Murder Was Not a Crime

Murder Was Not a Crime

JUDY E. GAUGHAN
Copyright Date: 2010
https://www.jstor.org/stable/10.7560/721111
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  • Book Info
    Murder Was Not a Crime
    Book Description:

    Embarking on a unique study of Roman criminal law, Judy Gaughan has developed a novel understanding of the nature of social and political power dynamics in republican government. Revealing the significant relationship between political power and attitudes toward homicide in the Roman republic, Murder Was Not a Crime describes a legal system through which families (rather than the government) were given the power to mete out punishment for murder.

    With implications that could modify the most fundamental beliefs about the Roman republic, Gaughan's research maintains that Roman criminal law did not contain a specific enactment against murder, although it had done so prior to the overthrow of the monarchy. While kings felt an imperative to hold monopoly over the power to kill, Gaughan argues, the republic phase ushered in a form of decentralized government that did not see itself as vulnerable to challenge by an act of murder. And the power possessed by individual families ensured that the government would not attain the responsibility for punishing homicidal violence.

    Drawing on surviving Roman laws and literary sources, Murder Was Not a Crime also explores the dictator Sulla's "murder law," arguing that it lacked any government concept of murder and was instead simply a collection of earlier statutes repressing poisoning, arson, and the carrying of weapons. Reinterpreting a spectrum of scenarios, Gaughan makes new distinctions between the paternal head of household and his power over life and death, versus the power of consuls and praetors to command and kill.

    eISBN: 978-0-292-79513-6
    Subjects: History, Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. ABBREVIATIONS
    (pp. ix-xiv)
  4. PREFACE
    (pp. xv-xvi)
  5. ACKNOWLEDGMENTS
    (pp. xvii-xx)
  6. INTRODUCTION
    (pp. 1-8)

    During the Roman republic murder was not a crime. In other words, the “killing of a human being by another with malice aforethought” was not “an act done in violation of those duties which an individual owes to the community and for the breach of which the law has provided that the offender shall make satisfaction to the public.”¹ Indeed, the republican Romans had neither the capacity nor the inclination to make the essentially private act of malicious and intentional homicide an offense actionable by the government. This fact is closely linked to the nature and evolution of political power...

  7. ONE KILLING AND THE KING
    (pp. 9-22)

    According to Roman tradition, the second king of Rome, Numa Pompilius, a man with a reputation for justice and piety, promulgated a law that prohibited murder.¹ One reason for the promulgation of the law during the monarchy is that the monarchs were trying to establish their own power in the face of what had preceded them, and one means of doing so was to control the power to kill. The kings arrogated such power for themselves and they defended, limited, or prohibited it in others. In addition to the self-interested motive of establishing and centralizing power, the kings also needed...

  8. TWO POWER OF LIFE AND DEATH Pater and Res Publica
    (pp. 23-52)

    Through the course of the Roman republic, power was diffused both within the institutions of government and beyond them. In many ways, managing and providing stability for an ever expanding and ever more complex civitas¹ was beyond the capacity of republican government alone. The limited capacity of republican government will be considered in more detail in the next two chapters. Suffice it to say here that institutions outside the government compensated for its limited power and scope. One of the most important and pervasive of these nongovernmental institutions was to be found within the Roman family. The father in a...

  9. THREE KILLING AND THE LAW, 509–450 B.C.E.
    (pp. 53-66)

    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...

  10. FOUR MURDER WAS NOT A CRIME, 449–81 B.C.E.
    (pp. 67-89)

    If murder was not a crime, what was? Before the middle of the second century B.C.E., there were no crimes. This does not mean that before the middle of the second century the Romans experienced either total nihilistic anarchy or beatific peaceful relations, only that the mechanisms for dealing with disputes, even violent disputes, must almost always have been beyond the purview of the government. Social structures such as the familia and the patron/client relationship must have served as the mechanisms for the resolution of myriad disputes. There also were additional methods of private arbitration when these more personal forms...

  11. FIVE CAPITAL JURISDICTION, 449–81 B.C.E.
    (pp. 90-108)

    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 few deaths took place compared with the number of deaths in such games during the empire.

    Furthermore, capital punishment included not just the...

  12. SIX LICENSE TO KILL
    (pp. 109-125)

    In a book about the relationship between homicide and political power, the killings of Roman tribunes and their supporters, starting with the death of Tiberius Gracchus in 132, hold a particularly profound place. In 133 B.C.E., Publius Cornelius Scipio Nasica Serapio, nominally a private citizen but in fact a powerful man in Roman government, led a band of senators into the tribal assembly and participated in the killing of two hundred Roman citizens, including the tribune of the plebs—a Roman official by the name of Tiberius Sempronius Gracchus. The homicide of Tiberius Gracchus and its many consequences led to...

  13. SEVEN CENTRALIZATION OF POWER AND SULLAN AMBIGUITY
    (pp. 126-140)

    In a book about homicide and its relationship to political power, Lucius Cornelius Sulla takes center stage. As consul in 88 B.C.E. he marched his troops against the city of Rome and then created the hostis (“enemy of the state”) declaration, which made certain citizens of Rome (and personal enemies of Sulla) into enemies of the respublica and therefore subject to death. While proconsul and general fighting on the eastern fringes of the empire, he was himself declared a hostis. Upon his return to Rome, he waged a civil war. He became dictator for restoring the laws, in 81, around...

  14. EPILOGUE
    (pp. 141-142)

    Each decade after Sulla’s dictatorship ended saw an increase in political violence until, within fifty years after Sulla’s dictatorship, the Roman republic came to an end. The pervasiveness of homicide in this period is infamous, for Sulla’s march on Rome, his proscriptions, and his employment of the hostis declaration would be copied by ambitious Romans who came after him, as would the use of the senatus consultum ultimum. The decisions to use these mechanisms came in response to ever-increasing political violence and homicide on the streets of Rome.

    At the same time, some Roman magistrates also chose to combat increasing...

  15. NOTES
    (pp. 143-180)
  16. BIBLIOGRAPHY
    (pp. 181-190)
  17. INDEX
    (pp. 191-194)