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

Five. Capital Jurisdiction, 449–81 B.C.E.

CaPital JurisdiCtioN, 9–1 b.C.e. The Romans are infamous in history for their many ingenious methods of killing and for the abundance of the killing that took place during their regime. Much of this killing, however, was not a product of the republic. Indeed, what is so striking about the republic in this regard is that, outside of war and the military, officials and institutions of republican government seldom killed anyone.1 Even the gladiatorial games of the republic are striking in how fewdeaths took place compared with the number of deaths in such games during the empire. Furthermore, capital punishment included not just the literal caput (“head”) but also loss of citizenship, and so “capital punishment” did not even necessarily mean death. In addition, when a citizen was condemned to death in an assembly or by a quaestio, that citizen could (and apparently nearly always did) choose to leave Rome at any point during the judicial proceedings—up until the very last moment—and thus suffer exile rather than death.2 From a modern perspective, then, the Romans were less barbaric than the United States is today with its continued employment of capital punishment, yet the reason for the rarity of death as a punishment was not so much a matter of humanity as a matter of the perceived role of the government, the extent of its power, and the nature of Roman politics. As a general rule the Romans did not want their government to have control over the life of a citizen. The result of such thinking was that throughout the republic, the power to kill lay in the hands of the people privately; as individuals involved in a dispute beyond the purview of the government; or publicly, grouped together in an assembly. In Chapter Three I argued that the Romans originally limited the power to kill citizens to the Roman assemblies because the assemblies were the institutions that most closely resembled the community as a whole. This is not to say that the assembly was not also an institution of government, but only that five 91 Capital jurisdiCtion, 449–81 B.C.e. it served as the most broad representation of the community.This practice continued over the course of the next two hundred and fifty years.3 The iudicia populi (“courts of the people”), as the assemblies came to be known in the times they dealt with judicial matters, were almost the exclusive locations of capital trials, and yet there are almost no examples of executions resulting from condemnations in these assemblies. “In fact, since the death of M. Manlius Capitolinus, in 384, no example of the execution of a death sentence pronounced by the assembly is recorded in history.”4 The early second century B.C.e., as an outgrowth of imperial expansion , saw the employment of ad hoc quaestiones (“investigations”) in which magistrates or a small group of senators would be selected by the people and by the senate to respond to emergency situations. Magistrates or a special commission would be appointed to investigate (quaerere) a reported offense, and these men would sometimes then temporarily wield the people’s power to condemn to death. This development was almost certainly a product of the growing number of Roman citizens.5 Some of these resulted in judicial decisions that ended with capital punishment. In a fewcases, the senate, without the authorityof the people, assigned magistrates to conduct these quaestiones, and they may have become a relatively regular occurrence by the mid second century. These temporary quaestiones established by the senate alone originally met with little resistance, but when the senate began, starting in 149 B.C.e., to establish regular standing courts (quaestiones perpetuae) for particular offenses, some with capital jurisdiction, there was a backlash.The creation and eventual permanent status of courts with capital jurisdiction created by the senate reveals an increased centralization of power, but the backlash reveals how attempts at increasing the government’s responsibilities, even for practical reasons, met with ideological obstacles. Before turning to the courts that predated these quaestiones, however, it will be fruitful to examine the responsibilities of those officials whose role was connected explicitly to capital punishment: the quaestores parricidii and the tresviri capitales. quaestores ParrIcIdII The very existence of these officials has the potential to bring into doubt the claim in this chapter that the Romans did not want officials or institutions of the government (with the exception of the assemblies) to have the...