Murder Was Not a Crime: Homicide and Power in the Roman Republic

Three. Killing and the Law, 509–450 B.C.E.

killiNg aNd the laW, 09–0 b.C.e. According to Roman tradition, when the Romans ousted their kings and established annual magistracies, the chief magistrates retained the political powers of the kings; among these was the right of summary execution. These magistrates, in addition, carried symbols of royal power in the fasces, a bundle of rods and axes bound together, signifying the chief magistrates’ right to scourge and kill citizens. Then, in the second year of the fledgling republic—the tradition continues—the consul Valerius limited the magisterial authority of summary execution by promulgating a provocatio law whereby Roman citizens could appeal to the people from capital and corporal sentences of magistrates. At the same time Valerius passed a law removing the axes from the fasces when they were carried within the city. Thus, he limited the actual right to kill at the same time that he removed the visible symbol of that right. The right to kill and the simultaneous limitation of that right remained a characteristic expression of the power possessed by chief magistrates throughout the republic as well as a characteristic expression of the relationship between magistrates and citizens. The Roman tradition about provocatio and the fasces reveals two important themes of this study: the right to commit homicide is a means of defining supreme power, and the supreme power does not belong exclusively in the hands of a centralized institution of the government. The sixth and fifth centuries B.C.e. saw the creation of some of the formative ideology of the relationship between citizens and their government: the relationships among the evolving institutions of the government; the founding of republican magistracies and other institutions; the beginning of the struggle for power between plebeians and patricians, which put its indelible mark on these institutions; and the publication of laws shaped how the government functioned. Any study of these formative years is hindered by the three  murder was not a Crime scant or nonexistent primary evidence and the skepticism with which one must view the later sources. Nevertheless, what evidence there is suggests that murder was not a crime because the nature of power in the early Roman republic required that it not be. What follows is a reconstruction and analysis, based on the available evidence, of the nature and development of political power as it is revealed in the treatment of homicide in this period. the first PlebisCite A homicide-related plebiscite from the early republic reflects the struggle for power that took place between plebeians and patricians. Furthermore, the treatment of homicide shows the extent to which the power of governing officials was limited by its diffusion to citizens more generally. Finally, the absence of a murder law in the XII Tables means that in the middle of the fifth century, murder was not a crime. That control over the act of homicide (either committing it or punishing it) is a display of power is revealed in an early plebiscite, indeed in what might be the first plebiscite ever.The second-century C.e. antiquarian Festus, in his book On the Meaning of Words, defines the term homo sacer (lit., sacred person) as follows: At homo sacer is est, quem populus iudicavit ob maleficium; neque fas est eum immolari, sed, qui occidit, parricidi non damnatur; nam lege tribunicia prima cavetur, “si quis eum, qui eo plebei scito sacer sit, occiderit , parricida1 ne sit.”2 But a homo sacer is he whom the people judged guilty of an evil deed, and it is not right for him to be killed, but, whoever kills him is not condemned as a parricide; for it is the concern of the first tribunician law, “If anyone will kill him who was made sacer by this plebiscite, he is not to be [treated as] a parricide.” By means of this first plebiscite, the plebeian assembly stakes claim to power by insisting that it has the right to determine when someone is subject to the penalty of death.The insistence is evident in the double claim to authority within the plebiscite.The initial claim is that the assembly has the right to make a person sacer in the first place. By virtue of this designation, the person becomes the property of the gods and becomes a potential sac-  Killing and the law, 509–450 B.C.e. rificial victim.3 This means that the killerof the homo sacer does...