Roman Law and the Virtual Death Penalty
posted by Nate Oman
Criminal law is not really my area of interest, but some reading in Roman law has got me thinking about the death penalty. I’ve always found Roman history — particularlly the Republican period — very interesting and were I better at languages I would love to have been a classicist. Roman politics, especially in the late Republic, was a full contact sport as it were. Bribery, organized violence, assination, and — most importantly — criminal prosecution were an ordinary part of political hard ball.
If you read the texts of various Roman laws, particularlly very early legal texts like the Twelve Tables, it is awfully bloody minded stuff. (My favorite provision is the one that allows a debtor’s creditors to divide shares, meaning literally that they could dismember his body for non-payment of debts, presumeably on a pro rata basis.) In practice, however, the Romans were remarkably fastidious about killing one another. There was no system of incarceration, and generally speaking citizens were never executed. On the other hand, numerous Roman laws did call for the death penalty. In practice, however, someone sentenced to death was given several days before the sentence was carried out in which they could either kill themselves (this was a way of preserving the family estate) or go into exile. Indeed, by the late Republic the assumption was that a death sentence, particularlly for a political crime such as treason, was a de facto sentence of exile.
I suspect that moderns are incapable of really feeling what exile meant for an ancient Roman, the horror of being seperate from the graves and shrines of one’s ancestors, the loss of citizenship (which was a religious as well as a civic event; indeed there was precious little distinction between the concepts), etc. etc. Of course in the social breakdown of the late Republic, many an exiled Roman patrician was happy enough to enjoy life in some Greek speaking city like Athens or Rhodes. Still, exile was a death of sorts.
The interesting thing to me about the Roman practice of exile is that it seemed to allow the community to maintain the appearance and practice of capital punishment without actually killing anyone. The civitas could express its ultimate moral and legal condemnation — “This many is worthy of death” — without actually making the irrevocable step of strangling the guilty party, or at least not strangling all that many guilty parties. It was a kind of virtual death penalty.