam damnatio) was sometimes inflicted (D. 48, 19, 28, pr.), e.g., on deserters to the enemy, and authors of riot and sedition. (D. 48, 19, 38, §§ 1-2.) It appears to have been the usual punishment for treason in the regal period, and under the law of the Twelve Tables. (Gibbon, Decline and Fall, ch. 44, and v. the description of the proceedings against Horatius in Livy, 1-26, "lex horrendi carminis erat: duumviri perduellionem judicent: si a duumviris provocarit, provocatione certato si vincent, caput obnubito, infelici arbore reste suspendito, verberato vel intra pomerium vel extra pomerium.")

We may also mention (d) exposure to wild beasts in the arena (e.g., for homicide, D. 48, 8, 3, §5; for brigandage, D. 48, 19, 28, § 15; for manstealing, C. 9, 20, 16), and (e) crucifixion; this barbarous punishment was confined to slaves and provincials, and the murder of a Roman citizen

* This punishment seems to have been inflicted down to comparatively modern times: Macaulay says, speaking of the state of England in 1685, "A woman burned for coining excited less sympathy than is now felt for a galled horse or an overdriven ox." (Hist. of Eng., ch. 3.)

by crucifixion was one of the charges brought against Verres by Cicero. But it seems that persons of humble rank might be crucified for forgery (Paul. sent. rec. 5, 25, I, cited by Dr. Moyle, Just. Inst., vol. 1), and for kidnapping (Ulpian, collatio 14, cited by Moyle, ibid.). "The piety, rather than the humanity, of Constantine, soon abolished in his dominions the punishment which the Saviour of mankind had condescended to suffer." (Gibbon, Decline and Fall, ch. 20.)

(2.) The capital punishment ranking next after death was servitude; "est poena, quæ adimat libertatem, hujusmodi, utputa si quis in metallum vel in opus metalli damnetur." (D. 48, 19, 8, § 4.) Sentence for life to the mines, in metallum, to work in the mines, in opus metalli (the distinction between which consisted merely in the weight of the chains worn), or to hunt wild beasts in the arena, in ludum venatorium, involved a capitis deminutio maxima, the criminal losing the status of a free man, and becoming what was known as a servus pænæ. (D. 48, 19, 8, §§ 6, 11, 12, 17, pr. "Some are slaves of punishment, such as those sent to the mines, or to work in the mines, and if anything has been given them by will, the bequest is void, it being given, as it were, to the slave of punishment, and not to the slave of the Emperor.") The penalty of " ministerium metallicorum" is also mentioned, as involving servitude (D. 48, 19, 8, § 8-36); it is not easy to say wherein it differed from opus metalli"; that it did differ may be inferred from a constitution of Alexander, in C. 9, 47, 9, apparebit, eam non oportuisse in ministerium metallicorum, nec in opus metalli dari." Criminals might also be condemned to work in salt pits and in chalk or sulphur pits. (D. 48, 19, 8, §§ 8 and 10.) Justinian abolished penal servitude. (Moyle, Just. Inst., 1, Nov. 22, 8, "non enim liberam conditionem in servilem statum mutamus, qui, ut eorum, qui antea servi fuerunt, manumissores essemus, operam dedimus.")

Dr. Moyle is of opinion that sentence to death gave the criminal the status of a slave, and this view is borne out by the passage (Inst. 1, 12, 3) cited by him; "servi autem pœnæ efficiuntur, qui in metallum damnantur et qui bestiis subiciuntur." So in English law, sentence of death was formerly followed by attainder; "for when it is now clear beyond all dispute, that the criminal is no longer fit to live upon the earth, but is to be exterminated as a monster and a bane to human society, the law sets a note of infamy upon him, puts him out of its protection, and takes no further care of him than barely to see him executed. He is then called attaint, attinctus, stained or blackened. He is no longer of any credit or reputation; he cannot be a witness in any court; neither is he capable of performing the functions of another man: for, by an anticipation of his punishment, he is already dead in law." (Blackstone,

Comm. IV., ch. 29.)

Even at the present day it would seem that sentence of death makes the criminal civiliter mortuus for certain purposes; witness the ineffectual attempts made in 1896 to serve the notorious Mrs. Dyer with a subpoena.

(3.) Next after servitude came civitatis amissio; this resulted (a) from deportation for life to an island, (Inst. 1, 16, 2; D. 48, 19, 28, pr. 48, 22, 18, § 1) which was substituted for the ancient "aquæ et ignis interdictio" (D. 48, 19, 2, § 1); (b) from sentence to hard labour for life on the public works, in opus publicum. (D. 48, 19, 17, § 1.)

NON-CAPITAL PUNISHMENTS; non-capital punishments were infinite in number and various in degree; some of the principal ones may be briefly noticed: (1.) Relegatio; i.e., banishment not involving a capitis deminutio. (D. 48, 1, 2, where Paul says that the term exsilium, as descriptive of relegation, is incorrect, "tunc enim civitas retinetur." D. 48, 22, 4. "Those relegated to an island retain their children in their power, because they retain all their other