Bryn Mawr Classical Review 2010.05.12
Judy E. Gaughan, Murder Was Not a Crime: Homicide and Power in the Roman Republic. Austin: University of Texas Press, 2010. Pp. xviii, 194. ISBN 9780292721111. $50.00.
Reviewed by Jack Lennon, University of Nottingham (email@example.com)
Murder was not a Crime: Homicide and Power in the Roman Republic, aims right from the start to demonstrate that the word 'murder' is problematic and out of place in modern discourses on republican law. Gaughan argues that at no point in this period did the government concern itself with private acts of violence that did not threaten the stability of the res publica. This attitude was shaped by the nature and focus of power (particularly the right to kill) in Roman society before, during, and after the republic. The argument is not without its potential stumbling blocks, yet the author is careful to highlight and answer them throughout. The result is an interesting reinterpretation of the various republican laws and magistracies that may be thought to deal with the crime of 'murder'. While Gaughan acknowledges that much of the book focuses on Roman law, the wider implications of her arguments mean that it will be useful for scholars interested in the changing nature of political power and social relations across the republic, as well as those concerned with issues in ancient law.
The introduction sets out some preliminary considerations regarding the republican vocabulary of killing, noting that words such as caedere, interficere, and necare cannot be translated as 'murder', since they may refer to both justified and unjustified acts of homicide. The various sources under consideration are listed, as well as the nature of 'crime' in the Roman republic. Gaughan states that where homicide appears in the ancient texts, it was "peripheral to offences that required direct government involvement in part because the act of homicide did not directly affect the government or those governing."1
Chapter 1, "Killing and the King", is based on an earlier publication by the author from 2003.2 The chapter begins with the law against murder attributed to Numa concerning deliberate homicide, which was punishable by death, and unintentional homicide, in which a scapegoat might be offered in the place of the killer. The author sees the law as an indication that the king regulated cases of homicide and that the right to take life belonged to the king alone. This is demonstrated by reference to the leges regiae and the myth of P. Horatius. While reasonable justification is put forward for the authenticity and dating of the leges regiae, the reliance on Livy and Dionysius as evidence for Horatius remains problematic. Following Livy's assertion that after killing his sister, Horatius was charged with treason (perduellio), Gaughan suggests the possibility that the offence lay in Horatius' infringement of the king's right to take life, raising the issue of how much power was held by the Roman pater under the monarchy. In addition to the social issues raised here, Gaughan proposes a religious dimension, whereby the king was tasked with maintaining the pax deorum, and so had to ensure expiation for acts of homicide within the community. Controlling the original act of killing ensured this. Finally, the author notes that in a system where a single figure held supreme power, a single act of homicide could potentially threaten the stability of the state, demonstrating why the murder law may more logically be dated to the period of the monarchy.
Chapter 2, "Power of Life and Death", proceeds to demonstrate that under the republic the authority of the king was disseminated amongst the Roman patres, and so homicide was no longer an issue for the government. The family is viewed as a microcosm of the republic, with each pater familias expected to protect the state and control those under his influence by his exercise of vitae necisque potestas, which is examined in considerable detail. Gaughan discusses the role of gender in defining this power, sons being punishable for public acts while daughters were frequently (but not exclusively) killed to punish sexual misconduct or protect their virtue, as in the case of Verginia. It is implied that the nature of paternal power developed over time, and fluctuated in reaction to expansion in the territory and power of the empire. Although public institutions began to encroach on the power of the Roman father, it is argued that this authority was never 'replaced' under the republic. The actions of senatorial fathers against their sons during the conspiracy of Catiline demonstrate the lingering importance of this power as late as 63 B.C. The state might have influence in cases of vitae necisque potestas, but this was not to the detriment of the father, who could not be denied his rights and duties as a Roman pater.
Chapter 3, "Killing and the Law, 509-450 B.C.E.", examines the dissemination of power in the aftermath of the expulsion of the kings, focussing on the limiting of magisterial power to execute citizens. This limitation begins with the popular assembly asserting its right to condemn a citizen as homo sacer via plebiscite, an act which removed culpability for the homicide demanded by the verdict; this was followed by the institution of the right of appeal, which protected all classes from abuses of temporary magisterial imperium. From here Gaughan considers the presence of laws on justifiable/unintentional homicide in the Twelve Tables, while noting that these do not presuppose the presence of a murder law. The tradition of the scapegoat as representing a blood-offering in payment for unintentional homicide is discussed, although sadly without reference to René Girard's extensive work on the subject.3 The death of a ram in payment for unintentional homicide is interpreted as indicating that the death of the culprit was demanded for malicious homicide, although Gaughan is reluctant to state the extent to which the government was involved in meting out punishment.
Chapter 4, "Murder was not a Crime, 449-81 B.C.E.", discusses certain forms of actionable homicide under the republic, specifically kin-murder, poisoning, or the killing of government officials, as well as acts of homicide that might involve charges of treason or of being a 'dagger-wielder' (sicarius). Each of these is linked to the disruption of social order or endangering the city, and thus merited government intervention. In particular, the author stresses that "the sicarius was not necessarily a killer, and the quaestio inter sicarios was not necessarily a homicide court."4 Incidents of parricide are considered in both their social and religious contexts, demonstrating that it caused greater damage to the social fabric than ordinary murder, whether through weakening the absolute authority of the pater familias, or through the threat of divine vengeance upon the community. This was expiated via the highly ritualised method of execution.
Although mentioned briefly, the notion of harmful magic as an offshoot of poisoning (veneficium) would have profited from further discussion, as it feeds well into the author's theory on the socially harmful and subversive nature of these particular forms of homicide.5
Chapter 5, "Capital Jurisdiction, 449-81 B.C.E.", monitors the gradual accumulation of power by the government throughout the republican period. The creation and roles of the quaestores parricidii and the tresviri capitales are examined here (not in chapter four, as is stated in the introduction), with the former being viewed as advisory bodies who decided whether cases of homicide were justified or accidental, and the latter as supervisors who oversaw the execution of citizens, but did not pass judgement on them. However, while certain methods of public execution (crucifixion, the sack, and strangulation) are discussed, the use of state executioners receives strikingly little attention. On whose authority did they act? What are we to make of the executioner's order 'age lege'?6
We see an increasing move towards government involvement in cases of wider public interest, such as the Bacchanalia scandal and its aftermath, but once again it is the safety of the res publica that is at issue, not individual acts of murder. The creation of permanent courts was a cause of friction, however, as they began to encroach on the power of Roman families. The reaction against this encroachment appears in the tribunate of Gaius Gracchus, as his limitations on the powers of the senate to act without reference to the people far outlasted his own life.
Chapter 6, "License to Kill", focuses on the deeply ambivalent status of the senatus consultum ultimum and its use against the Gracchi, the tribune Saturninus and, later, the followers of Catiline. The ambivalence is visible in the subsequent treatment of those magistrates who used it. This is viewed as indicative of a rising empire responding to new threats and developments, while still clinging to its most fundamental principles. Again, the relationship between homicide and power is seen as the heart of the issue, since it was not the act of homicide that mattered, but the position of the person or institution executing it. It was not acceptable, but neither was it wholly condemned. Gaughan notes the curious lack of legislation against acts of political assassination, despite the string of prominent homicides that constituted precisely this.
Chapter 7, "Centralization of Power and Sullan Ambiguity", is the final chapter; it deals with the actions of Lucius Cornelius Sulla, in particular the declaration of his personal enemies as hostes and his use of proscriptions. Here Gaughan considers the role of the lex Cornelia de sicariis et veneficiis and the acts it sought to curtail. For a brief period the enemies of Sulla were transformed into the enemies of the republic, and the populace was essentially forced to carry out the removal of his enemies. Following this period, however, order had to be restored and this, Gaughan argues, is the key to understanding the lex Cornelia de sicariis et veneficiis. The law was not innovative in content, but it did reaffirm established values (discussed earlier in the book), signalling an end to the conflict that had preceded it. Nevertheless, by temporarily consolidating power, which had been divided throughout the republic, around a single individual, Sulla paved the way for those who would follow him. Even at this stage, however, Rome could not fully conceive of the idea that murder harmed the state, and thus there could be no murder law until the advent of the Principate.
Gaughan's argument is persuasive, despite occasionally being vulnerable to criticism from more sceptical readers for her treatment of late republican sources and the evidence they offer for fifth and fourth century legal developments. The work is well structured and signposted with translations of ancient and modern sources provided throughout. The few criticisms I have listed refer more to areas where the author's ideas might be widened, as opposed to serious flaws or omissions. Overall, this is an enjoyable and well-researched work, which offers an interesting hypothesis that I hope will be a useful addition to the wider debate on Roman law. As stated above, however, one of its greatest strengths is its consideration of the wider implications of homicide in Roman society. Accordingly, it sheds a fascinating new light on the wider issues of power in the republican period and beyond.
1. p. 6.
2. J. Gaughan, 'Killing and the King: Numa's Murder Law and the Nature of Monarchic Authority' Continuity and Change 18.3 (2003), 329-343.
3. Cf. R. Girard (1972) 'La Violence et le Sacré' (Paris)
4. p. 74.
5. In particular, see M. Dickie, Magic and the Magicians in the Greco-Roman World (Oxford, 2001), 145-9; J. Rives, 'Magic, Religion, and Law: The Case of the lex Cornelia de sicariis et veneficiis' in C. Ando and J. Rüpke (eds.), Religion and Law in Classical and Christian Rome (Stuttgart, 2006), 47-67.
6. Cf. Sen. Controv. 9.2.22.