Robinson - Penal Practice and Penal Policy in Ancient Rome-Routledge (2007)

PENAL PRACTICE AND PENAL
POLICY IN ANCIENT ROME
This book assesses Roman penal policy through an in-depth examination of

six high-profile criminal cases, ranging from the Bacchanalian trials in 186 BC
to the trials for treason and magic in the fourth century AD.
Robinson examines Roman criminal legislation (both that laid down by
Justinian and that codified and confirmed by him) as well as Roman atti-
tudes, both juristic and philosophical, to the purposes of punishment,
deterrence, retribution, reform and protection of the public, and how these
attitudes were modified over time. The author also discusses arguments for
fixed as against flexible penalties, the changes made in the actual punish-
ments and in those to whom they were applied.
In the absence of any extant general theory of criminal jurisprudence as a
basis for proper procedure, assessing Roman morality and values from their
penal policy has often been problematic. This book is, therefore, an essential
tool for any specialist, student or researcher wishing to know more about
Roman values from their approach to crime and punishment.
O.F. Robinson is Professor Emeritus of Roman Law at Glasgow University.

Her research interests are primarily Roman law and Roman law’s later history.
Her most important publications are Ancient Rome: City Planning and
Administration (1992) and The Criminal Law of Ancient Rome (1995).
PENAL PRACTICE AND
PENAL POLICY IN
ANCIENT ROME
O.F. Robinson
First published 2007
by Routledge
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CONTENTS
Acknowledgements viii
Introduction 1
1 The Bacchanalian affair 7

The sources 7
The cult of Bacchus 8
The story 9
The whore with the heart of gold 9
The authorities are informed 11
Hispala’s story 13
The source of the romance 15
The Senate 16
The reactions 18
The Senate’s resolutions 19
Livy on the Senate’s conduct 22
After-shocks 23
Foreign cults 25
Whose plot? 27
2 Cicero, murder and the courts 30

The system of the standing jury-courts 31
The quaestio perpetua de sicariis et veneficis 33
The lack of a state prosecution service and the moral
ambivalence of prosecution 34
The Social War and Sulla’s dictatorship 36
The proscriptions 37
pro Roscio Amerino: the case 40
The narrative 42
Parricide and its penalty 44
Cicero’s speech 47
Cicero’s counter-charge 51
v
CONTENTS
The slaves of Roscius 53

Roscius’ estate 54
3 The trial of Cn. Calpurnius Piso in AD 20 56

The sources 56
Germanicus and Piso 57
After Germanicus’ death 60
Treason 62
Delators 63
The trial 64
Preliminaries to the trial 64
The opening of the trial 66
The prosecution 67
The defence 68
Piso’s end 69
Subsidiary trials 70
The sentences 72
The survival of the standing jury-courts 75
4 Pliny and repetundae trials before the Senate 78

The crime of res repetundae 78
The disappearance of ‘voluntary’ exile 81
The trial of Marius Priscus and his legate 82
The trial of Classicus and his companions 86
Calumny and other procedural crimes 89
Further subsidiary trials 90
The trial of Julius Bassus 91
The trial of Varenus Rufus 94
A trial before the emperor 96
The Senate and the ordo 98
5 Acta Martyrum Christianorum: the extension of torture 99

The sources 100
The background: astrologers and philosophers 101
The different stages of the criminal law concerning Christianity 102
Death and torture, and the links with social status 105
Decius, the gods and the Christians 108
Pionius 111
The lapsed 115
Valerian and the criminalization of Christianity 116
Cyprian 118
The ‘great’ persecution 120
vi
CONTENTS
The first edict, and the martyrdom of Felix 121

The later edicts 122
Agape and her companions 124
Some brief accounts: Irenaeus of Sirmium; Phileas of Thmuis;
Crispina 125
Popular pressures and the rule of law 127
6 Some trials for treason and magic in the fourth century 130
The historical background 130
Fourth-century issues 132
The sources 135
Constantius and the trials of 359 137
The prohibitions on magic under Constantine and his sons 140
Astrology as science 142
Valentinian I and the trials at Rome for magic and adultery 144
Formalities in the criminal procedure of the fourth century 147
The trials at Antioch in 371–72 149
The origins 149
Theodorus on trial 151
Dangerous writings 153
The resumption of the inquiries 154
The continued prohibition of pagan sacrifices and divination 156
7 Justinian the legislator 158

Justinian and the Corpus Iuris Civilis 158
Justinian’s own legislation in Code, Book 9 159
Justinian’s legislation on criminal matters in his Novels 164
Justinian’s Code and the Theodosian Code 168
Justinian and the jurists 174
8 Crime and punishment 179

The philosophy of punishment 180
Penalties in Republican Rome 184
The growth of the death penalty: punishment in the Empire 187
Law and general ideas of punishment 193
Summary 195
Glossary 198
Bibliography 202
Index of Sources 228
General Index 243
vii
ACKNOWLEDGEMENTS
I am a slow worker. This book has been some ten years in the making; The
Criminal Law of Ancient Rome (1995) was a foundation, without which I
could not have explored the theme more deeply. I am afraid that I cannot
remember all the people who have helped me over this period, but I can
give particular thanks to those who have commented and criticized in this
last period: John Dillon, Robert Frakes, Jan and Elizabeth Kalbheim,
Lawrence Keppie, Adele Scafuro, Catherine Steel, Peter Walsh, Alan Watson
and of course my husband, Sebastian. Particular thanks are due to Alan, il mio
padrone, who has read all the chapters in draft, sometimes more than once.
That I have not always taken his advice is probably due to my inflexible
obstinacy, but I am deeply grateful, even when I have had to disagree. I also
thank the community at the Leopold-Wenger-Institut in Munich, the
University of Glasgow for giving me sabbaticals, my students for asking
awkward questions, Jan and Elizabeth for putting up with me, and Sebastian
again and always.
viii
INTRODUCTION
This is a book about crime and punishment in ancient Rome rather than a
book about Roman criminal law. That is to say, it does not set out to be a
textbook, or to describe criminal law generally, or even to be engaged with
all aspects of the crimes described.1 Rather it sets out to show what the
Romans thought about crime, what they saw as particularly heinous and –
if possible – why. It does this by telling a number of stories, ‘famous trials’
so to speak, looking at attitudes, procedures and punishments. (Because
they are stories, I have tried to reproduce the flavour of the originals.) It
explains the technical details of the law only as far as is necessary for
understanding the issues raised in particular trials.
The stories chosen have to a large extent been dictated by the sources that
survive, literary or legislative. For one thing, if excessive hypothesising is to
be avoided, it is necessary to look for a fairly full treatment by the ancient
authors. And for another, unusually full treatment of certain episodes sug-
gests that the Romans found them particularly interesting. It does not mean
that the cases treated were typical crimes, in the sense of the daily diet of
the courts, but it does mean that the treatment was representative of Roman
attitudes. The Romans were not, apparently, given to introspection; we
must therefore deduce their attitudes from what they found worth reporting
at length.
Three chapters, chapters 1, 3 and 6, are based primarily on literary sour-
ces, historians’ descriptions. Livy gives extraordinary space to the Baccha-
nalian affair, and the truth of certain aspects of his account is confirmed by
the existence of a contemporary inscription recording the Senate’s decisions.
The same is true of Tacitus’ lengthy account of the trial of Piso and its
background, concerning which the inscription recording the official decision
of the Senate was discovered only quite recently. Ammianus seems to have
been an eye-witness to the trials of AD 371–72 at Antioch, which he
recounts at length, but we have no external control on his version, although
1
I have given a general introduction in my The Criminal Law of Ancient Rome (London and
Baltimore, 1995).
1
INTRODUCTION
for this period relevant legislation survives in the Theodosian Code. The
Acts of the Christian Martyrs, our main source in chapter 5, are rather dif-
ferent; while not court records, they purport to describe how the noble
martyrs faced their bloodthirsty judges. They are not precisely literary
sources; their viewpoint is not that of the governing classes, and the stories
of the trials had a specific purpose. In chapters 2 and 4, our information is
based on a speech of Cicero and some letters of Pliny the Younger. Both
were advocates, arguing particular cases on somebody else’s behalf. There is
no external check on their version of events; one must rely on their need for
plausibility if their speeches were to be effective. Justinian, the subject of
chapter 7, was not merely an emperor who enacted legislation of his own, in
the Code; he stamped with his authority, and so turned into statute law, the
juristic works found in the Digest, thus endorsing criminal law and crim-
inal jurisprudence drawn from a period extending over more than half a
millennium. (These successive textual layers inevitably produced incon-
sistencies, which is, interestingly, one reason why the Corpus Iuris Civilis,
and particularly the Digest, was so influential in subsequent centuries,
because its users, such as Popes and Emperors, natural lawyers and posit-
ivists, could find support for conflicting views.) Justinian’s own projection
of himself is to some extent counterbalanced by Procopius’ hostile picture in
the Secret History.
The first four chapters are focused on the city of Rome. It was on Rome
that the judicial process was centred, whatever form it might take. Chapter
4 by definition deals with events in the provinces, abuses of office by pro-
vincial governors, but the trials were in Rome and their consequences felt
there. In the legal system depicted in chapters 5 and 6, the regular judge
was the provincial governor, now commonly described simply as judge
(iudex), although his jurisdiction might be superseded by special commis-
sioners. The change is a real one, as Mommsen saw, from an enlarged city-
state ruling its provinces to an Empire in which ‘Roman’ is a conceptual
rather than a geographical term. And Justinian, of course, ruled this Roman
world from Constantinople.
Some of the questions raised, if not necessarily fully answered, include:
What was behind the apparently sudden decision to persecute the wor-
shippers of Bacchus in 186 BC? And why was the punishment so harsh? Was
the violent society described by Cicero in defence of Sextus Roscius of
Ameria simply a product of the civil wars? And why were the standard
penalties of the Republican courts so – relatively – light? It is certain that
Tiberius had real plots to face, as had Augustus before him, but how far did
he act as a tyrant, repressing the victims of a system of delation which
encouraged groundless charges? Why were links with astrology so damning,
even when the prevailing Stoic philosophy saw men’s fates as determined by
their stars? Pliny participated in some notable trials for extortion in the
provinces; what was the relationship between criminal justice for citizens
2
INTRODUCTION
and for non-citizens? Christians enter the scene. Why were they persecuted?
Were their trials subject to due process? Why do we hear so frequently that
they were punished with death? In the fourth century treason trials feature
again; why, for Christian emperors, were astrology and magic so suspect?
Why did penalties appear so arbitrary? Justinian is the great lawgiver, the
emperor who left us the Corpus Iuris Civilis. Why did he not legislate more
on criminal law? What were his views on punishment? Why is there such a stark
contrast between respect for due process and lack of respect for human rights?
Why did the Romans go so far in making a spectacle out of punishment?
The range of crimes dealt with in this book is restricted. The charges are
essentially confined to refusal to conform to the official religion – something
which had seditious aspects – murder, treason (with elements of magic), and
extortion from provincials. This is partly because we are limited to the
information provided by our sources, information which would interest
Roman readers, but it is also linked to the definition of crime. For the
Romans ‘crime’ meant actions which threatened social well-being and sta-
bility; the repression of crime aimed to protect society more than its indi-
vidual members, who were traditionally expected to be responsible for their
own safety. Indeed, as we shall see, self-help remained a valued characteristic
of the citizen, even if its exercise was put under limits.
The Romans, at least of the Republic and early Empire, perhaps later too,
preferred to deal with much that we would call petty crime, particularly
crime against individual proprietary rights, by civil process, as delict. This
was not unreasonable. In most cases of theft or assault or damage to prop-
erty, reparation – which is what a civil action provides – is likely to be the
first thing the victim wants. While it is true that thieves as a class are
unlikely to be able to make reparation, the existence at Rome of noxal
liability – the legal responsibility of a paterfamilias or slave-owner for the
delicts of his child or slave – meant that the victim would often be able to
sue someone who was able to pay up.2 While it may be politically incorrect
to say so, it seems very likely that the great majority of petty crimes at
Rome were committed by slaves. Not so much because their natural servi-
lity of character marked them out to be slaves, as many of the ancients
would have had it, but because many slaves must have been treated as non-
persons, something which leads to non-responsibility; others will have been
the first in most households to suffer in hard times. The institution of
slavery, combined with the delictual liability of owners, thus seems to have
made the chances of reparation in ancient Rome somewhat higher than in
the modern world. Moreover, where reparation was not sought, most street
crime could be dealt with summarily, by the tresviri capitales or the Urban
Prefect. These magistrates had virtually unlimited powers to deal with
(presumed) slaves or foreigners – one thinks of the negative image of asylum
2
E.g. Albanese (1967), or any Roman law textbook’s treatment of noxal liability.
3
INTRODUCTION
seekers currently put forward by the popular press – who had committed
offences on the street; they could lock them up, flog them, or execute them,
because such persons were outside the law.
The close intervention of the state in the details of its citizens’ – or
subjects’ – conduct is an invention of the nineteenth century, of post-
Industrial Revolution living; it also depends on the creation of police forces
for social control.3 Factory conditions led to Factory Acts, and later Health
and Safety Acts; education moved from being a privilege to a requirement,
hence truancy; trains, and then the car, led to traffic regulations, and so to
drunken driving.4 Taking the long view back, it is the nineteenth and
twentieth centuries that are out of step, that are novel. (As for what the ‘war
against drugs’ has done to criminalize half a population, the lesson of Pro-
hibition has not been learned.) Sir George Mackenzie in seventeenth-century
Scotland could reasonably base his treatise on the Roman model of crime –
serious offences that threatened the social order;5 in his day, a gentleman
carried a sword to protect himself against individual aggressors. Hume’s
understanding of criminal law6 at the end of the eighteenth century repre-
sented the early stages of the modern view; he saw it as aimed at protecting
the individual.
And yet, one of the most interesting points made by a recent study of the
history of criminal law in Antiquity is that at Rome there existed a general
concept of submission to the law. Not only was there not a criminal class in
any meaningful sense, although of course there were many individual
criminals, but – unlike the medieval and early modern periods – vendetta
and private warfare are absent from the social scene. It was a rougher world
than that of twentieth-century Western European countries in peacetime,
but it was not so different in expecting the procedures of the courts to settle
major disputes.7
Roman attitudes seem reasonably consistent. Religion was something that
needed to be controlled by the state. In pagan Rome the Roman gods must
be worshipped, and in due form, for the health of Rome. In the Christian
Empire the emperors were concerned to repress heretics as well as, or even
more than, pagans. Magic was real, and dangerous; it was often linked with
astrology. Astrology in its turn was linked with philosophy, Stoic philoso-
phy, which was often linked to opposition, based on Republican principles,
to imperial rule. Magic and nocturnal sacrifices were clear signs of a threat
to the commonwealth. Another recurring issue is the ambivalent status of
3
See L. Farmer, Criminal Law, Tradition and Legal Order: crime and the genius of Scots law,
1747 to the present (CUP, 1997).
4
See O.F. Robinson, T.D. Fergus and W.M. Gordon, European Legal History (2000, 3rd edn,
Butterworth/OUP), ch. 17: ‘New trends in law’.
5
G. Mackenzie, The Laws and Customs of Scotland in Matters Criminal (Edinburgh, 1678).
6
D. Hume, Commentaries on the Law of Scotland respecting Crimes (Edinburgh, 1797).
7
Krause (2004), 203–5.
4
INTRODUCTION
informers. In the absence of a public prosecution service, delation was

recognized as a necessary civic duty, but it was not admirable and its
rewards were tainted, as will be apparent in almost every chapter. The force
of popular opinion was important. It came from a smaller segment of the
population than nowadays, where there is access to TV, easy-to-read news-
papers and the internet, but still it was created by more than just the
makers and shakers of Roman society. There was a general lack of respect for
human life, human suffering, human rights – as is obvious from the insti-
tution of slavery – that was combined, rather oddly to our eyes, with a
strong feeling for the dignity of the upper ranks of society. Due process was
important, but perhaps more from the perspective of noblesse oblige than the
upholding of rights. There was widespread acceptance of harsh punish-
ments, at least for the offender who, the upper ranks felt was not ‘one of us’.
Privileges originally linked simply to citizenship became, as the population
of the Roman Empire increased, restricted to those of some superior status;
at the lowest level of these honestiores were the honourably discharged veterans
of the legions, and town councillors (known as decurions or curiales). In turn
those privileges became eroded, both by the greater use of physical punish-
ment and by the lessening of respect for status. The spread to the upper
classes of the use of torture was slower than the spread of the death penalty,
for torture must humiliate, but spread it did.
One problem we face is that attitudes in the ancient world cannot be
quantified. At best, they can be identified as simply conventional or as rea-
listic. Our sources are too limited, too partial, for any objective, statistically
valid, recognition of attitudes. Perhaps, however, this is a positive feature.
We have snapshots of attitudes to specific events, and these come from dif-
ferent sources with different perspectives, from different times and different
places. By definition, our recorded cases are unusual in themselves; other-
wise they would not have been recorded. But this may be strictly a legal,
not a social, problem; it means that we cannot tell how the normal crime
was prosecuted, how the normal trial was run, and the normal crime pun-
ished. Because, however, our chosen trials aroused such interest, they do, or
should, give some answers to questions about attitudes, about policy. They
do not paint a uniform picture, but they are striking because they represent
something of great importance to their recorders. So if the same themes
recur, this may be due not to bias in our sources but rather to the continuity
of attitudes. Ambiguity remains because attitudes are perceptions of what is
significant, of what is criminal, of what society must abhor. The attitudes of
the upper ranks explain policy, insofar as there was policy and not simply
reaction. Popular opinion, whether in the shape of the ‘crowd’,8 or the curial
class, played a part, but the populace, whatever one means by the term, was
not in a position directly to reform the law. Our source material limits our
8
Millar (1998).
5
INTRODUCTION
technical understanding, which in turn limits our understanding of what

Romans themselves thought was happening and what ought to be happening.
But even if we cannot achieve much more than to perceive some facts and
some interpretations through a swirling mist, this is an exciting challenge.
This book thus provides six glimpses of Roman crimes as seen through
the eyes of the Romans themselves, and then a legislator’s view. The final
chapter attempts to analyse Roman society’s attitudes to crime and to pun-
ishment, and to understand the gap between criminological theory and
penal practice. Crime, now as then, is a topic on the margins of various
disciplines, giving rise to legal, social and political concerns. For me, as a
Roman lawyer, the legal aspect predominates, but all aspects are fascinating
for the historian.
6
Chapter 1
THE BACCHANALIAN AFFAIR
Our first case is hardly a matter of criminal law in the strict sense. It is
legally interesting because it provided, or was made to provide, a model for
some future developments, but it is doubtful if there was any pre-existing
legal justification for the actions taken. On the other hand, the episode does
undoubtedly reveal Roman attitudes – as much, perhaps, those of the end of
the Republic as of the early second century BC – to crime and punishment.
We are given by Livy an extraordinarily detailed story, told in highly
coloured language, designed to produce reactions of shock, horror, and
prurience, and at the same time to show the Senate as the guardian of the
Roman people.
The sources
In 186 BC there occurred one of the most bizarre events in the domestic
history of Rome. The cult of Dionysus or Bacchus was found to be a public
danger, and was vigorously suppressed, not only in Rome but also
throughout Italy. Interestingly, the name Liber does not appear in Livy’s
account, but Liber, a traditional Roman god, had long been identified with
Dionysus, and his rites, together with those of his sister Libera, had been
celebrated, particularly with theatrical performances – ludi scaenici – prob-
ably since the fifth century BC. The Liberalia, largely a plebeian cult, came
immediately after the Ides of March, the day when Republican magistrates
entered office, and the festival carried a symbolic reference to the freedom
that followed the end of the Monarchy, the regifugium, celebrated at the end
of February. ‘If the Bacchic cult was to be distinguished from the traditional
worship of Liber, some creative reinterpretation was going to be necessary.’1
Our knowledge of the affair comes from a contemporary inscription
recording the substance of the Senate’s resolutions, found in southern Italy,
1
Wiseman (1998), 41ff. Tertullian, ap. 6.9–10 (cf. almost identical nat.deorum 1.10.16),
whose sources may well have been wider than ours, remarked: ‘Liberum patrem cum
mysteriis suis consules senatus auctoritate non modo urbe sed universa Italia eliminaverunt.’
7
T H E B A C C H A N A L I A N A F FA I R
at Tiriolo near Bruttium,2 and from the extraordinarily lengthy account of

Livy.3 While we cannot be sure that these two testimonies are completely
independent, Livy does not directly quote the senatusconsulta, and so it seems
quite likely that he had only heard of them in his sources, not actually seen
them. We shall turn first to Livy’s account.
The cult of Bacchus

Rumours of some sort were clearly already afoot at the time of the elections
for 186, for the new consuls, Spurius Postumius Albinus and Quintus
Marcius Philippus, were not assigned to the troublesome and as yet unpa-
cified region of Liguria, as in the previous year, but were both appointed to
the investigation of secret conspiracies.4 Livy then gives a background of
sorts.5
It began with the arrival in Etruria of an obscure Greek, a petty

priest and fortune-teller, not the master of any of those many arts
which that most educated people has brought us for the cultivation
of our minds and bodies; nor was he someone who, while he might
mislead men’s minds, would do so by openly teaching his creed and
setting out publicly its benefits and doctrines, but rather the cele-
brant of secret nocturnal rites.
No date is given, but the familiarity with the cult of Bacchus that Plautus
assumes in his audiences,6 and the archaeological evidence of the Dionysiac
rites, including many vases,7 suggest that this refers to a time around the
middle of the third century, and certainly some decades before our story.
Livy then moves to what seems to have been the popular perception of
these rites.8
2
CIL X 104; ILS 18; FIRA i, no.30.
3
Livy 39.8–19, and some further mentions of the affair.
4
‘Consulibus ambobus quaestio de clandestinis coniurationibus decreta est’ (Livy 39.8.3).
Arcellaschi (1990), 38, dates the first stirrings of a scandal to 190 BC; he also, at p. 41,
stresses that the cult was of Liber Pater. Bauman (1990), 338, wonders whether dealing
with this problem had been a campaign promise by Postumius and Philippus. Freyburger-
Galland (1986), 205, thinks that the production, perhaps in 188, of Plautus’ Bacchides may
have helped provoke the affair.
5
Livy 39.8.3–4.
6
E.g. Plautus, Amph. 702ff; Aul. 406–13; Bacch. 52ff; 368ff; Men. 828–41. The stereotype
portrait of the Bacchants was hardly favourable, which makes Toynbee (1965), 391f,
wonder if popular opinion was turning against them; even, at p. 393, that they may have
been seen by the majority of citizens as a nuisance, as some see Carnival or Fasching.
7
Bruhl (1953), 58–69; 70–81 describes Etruscan links; Gruen (1990) 50; Pailler (1988), 3ff
on the Bolsena excavations.
8
Livy 39.8.5–6.
8
There were initiations, at first communicated to only a few, but

which then began to be made widely available to both men and
women. In order to entice the minds of as many as possible, reli-
gion was laced with the pleasures of wine and feasting. When once
wine had fired their minds, and darkness and the intermingling of
men with women, and of the young with their elders, had extin-
guished all feelings of shame, then all kinds of depravity began to
make their first appearance, since everyone had ready to hand the
pleasure suited to gratifying the most susceptible side of his or her
nature.
Certainly this is roughly what the world at large believed of the Bacchantes
and their cult of frenzy. But the Graeco-Roman world tolerated such cults,9
even as they tut-tutted.
However, Livy then leads us into stranger territory, bearing little relation
to the cult itself.
Promiscuous sex involving freeborn men and women was not the
only kind of mischief. Perjured witnesses, forged seals, wills and
instruments all came from the same workshop; and from it also
came poisonings and domestic murders, so that sometimes it was
not even possible to find the bodies for burial. The believers dared
to commit many crimes by cunning, and not a few by violence.
Such violence was regularly concealed by shrieks of worship and the
din of drums and cymbals, so no sounds of protest could be heard
from those screaming at the rapes and the murders.10
Ululation and loud music were a normal part of Dionysiac worship; it seems
that Livy is seeking to blacken everything.
The story
The whore with the heart of gold
‘The infection of this evil made its way, like some contagious disease, from
Etruria into Rome.’ In fact, as we have remarked, the cult was already
widespread in Italy, and many scholars hold that it came from Campania.11
‘At first the size of the City, with its greater capacity and ability to absorb
such evils, concealed them; but eventually evidence reached the consul
Postumius in much the following way.’12 And now we get the story of the
9
See Burkert (1987), 8–10, 112–13, on initiation generally.
10
Livy 39.8.7–8.
11
E.g. Frank (1927).
12
Livy 39.9.1.
9
innocent young man and the (older) whore with the heart of gold. Publius
Aebutius, whose father had received his horse at public expense,13 had been
orphaned while he was still under puberty. Subsequently, on the death of his
tutors, he had been brought up under the guardianship14 of his mother,
Duronia, and of his stepfather, Titus Sempronius Rutilius. His mother was
besotted with her husband, and the stepfather had so mismanaged the
‘guardianship’ that he could not produce his accounts for it, and thus
desired that his pupil either be done away with or be bound to him by some
kind of unbreakable tie. The Bacchanalian rites offered one way of corrupt-
ing him. Aebutius’ mother summoned the young man and told him that,
when he was ill, she had made a vow on his behalf that she would initiate
him into the Bacchic cult as soon as he had regained his health, and this
oath must now be discharged. He must abstain from sexual relations for ten
days, and on the tenth day he would be ritually purified, and be led by her
into the shrine.15
Now, Livy goes on, there was a well-known prostitute, Faecenia Hispala,
a freedwoman. She had become accustomed to the trade while she was still a
slave (though she was too good for it), and she continued to support herself
in the same way even after her manumission. Because they were neighbours
she developed an intimate friendship with Aebutius, but without doing the
slightest harm to the young man’s property or reputation; for she loved and
desired him of her own accord. Indeed, because his family were very mean
in providing for him, he was supported by the generosity of the courtesan.
The influence of their intimacy was such that, after her patron’s death, when
she was under no man’s authority, she petitioned the tribunes and praetor
for a tutor, and then made a will naming Aebutius as her sole heir. Because
they had these assurances of their love, neither of them kept any secrets
from the other, and consequently the young man told her light-heartedly
not to be surprised if he absented himself for a few nights; he was to be
initiated in the Bacchic rites for religious reasons, in discharge of a vow
made for his recovery from illness.16
Thus far the romantic background. But when Hispala heard this, she was
appalled. ‘Heaven help us!’ she said. It would be better for them both to die
rather than for him to do such a thing; and she called down curses and
vengeance on the heads of those who had urged him to do it. The young
man, astonished both by her language and by the intensity of her distress,
told her not to curse, since it was his mother who had ordered him to do it,
with the agreement of his stepfather. ‘Then your stepfather’, she said, ‘– for
13
Which meant that he was of equestrian rank, and in the upper range.
14
This must simply mean that, after he reached puberty, he continued to live with and be
looked after by his mother, and that his stepfather thus had practical control of his estate.
Women did not have the legal capacity to be guardians until the Later Empire.
15
See Livy 39.9.2–4.
16
See Livy 39.9.5–10.2.
10
it may perhaps not be right to accuse your mother – is working to ruin your
honour, your reputation, your hopes, and your life itself.’ He was still more
amazed by this and asked her what was the matter. She begged the gods and
goddesses for peace and pardon if, impelled by her love for him, she told
him things that should remain unspoken. Then she said that when she was
a slave she had accompanied her mistress to the Bacchic shrine, but had
never visited it since becoming free. She knew that it was the source of
every kind of debauchery; and it was well known that for the past two years
no-one had been initiated there who was over the age of twenty. As each
person was introduced, he or she was handed over to the priests like a
sacrificial victim; they were led away to a place which was filled with wail-
ings, blasts of musical instruments, and the throbbing of cymbals and
drums in order that the screams of anyone being forcibly raped (cum per vim
stuprum inferatur) could not be heard. She therefore besought him to frus-
trate the plan in any way he could, and not to plunge himself into a situa-
tion where he would be compelled first to suffer and then to inflict all kinds
of obscene acts. And she did not let the young man go until he had pro-
mised that he would refrain from the mysteries.17 One must have doubts
about how up to date her information really was, as her attendance (and that
only as her mistress’ maid) was explicitly some time before.
After Aebutius had returned home, his mother began to talk of what was
going to happen so far as the rites were concerned. He said that he was not
going to do any of those things, and that he did not intend to be initiated.
While he was speaking, his stepfather came in and his mother immediately
exclaimed that Aebutius was unable to sleep apart from Hispala even for ten
nights; that he was so steeped in the allurements and poisons of that she-
viper as to have lost all reverence for his parent, his stepfather and the gods.
His mother poured abuse on him from one side, his stepfather from the
other, and they drove him with his four slaves out of the house.18
The authorities are informed

The family row then took a more public dimension. The young man went
to seek refuge with his aunt Aebutia, and explained why he had been
thrown out by his mother. On her advice, he reported the matter next day
to the consul Postumius,19 with no witnesses present. The consul sent him
17
See Livy 39.10.2–9.
18
See Livy 39.11.1–2.
19
We hear that it was an earlier Postumius, the dictator successful at the battle of Lake
Regillus, whose master of horse was T. Aebutius (Livy 2.19.3), who had vowed a temple
to Ceres, Liber and Libera – Hellenized into the Greek gods Demeter, Dionysus and
Persephone – (Dion. Hal. 6.17.2), which was consecrated three years later in 493 BC
(Dion. Hal. 6.94.3). Bruhl (1953), 31f, describes this as the only official recognition of
Dionysus; he also doubts the traditional dating, and thinks the temple was probably of
the late fifth century.
11
away with orders to return in two days’ time, and then asked his mother-in-
law, Sulpicia, a very respectable woman, whether she knew an old lady from
the Aventine named Aebutia. When she replied that she knew her to be a
virtuous woman of old-fashioned morals, the consul said that he must have
a meeting with her; Sulpicia was therefore to send a messenger to Aebutia
requesting her to call. Aebutia came promptly; after a short while, the
consul, acting as if he had come in by chance, raised the subject of her
brother’s son Aebutius. Tears came to the woman’s eyes, and she began to
lament what had happened to the young man, who was at present staying
with her; he had been robbed of his fortune by those who should least of all
have done so, and been thrown out by his mother because, being a virtuous
youth, he had refused to be initiated into what – if the gods would excuse
her for saying so – were rumoured to be disgusting rites.20
The consul, thinking that Aebutius sounded a reliable source of infor-
mation, sent Aebutia away, and next asked his mother-in-law to summon to
her house the freedwoman Hispala, who also came from the Aventine and
was well known in the neighbourhood; she too was someone whom he
wished to interrogate. Hispala was alarmed at being summoned to the home
of so noble and important a lady without knowing the reason; but then,
when she saw the lictors in the anteroom, the consul’s companions and the
consul himself, she nearly fainted. She was conducted into the interior of
the house where the consul, inviting his mother-in-law to be present, told
her that she had no cause for alarm provided that she could bring herself to
speak the truth. She should trust either Sulpicia, a woman of high standing,
or himself; but she was to give him an account of what was customarily
done by the Bacchanalians during their nocturnal rites in the grove of Sti-
mula (or Semele, mother of Bacchus). When Hispala heard this, she was
seized with such fear and trembling that for a long time she could not even
open her mouth. Finally she pulled herself together and said that she had
been initiated as a slave-girl, along with her mistress, when she was still
very young; but from the time she was manumitted a number of years ago
she had known nothing of what went on there. The consul praised her for
not denying that she had herself been initiated, but ordered her to give
similarly truthful answers to his other questions. When she denied knowing
anything more, he said that if her guilt was proved by the evidence of
someone else she would not receive the same pardon or consideration as if
she confessed of her own accord; and he added, misleadingly, that the man
who had heard the story from her had already given him a full account of
it.21 Hispala, having no doubt that this must refer to Aebutius (which was
true), fell at Sulpicia’s feet and began to beg her not to let a freedwoman’s
conversation with her lover be turned into something so serious, involving a
20
See Livy 39.11.3–7.
21
See Livy 39.12.1–8.
12
capital crime.22 The things which she had said to him had been to frighten
him, not because she really knew anything. At this, Postumius flew into a
rage, or appeared to – he had already showed himself a skilled interrogator.
Did she still think that she was joking with her lover, rather than talking to
the consul in the home of a most important lady? Sulpicia helped the
frightened woman to her feet, spoke encouraging words to her and soothed
the anger of her son-in-law. When at last Hispala had pulled herself toge-
ther, after fiercely condemning the treachery of Aebutius who had thus
repaid her after all she had done for him, she said that her fear of the gods,
whose secret initiations she would be revealing, was great, but she was even
more afraid of the human beings who might tear her apart as an informer.
She therefore begged both Sulpicia and the consul to send her somewhere
away from Italy, where she could spend the rest of her life in safety. The
consul told her to keep her spirits up; he personally would ensure that she
could safely live in Rome. At this, Hispala revealed how the rites had
begun.23 Again, one must ask what credence should be given to her
account; what did she know, and what did she perhaps believe. As North
has remarked,24 ‘had the Roman authorities no better method of finding out
how many people attended the meetings of a group they knew to be meet-
ing regularly on the Aventine than to ask a freedwoman of dubious char-
acter?’ Some of what follows will certainly have been public knowledge.
Hispala’s story
At first, Hispala recounted, the place of worship had been reserved for
women and it was not the custom for any man to be admitted to it. There
were three fixed days a year on which initiations in the Bacchic rites took
place, in the daytime, and it was customary for the priesthood to be held by
a succession of married women. However, Paculla Annia from Campania,
when she held the priesthood, had changed everything, supposedly at the
behest of the gods. She had been the first to initiate men – her sons Minius
and Herennius Cerrinius – and she had converted the daytime ritual into
one at night.25 She also increased the initiation-days from three a year to
five a month.26 From the time that the rites were held in common, men
22
‘sermonem in rem non seriam modo sed capitalem etiam verti’. Perhaps nocturnal meet-
ings were of themselves capital offences, as Mantovani (1989), 19–21, thinks, but the
point is not made elsewhere in the story.
23
See Livy 39.13.1–7.
24
North (1979), 88.
25
These claims of novelty seem untrue, at least for the cult’s practice in Etruria, according
to Livy himself (39.8.3–5); it may perhaps have been innovatory at Rome. Cf. Euripides,
Bacch. 469 and 485–6, but he of course referred to Thebes and Greece generally. And
surely it was always a cult with nocturnal meetings.
26
Bauman (1990), 338, considers it probable that these changes had been made two years
before the scandal broke, along with the imposition of an age-limit of twenty for initiations.
13
mingling with women, and with the freedom of the darkness as well, there
was no kind of crime or wrongdoing that they did not commit. The men
raped men more than women; any who were less willing to suffer this abuse
and less active in wickedness were sacrificed as victims – it is very curious,
this obsession with rape.27 The highest principle of their religion was to
regard nothing as forbidden. The men, as if their minds were possessed,
would convulse their bodies and utter prophecies; the married women,
dressed as Bacchants with their hair dishevelled, would rush down to the
Tiber carrying blazing torches which they would plunge into the river, then
carry them away with their flames still burning, because they contained live
sulphur mixed with lime. Some men, who refused to take part in the con-
spiracy, or to be associated with the crimes or to suffer rape, were said to be
‘carried off by the gods’; they were bound to a machine and whisked out of
sight into hidden caves. (This could well be a ritual death and rebirth.28) So
far the description of Bacchic worship seems dramatized but not unrelated
to the facts as generally understood.29 But she went on to say that the
number involved was very large, almost amounting to an alternative state,
and included some men and women from noble families.30 If Hispala had
not been attending the rites, this must have been mere rumour, and the
notion of an alternative state is ridiculous. Within the last two years they
had adopted a rule that no one above the age of twenty should be initiated,
since they were trying to catch those whose age made them susceptible to
error and to corruption.31 But, as Gruen has pointed out,32 this age-limit tends
to the consolidation of the numbers of initiates rather than their expansion.
He also points out that Hispala had only attended the mysteries with her
owner; it was a cult for the respectable rather than the outcasts of society,
and the young men initiated were clearly citizens, at least for the most part.
What would such persons have to gain by overthrowing the res publica?
27
Is rape, the use of force, the excuse for enjoyment?
28
Walsh (1994), 5. Pausanias gives an analogous account, 9.39.5–14, of his initiation at the
oracle of Trophonios in Boeotia.
29
The blazing torches which survived immersion in water would have been, as Livy in fact
described them, previously treated with sulphur and calcium sulphate.
30
Bauman (1990), 341, points out that Livy elsewhere describes the initiates as including
not only Aebutius’ mother, Duronia, but also her second husband (the wicked stepfather)
Titus Sempronius Rutilius; Bauman links him with a certain Caius Sempronius Rutilius
who was tribune in 189 but whose career went no further (he could have died?). Bauman
also points out that Marcus and Gaius Atinius, later described as among the leaders of the
fellowship, were from a prominent plebeian family, several of whom held the praetorship
at the beginning of the second century, and who, furthermore, were linked to the Sem-
pronii. But see Walsh (1996), 186.
31
See Livy 39.13.8–14.
32
Gruen (1990), 53; youthful initiation was certainly normal later. Festugière (1954), 95–
96, reckons that this, like infant baptism, was designed to give the god’s protection to
the young. Burkert (1987), 52, does wonder about its significance.
14
When she had finished her evidence, Hispala prostrated herself again at
the consul’s feet and begged him, as she had before, to send her abroad.
Postumius, however, asked his mother-in-law to clear some part of her
house, so that Hispala could move in. Sulpicia made available the attic flat;
the stairs leading to the street were blocked off, and the only access was
from within the house itself. All Hispala’s belongings were immediately
brought here and her household slaves sent for, while Aebutius was ordered
to move to the house of one of the consul’s clients.33
The source of the romance

All this is given as the background to the consul’s discovery that there was
something dangerous going on, and the scene then moves to the Senate. But
this is perhaps the point to ask if the romantic story is pure fiction. It is
certainly a story typical of the New Comedy, a plot which Plautus could
have used: the innocent young man, the scheming stepparent and the weak
or wicked real parent, the prostitute with the heart of gold. Where would
Livy have taken this from? For it is virtually inconceivable that he would
have invented it. One possibility: the worship of Liber seems early to have
taken the form of a stage festival,34 and indeed there survives a line of the
famous playwright Naevius on it: ‘We speak with a free tongue at the
games of Freedom.’35 Wiseman holds that the story came to Livy ultimately
from the annalist A. Postumius Albinus, consul in 151 and relative of the
consul Sp. Postumius Albinus the protagonist. Further, he thinks that the
annalist Postumius may have recorded as fact the details of a play written,
perhaps for the games of 185, to assuage plebeian feeling after the Senate’s
high-handed conduct in suppressing what was a largely plebeian cult,36 but
Livy would not have known that his ultimate source lay in drama. Such
plays did exist; Naevius and others had written up real events into stage
performances.37 If one accepts this hypothesis, it even becomes possible that
the sinister details given by Hispala are a mockery of the alleged crimes; the
playwright, whoever he was, may have been ironic, distancing his story and
characters from reality.
33
See Livy 39.14.1–3.
34
Wiseman (1998), 39.
35
Festus, L. 103: ‘Libera lingua loquimur ludis Liberalibus.’
36
Wiseman (1998), 47–8; he also sees in Ovid, Fasti 6.485–550 a reference to a similar play
subsequent to the suppression of the Bacchanalia, 48–51. Walsh (1994), 10f, can divide
Livy’s account into a drama in four acts. See also Walsh (1996), 195ff, and, on the
annalist tradition, 192–93 and 201–02, pointing out that all the annalists feature the
concept of moral decline, a theme which Livy also stressed.
37
Wiseman (1998), 1ff; 52; Walsh (1996), 200. But these were set well back in the past,
and I think one must agree with Fantham (2000) that it was inconceivable that ‘living
Roman magistrates or matrons would be shown on the stage’; Keaveney (2003) is also
dismissive.
15
The details given of the Bacchic rites are designed to cause the maximum
shock and horror, and to evoke a lubricious reaction; they are what a hostile
audience might want to believe. After all, Livy, a historian loyally suppor-
tive of the Senate, was concerned to justify the suppression of the cult. But
most of the cultic practices, as has been pointed out recently by such as
Gruen and North,38 were almost certainly ritual, the formalized re-enact-
ment of an original dark story (to some extent comparable to the Christian
eucharist). The romance’s invention, even if Aebutius and Hispala were real
people,39 may be explained away with a reasonable degree of plausibility.
The difficulty with the story given by Livy concerns, not the sexual ele-
ments, whether true or exaggerated for prurience’s sake, but the forgeries
and the related crimes. However, Walsh has demonstrated that Livy’s
account from the meeting of the Senate onwards is historical; Livy drew on
the late annalists Valerius Antias and Claudius Quadrigarius who had had
access to the acta senatus.40 The early annalists, writing in Greek, wove a
dramatic version of the affair, and they included Postumius Albinus. The
middle annalists, writing in Latin, may have sharpened the picture of moral
decline – and Livy saw moral decline as general from the early second
century – by including conventional crimes such as murder and forgery.41
The Senate
So, the consul Postumius (whether or not he had the informers safely under
his wing) then reported the affair to the Senate, both the information he had
received and the results of his own investigations. Livy tells us that the
senators as individuals were much alarmed, both on the public account by
fear of social unrest, and also because they feared the involvement of their
own families. (This readiness to believe such a thing also suggests that the
cult was well-known.) Anyway, the Senate passed a vote of thanks to Pos-
tumius, and decreed that the consuls should undertake an extraordinary
commission to inquire into the Bacchanalians and their nocturnal rites.
They were to see that no harm came to Aebutius and Hispala, and to
encourage with rewards other informers. Priests of the cult, male and
female, were to be hunted out, not only in Rome but throughout all the
towns and districts (per omnia fora et conciliabula), and put in the consuls’
charge. Moreover, edicts were to be issued in Rome and throughout Italy
prohibiting initiates from assembling or celebrating their rites. And, above
38
Gruen (1990), 63; North (1979), 88ff. Bauman (1990) tends to credulity.
39
Which seems probable, from Livy’s recording that one of the SCC gave them rewards.
40
Walsh (1994), 8; (1996), 193–94.
41
As Gelzer (1936), 287, suggested. Firmicus Maternus, err. prof. 6.9, believed in the exis-
tence of scelera. However, St Augustine (CD 6.9) reports of Varro, who presumably had no
axe to grind: ‘ubi Varro ipse confitetur a bacchantibus talia fieri non potuisse nisi mente
commota.’
16
all, investigation was to be made into those who had come together or
conspired to commit sexual or other crimes.42 This was truly a quaestio
extraordinaria, an extraordinary and unprecedented act by the Senate,
assuming jurisdiction not only in Rome and its territory but also through-
out Italy. (There had indeed been a quaestio extraordinaria in the previous
year, the trial of L. Cornelius Scipio Asiaticus,43 presided over by a praetor
appointed to this office by the Senate but this, nevertheless, rested on a lex
passed by the people,44 and it did not extend beyond Roman territory.)
The consuls then ordered the curule aediles to hunt out all the priests of
the cult and hold them under house arrest, ready for interrogation; the
plebeian aediles were to prevent any secret celebrations. The tresviri capitales
were commanded to place guards throughout the City to make sure there
were no night meetings, and to prevent fires;45 the quinqueviri uls cis
Tiberim,46 their assistants, were to guard buildings – temples, perhaps – in
their respective districts.47 This can only have inflamed the situation; what
real threat can have been envisaged? Having given these orders, the consuls
then summoned the populace to a contio, an informal assembly, and the
consul (Postumius it must be, although his name is not given) addressed
them. In this highly emotive speech he accepted that the Bacchic cult was
well known to exist in the City48 as well as, over a long period, in Italy, but
he sought to arouse their fears by stressing the numbers, the many thou-
sands, of initiates, although he then went on to alleviate these fears some-
what by pointing out that the majority were women – the source of this
mischief (primum igitur mulierum magna pars est, et is fons mali huiusce fuit) –
and that most of the men were effeminate, debauched, fanatical, stupefied.
But the numbers were potentially dangerous, as were all unofficial gather-
ings, gatherings unsupervised by lawful authority, and when these gather-
ings were nocturnal, and attended by women as well as men . . . Youths
initiated into the cult were not fit to bear arms, to fight for the chastity of
Roman wives and children. Yet effeminacy dishonoured only individuals,
whereas whatsoever evil had been done in recent years from lust, or fraud, or
42
‘qui coierint coniuraverintve quo stuprum flagitiumve inferretur.’ (Livy 39.14.3–8). Bruhl
(1953), 116, points out that the term coniuratio was literally accurate; the Bacchantes took
oaths together, as was forbidden by the SC.
43
Called Asiagenes in some MSS. The sources are confused about the charges against him;
extortion seems more likely than treason, but politics undoubtedly played a part.
44
Livy 38.54–55. Bauman (1983), 199ff, argues, following Kunkel (1962), 58, that at this
period there was no difference between a quaestio created by plebiscitum and one established
by the Senate; this must be implausible. Bequignon (1941), 195, argues, also unconvin-
cingly, that the Bacchanalian investigation was founded on a lex.
45
Cf. Robinson (1977).
46
A college of very minor magistrates indeed – see Robinson (1992), 175.
47
See Livy 39.14.9–10.
48
Which ‘makes a nonsense of Livy’s earlier claim that the consuls first got wind of the
Bacchanalia through the revelations of Aebutius and Hispala’ (Walsh (1996), 195).
17
wickedness, sprang from this cult; so far there had only been crimes against
individuals, but soon the res publica itself would be at risk. Let the citizens
worry about whether their friends had been infected; when the assembly had
scattered to its homes, then the cultists might be gathering. While it was
reasonable to be wary if wrongdoings were ascribed to the will of the gods,
there had been innumerable decrees of the pontiffs, resolutions of the Senate,
opinions of the augurs which would free people from scruple about turning
against this cult. How often, in days of old, had magistrates forbidden foreign
worship, banned petty priests from the Forum, and burned their prophetic
books, for men most learned in all human and divine law were accustomed
to hold that nothing was so destructive of true service to the gods as where
sacrifices were performed not by native but by foreign ritual. The people
were therefore not to fear the anger of the gods, the true gods of Rome, when
they saw measures being taken against the followers of Bacchus. The Senate
had entrusted the investigation of the affair to the consuls, and the consuls would
crush the cult, while the lesser magistrates would prevent night assemblies.
Individual citizens would do their duty by obeying lawful orders.49
The whole speech suggests that the res publica is in danger, that there is
conspiracy, but Postumius carefully avoids any actual mention of sedition, still
less treason; it is feared for the future, but has not yet occurred. This lim-
itation is confirmed by Cicero’s reference to the affair.50 It has indeed been
suggested that the legal basis for the Senate’s action rested simply on the
decemviral prohibition of nocturnal gatherings.51 Before the assembly was
dismissed, the decree of the Senate establishing the quaestio extraordinaria
was read, rewards were offered for information, help to would-be fugitives was
forbidden, and those who failed to respond to a summons, unless for good
cause, were warned that they would be condemned in their absence.52 This
last was rather different from the situation in developed Roman criminal law.
The reactions
There followed panic throughout the City, and this spread, as fast as letters
could be sent, throughout Italy. This panic is less surprising when one remembers
how very traditional was the worship of Liber, and the importance, particularly
to the plebeians, of the festival of the Liberalia and its theatrical games.53
49
See Livy 39.15.1–14.
50
Cicero, leg. 2.15.37. After approving mystery religions for his ideal state, but not when
performed by women at night (leg. 2.14.35), he went on to stress that female reputations
must be guarded even during the day, and that the mysteries of Ceres must be firmly
traditional, as declared by the severity of the ancient decree of the Senate on the Baccha-
nals. Cicero, it is generally reckoned, drew on different annalists from Livy.
51
‘ne qui in urbe coetus nocturnos agitaret’ (XII T 8.26); see Mantovani (1989), 19–21.
52
See Livy 39.16.1–13; 39.17.1–3.
53
On theatrical performances as normative ‘games’, see Robinson (1992), 160–2.
18
The panic was presumably felt more strongly by the followers of the new form
of the cult; it is not clear if the more than 7,000 persons affected, as
reported by Livy, all fell into this category. Many people attempted to flee,
but many were arrested by the guards the tresviri had placed on the gates.
Some people, both men and women, committed suicide after being reported as
initiates. The ringleaders, Marcus and Gaius Atinius of the Roman plebeians –
new characters – and the Faliscan Lucius Opicernius with the Campanian
Minius Cerrinius were all arrested. Hispala’s story had named as the leaders
Minius and Herennius Cerrinius, together with their mother, Paculla Annia,
but clearly that information was out of date.54 However, so many people had
escaped that the praetors, urban and peregrine, acting on the authority of
the Senate, declared a iustitium, the adjournment of all court business for
thirty days; this strongly suggests that significant numbers of the senatorial
and equestrian classes were among those missing. So many had fled, and so
few were responding to the summons to report themselves, that the consuls
went on circuit around Italy to make investigations and to conduct trials.55
This was an outrageous usurpation of authority, since at this period Rome
had no rights over the other Italian cities, who were in theory her free allies.
The consuls destroyed all Bacchanalian sites of worship, unless there was
an ancient altar or consecrated image.56 The Senate decreed that for the
future there should be no Bacchanalia in Rome or Italy.
Anyone who considered such a rite to be traditional and necessary,

and one which he could not forgo without having to atone for a
breach of religious duty, must report this to the Urban Praetor who
in turn was to refer the matter to the Senate. If, with not less than
one hundred senators present, permission was granted, such a
person might carry out the rites, but with no more than five per-
sons taking part in the sacrifice, and there was to be no common
fund, and nobody was to be master of the rites or priest.57
The Senate’s resolutions

For this we have confirmation from the Bruttium inscription.58 In relation
to the issue of the Senate’s jurisdiction, Toynbee discusses the status of the
54
See Livy 39.17.4–7.
55
See Livy 39.18.1–2: ‘circa fora profisci ibique quaerere et iudicia exercere’.
56
Livy 39.18.3–7.
57
Livy 39.18.8–9. On this point of the necessity of following one’s traditional religious
duties, one could compare the Romans’ reluctant toleration of Judaism (except of course
when there was armed revolt).
58
CIL X 104; ILS 18. The translation here is based on that of Walsh (1994). It has been
pointed out by Accame (1938), 223, that Livy, following the annalists, is probably closer
to the originals than is this inscription.
19
territory where this particular inscription was found, the ager Teuranus. It,
like various other territories, might have been annexed to the ager Romanus
after the end of the Hannibalic War; on the other hand we know that Tar-
entum was not so annexed, and Bacchanalians were pursued there in 184 BC
and after.59 Although it is normally referred to as the SC de Bacchanalibus,
it is widely agreed that what we have here is not one senatusconsult but
a conflation of a number of senatorial resolutions, issued in the form of a
letter by the consuls to the local authorities.60
In translation the inscription reads:
The consuls Quintus Marcius, son of Lucius, and Spurius Postumus,

son of Lucius, consulted the Senate on the seventh day of October
in the temple of Bellona. The recording officers were Marcus Clau-
dius, son of Marcus, Lucius Valerius, son of Publius, and Quintus
Minucius, son of Gaius.
Concerning the Bacchanalia they resolved that this edict be
issued to allies bound by treaty.61 ‘Let none of them be minded to
conduct a Bacchic rite. If there are some who say it is necessary for
them to hold such a rite, they must come to the Urban Praetor at
Rome and, when their statement has been heard, our Senate is to
decide such matters, provided that no fewer than 100 senators are
present when the matter is discussed. Let no person, whether
Roman citizen, or one of Latin status, or one of the allies, be
minded to attend Bacchic rites without approaching the Urban
Praetor, and without his authorisation in compliance with the
decision of the Senate, provided that no fewer than 100 senators are
present when the matter is discussed.’ Resolved.
‘No man shall be a priest; no man or woman shall be master of
ceremonies; none among them shall be minded to administer a
common fund. Nor shall they be minded to appoint any man or
woman a master or vice-master of ceremonies. Nor shall they be
minded henceforward to conspire, make vows together, or make
guarantees or promises; nor be minded to pledge their faith with
one another. No-one must be minded to celebrate rites in secret;
59
Toynbee (1965), 120 n. 6; 397 n. 2. On balance, it seems not erected on Roman territory.
60
See particularly Fraenkel (1932), Gelzer (1936), Martina (1998), Albanese (2001). Fraen-
kel held that there had been a degree of editing by the receiving magistrate, denied by
Keil (1933) and Gelzer. Albanese even suggests, not very convincingly, that we have only
the second tablet from a longer edict, and that the first part dealt with the physical
objects used in the Bacchic cult.
61
Albanese (2001), 7ff, translates foederati differently: ‘that this edict be issued to those
sworn to the Bacchanalian cult’, pointing out that the prohibitions are addressed to
individuals not communities; this is also the view of Toynbee (1965), 400.
20
nor let anyone be minded to celebrate them publicly, privately, or

outside the City, without approaching the Urban Praetor and
without his authorisation in compliance with the decision of the
Senate, provided that no fewer than 100 senators are present when
the matter is discussed.’ Resolved.
‘Let nobody be minded to celebrate rites in numbers greater than
five in all, men and women; more than two men and more than
three women must not attend there, unless by the decision of the
Urban Praetor and of the Senate, as has been written above.’
Resolved.
You [the socii] must proclaim these measures in your assembly at
least by the third market-day, and so that you may be aware of the
decision of the Senate, it was as follows: ‘If there are any persons
who in this matter act otherwise than has been written above, the
senators have resolved that a capital charge must be laid against
them.’ And the Senate resolved that it be right that you engrave
this proclamation on a bronze tablet, and bid it to be nailed up
where it can most easily be read; and you are to ensure that any
Bacchic object, other than what is sacred there, should be dis-
mantled, as has been written above, within ten days of the tablets
being given to you. (In the territory of the Teurani.)
There are certain oddities about these decisions. One is the limitation on
the number of women present to three; why should there not be five
women? Traditionally it was a female cult. This may have been to stress
that the celebration of the cult must be a matter of religious necessity, not
the excuse for a sodalitas, or even the equivalent of a sociable Mothers’
Union meeting. Then, the capital nature of non-compliance is presented
almost as a parenthesis.62 Yet the death penalty seems summary and of an
unlimited nature, covering future as well as past deeds – a huge arrogation
of power. Nor is there any mention of conventional crimes, flagitia, in the
inscription, but they might have been subject to appeal (provocatio), and
therefore ignored in a consular edict, that is, if they ever existed. Hardly an
oddity, but an ambiguity, is the question of whether the consular letter is to
be proclaimed within three weeks, or over a period of three weeks.
The cult was to be repressed, but not annihilated. North remarks that it
seems re-established by the middle of the second century BC, for its followers,
along with others, were expelled from Rome in 139.63 Archaeological
62
Strachan-Davidson (1912), I 232f, thinks that this was the original SC at the start of the
affair.
63
North (1979), citing Valerius Maximus 1.3.3.
21
evidence confirms that the cult was widely familiar in Rome of the first
century BC; Bruhl refers to the evidence from many statues and paintings of
this period.64 Indeed Spartacus had a ‘wife’ who was a Bacchic priestess.65
And the cult continued under the Empire.66
Livy on the Senate’s conduct

Let us return to Livy’s account. Those who admitted to having been initi-
ated, to having joined the coniuratio, but who denied that they had com-
mitted any crimes, were left in prison,67 but those convicted – by more
than rumour? – of stuprum or murder, perjury and false witness, forged seals,
substitution of wills and other frauds, were put to death, and we are told by
Livy that this group, both men and women, formed the majority. (The
absence of provocatio was presumably because no tribune of the people was
minded to use his auxilium.68) The women were, if possible, handed over to
their families for private execution, which otherwise took place in public.69
These people, therefore, were convicted of specific crimes, not of member-
ship of the cult. Nippel, indeed, sees the affair in simple criminal terms. He
sees no sedition, no protest movement. Indeed, despite the evidence of the
SC, he sees no evidence for the suppression of a cult, but rather the
strengthening of the official cults of the nobility; the stamping of Roman-
ness on foreigners.70 However, there is no mention in the inscription, in the
resolutions of the Senate, of any flagitia, which would surely have been the
case had they been the main target.
So how credible is Livy’s story? If there really were orgiastic murders on
any wide scale, then it is not unreasonable to accept the consequent forgery
of a victim’s will in some individual cases. But to believe that this was the
policy of the cultists stretches my imagination too far. ‘The purpose is to
generate funds for the cult.’71 Bauman argues that the prohibition of a
common fund was for this end, and that the restriction to five on the
64
Bruhl (1953), 119; 145–59.
65
Plut. Vit.Crassus 8.
66
Virgil’s Bucolics, Eclogue 5, like the Villa of the Mysteries at Pompeii, shows some survival
of Bacchic worship, but Pailler (1988), 745, holds it to have been diversified and bana-
lised in the course of the centuries; see also Foucher (1981).
67
For how long is not mentioned. Presumably, sooner or later, the tribunes will have used
their auxilium for the prisoners’ release, but see Santalucia (1988) and (1999); cf. Eisenhut
(1972).
68
Bauman (1990), 338, fn. 11, rather strangely explains that Mommsen justifies the absence
of provocatio as being because the crimes were non-political, and Kunkel as because only
common law crimes were involved.
69
See Livy 39.18.4–6; Val. Max. 6.3.7.
70
Nippel (1997), 65–73; his position is closer to that of North than of Gruen.
71
Bauman (1990), 342.
22
numbers permitted to meet for worship72 was to prevent legally valid

mancipatory wills. But to make a mancipatory will one needed six adult
male citizens, the one known as the libripens and five witnesses,73 so that
argument, particularly when the five persons could be of any status or either
sex, is very weak. The Senate could not have been thinking in these terms
because, in this context, women were non-entities; not even ten women
could have made a will. The generation of funds is an explanation that fits
modern, especially American, cults, but is unconvincing for Republican
Rome, especially as there seems to have been no one centre of worship.
Other arguments supporting the reality of the flagitia are also weak. Noc-
turnal meetings were not previously unknown, and the wholesale effemi-
nisation of men of military age I find totally incredible – most young men
in my observation enjoy their virility. As to ‘the initiation of masses of
slaves who were already in a state of unrest’, it is indisputable that there was
unrest during and after the hardships of the Punic Wars, and this provides
an explanation for the insurrections in Apulia and elsewhere throughout the
180s, but Livy’s own evidence argues for relatively few slaves as initiates of
the Bacchic rites; the initiates are generally described as of good family, or
at least liable for military service. And the presence of slaves as initiates (not
in itself necessarily shocking; later collegia had slave as well as free members)
would anyway be largely irrelevant to the alleged crimes of stuprum and
forgery. Livy seems to have absorbed what had become a tradition concern-
ing the flagitia; he was, as has been remarked already, concerned to justify
the Senate’s suppression of the Bacchanals, and to deplore the moral decline
of Rome.
After-shocks
A further decree of the Senate, proposed by Marcius Philippus, postponed
the general consideration of informers until Postumius had completed his
investigations and returned to Rome. Marcius had been active in Etruria,
where the ‘Bacchic’ version of the cult had originated; Postumius was con-
cerned with suppression in southern Italy,74 where indeed he seems not to
have been totally successful. For this was not quite the end of Livy’s account
of the affair. In 184 BC Lucius Postumius, pro-praetor with Tarentum as his
province, had to deal with a conspiracy of shepherds, after a slave insurrec-
tion in Apulia, and he also wound up what was left of the Bacchanalian
investigation. Frank thought that these shepherds ‘were probably Tarentine
and Locrian slaves who were persecuted because of the worship of Dionysus’;
72
Livy 39.18.9; ILS 18, ll.19–21.
73
Gaius 2.102–8 for the technicalities of the mancipatory will.
74
Livy 39.20.1 and 39.23.1 and 3.
23
Toynbee held that ‘shepherds’ was a term of art for Bacchic initiates.75
Lucius Postumius condemned some of those brought before him as Bac-
chants, and presumably executed them; others he sent to the Senate at
Rome where the Urban Praetor, Publius Cornelius, threw them all into the
prison.76 Perhaps those held in prison were in due course released, after
tribunician intercession; but we hear nothing more. Further, there may or
may not be a connection with the fact that in 184 BC there was seen a need
to assign a praetor, Quintus Naevius Matho, to investigate cases of poison-
ing, as well as to his proper province, governing Sardinia; the poisonings
were alleged in the City as well as in the municipalities and rural districts,
and, if Valerius Antias is to be trusted, says Livy, Naevius condemned some
2,000 persons.77 In 181 BC the praetor, a certain L. Duronius, selected
for Apulia, still had Bacchanalians to pursue, seeds left over from former
troubles sprouting afresh; he was ordered to extirpate them, so that there
should be no further spread.78 It is possible that there was also a Baccha-
nalian connection to the poisoning inquiries assigned by the Senate to
separate praetors for within and outside the City in 180 BC.79 Or it may be
that these alleged poisonings were not so much connected with the cult
itself as linked to the fraudulent wills and other forgeries described. It was
clearly an uneasy time.
The Senate also decided that Minius Cerrinius, as a Campanian, should be
sent in chains to Ardea, whose magistrates were to keep him under close
guard, against suicide as well as escape.80 What eventually happened to him
is not recorded, but this suggests strongly that he had not yet been con-
victed of anything; the Senate, indeed, was primarily concerned with the
behaviour of Romans. After Postumius’ return Aebutius and Hispala were
given financial rewards by senatorial decree: 100,000 asses each, sufficient to
be rated in the first census class, to be given them from the aerarium by the
quaestors. The consul would negotiate with the tribunes that they propose
to the people that Aebutius be treated as though he had completed his
military service, so that he would not have to serve, and the censor would
not assign him a public horse; this reward was almost certainly barbed.81
75
Frank (1927), 130; Toynbee (1965), 321, citing Wuilleumier (1939). The connection is
accepted by many authors, e.g. Dumézil (1966), and Bauman (1990), but others, such as
Gruen (1990), think the linked tasks mere coincidence.
76
Livy 39.29.8; 39.41.6–7.
77
Livy 39.38.3; 39.41.5–6.
78
Livy 40.19.9–10. Presumably this praetor was some kind of kin to Aebutius’ mother.
79
Livy 40.37.4–7, and 40.43.2–3; also 40.44.6 of 179 BC.
80
Livy 39.19.2.
81
The Senate was prepared to give him the money, but did not actually want him to do his
military service and become eligible for a political career; he was tainted by having been
an informer. See Watson (2005).
24
Hispala was granted the right to alienate her property, presumably even
against her tutor’s wishes, to marry outside the gens or clan, to choose a
tutor, just as though these had been granted by a husband in his will; also,
explicitly, she could marry someone freeborn.82 It is not entirely clear what
the details mean, but she seems to be being put in the position of someone
freeborn and sui iuris; further, she was to be under the protection of the
consuls and praetors for her lifetime.83 The people approved all these mea-
sures; questions of immunity or reward for other informers were left to the
consuls.84 The basic suppression of the cult was on the authority of the
Senate alone. These grants do not seem to be anachronistic, but this merely
confirms that the romance, if it is a fiction, was constructed close to the
time it describes.
Foreign cults
The factual basis of Livy’s account – we have already considered the
romantic story element – is confirmed by the objective evidence of the
inscription giving the substance of the texts of the SCC. We can be certain
that the Bacchanalian cult was suppressed in 186 BC, and that only carefully
limited exemptions from the ban on the cult were permitted, although to
traditional worshippers of Liber these must have seemed extremely oppres-
sive. The Romans (like most polytheists) were generally tolerant of people’s
private worship and, for the most part, of other public worship. They
needed, for the health of their society, the Roman gods to be worshipped in
the traditional way in the temples of Rome, but were generally indifferent
to other religious practice.85 Yet, as we have seen, Livy records the consul as
saying:
How often in the times of our fathers and grandfathers was the task
assigned to the magistrates of forbidding the introduction of
82
When Hispala was manumitted, her mistress, being a woman, although she could have
had full ownership of a slave, could not have been the tutor of her freedwoman; further,
all women outside paternal power (patria potestas) needed, at this period, a tutor to
supervise quite a wide range of transactions, including the alienation of property classified
as res mancipi. A tutor must have been appointed for her at manumission; we do not know
why she later found herself without one. The right to marry a freeborn man seems likely
to be aimed at Aebutius; at this period it was socially disapproved of but not illegal for
an upper-class man to marry a freedwoman, but then Hispala was not a respectable
woman of freed status, but an ex-prostitute.
83
The meaning of this grant is obscure partly because it is the only use of the term enuptio
gentis; see Watson (1974). Since her social status was low, it is less likely that her reward
was double-edged.
84
Livy 39.19.3–7.
85
Robinson (1992), 199, 201. See, however, ch. 5.
25
foreign cults, of excluding petty priests and fortune-tellers from the

Forum, the Circus and the City, of searching out and burning books
of prophecies, and of stamping out every method of sacrifice except
that performed in the Roman way.86
And indeed there were examples of such repression, both in the period
referred to and in Livy’s own time (he died in AD 17).87 The burning of the
Pythagorean Books, also known as the books of Numa, took place in 181
88
BC, clearly in the shadow of the Bacchanalian affair. Magi were expelled
from Rome and other measures taken against them as early as 213 BC,89 and
this happened again in 139 BC.90 In 154 BC, or soon after, the Senate
ordered the demolition of the first stone theatre, newly constructed for the
ludi Megalenses, the ‘games’ for the Great Mother, because it posed a danger
to public morals.91 In 97 BC human sacrifice was formally banned as a
religious excess;92 this fits with Plutarch’s story that the Romans were
about to punish some barbarian tribe for human sacrifice, but when they
heard it had been ancestral custom, they remitted the punishment, although
forbidding the practice for the future.93 In Livy’s own time, there were
various attacks on the shrines of Isis at Rome.94 Augustus in 28 BC forbade
Egyptian rites within the pomerium, and in 21 BC this ban was extended to
the suburbs. Druidism was prohibited by both Augustus and Tiberius.95
But this seems pretty well the sum of suppression over approximately 150
years.
Repression, whether in the second or first century, was thus relatively
unusual. Indeed, in 212 BC, under the guidance of the Sibylline Books,
games for Apollo of Delphi, an undoubtedly Greek god, had been officially
introduced. In 204 BC an even more foreign cult was introduced, the
86
Livy 39.16.8.
87
Evans (1993) suggests that Livy modelled much of his story on the ‘correct’ view of the
Catiline affair, but this concerned sedition rather than religion; nevertheless ‘coniuratio‘
was the link.
88
Livy 40.29.2–14. Dumézil (1966), 496, links Pythagoreanism and the cult of Bacchus. As
the Loeb editors (E.T. Sage and A.C. Schlesinger), p. 91 n. 6, point out, there seems
strangely to have been no formal consultation of the pontiffs; the Senate simply relied on
the praetor’s oath as to the books’ subversive character. But then, there is no mention of
any formal consultation in 186 BC.
89
Livy 25.1.6–12. But in 213 the restrictions were limited to the City, there was no pro-
vision for active investigation, and Livy does not report on the results; furthermore, Rome
was then still seriously at war, not triumphant as in 186.
90
Val. Max. 1.3.3.
91
Livy epit. 48; Val. Max. 2.4.2.
92
Pliny, HN 30.12, but magic was involved here.
93
Plutarch, Quaestiones romanae (Moralia iv), 83.
94
See Beard (1994), 763, with sources.
95
Val. Max. 1.3.4; Tac. Ann. 2.85; Dio Cassius 53.2.4; 54.6.6; Pliny HN 30.4.13; Suet.
Claud. 25.5; Pliny HN 29.12.54.
26
bringing of the Magna Mater – she turned out to be a black stone – from
Phrygia,96 at whose games the curule aediles may have introduced the
divisive and bitterly resented segregation of senatorial seats.97 Dionysus of
Halicarnassus, in his account of the establishment of Roman religion, is
instructive on how the Senate wished to control religious practices. He first
remarks that among Roman citizens there are to be seen ‘no ecstatic transports,
no Corybantic frenzies, no begging under the colour of religion, no bac-
chanals or secret mysteries, no all-night vigils of men and women together
in the temples, nor any other mummery of this kind’.98 He then reports that
there were naturally innumerable peoples coming to Rome under the necessity
of practising the worship of their ancestral gods in their traditional ways,
yet Rome celebrates them in accordance with her own traditions,

after banishing all fabulous claptrap. The rites of Mater Magna are a
case in point, for the praetors perform sacrifices and celebrate games
in her honour every year, according to Roman customs, but the
priest and priestess of the goddess are Phrygians, and it is they who
carry her image in procession through the City, begging alms in her
name according to their custom,
and accompanied by musicians. ‘But by a law and decree of the Senate no

native Roman walks in procession through the City, arrayed in a parti-
coloured robe, begging alms or escorted by flute-players, or worships the
goddess with Phrygian ceremonies.’99 Thus was a mystery religion tamed.
Hence a religious motive for the repression of the Bacchanals is by no means
impossible, because it was not exactly a sudden and severe reversal of
previous policy, but it seems highly unlikely that it was the sole motive.
Yet, as the SC shows, this was the form, whatever the pretext, whatever
the hidden agenda, that the repression took. Further, two of those who
assisted at the drafting, Valerius Flaccus and Claudius Marcellus, were
members of the college of pontiffs; the pontifex maximus at that time was
P. Licinius Crassus Dives, consul in 205 with Scipio Africanus. He may well be
the learned lawyer referred to by Postumius; he was already a pontiff in 213 BC.
Whose plot?
It is widely agreed by most modern scholars that the affair was rigged, and
rigged by the Senate rather than individual members of it. For example, as
96
Livy 29.14.5–14. Her temple was consecrated in 191 (Livy 36.36.4).
97
Wiseman (1998), 40.
98
Dion. Hal. 2.19.2.
99
Dion. Hal. 2.19.4–5 – all too undignified! Cf. Val. Max. 7.7.6 on the exile of the slave
who castrated himself for the goddess.
27
Bauman points out, the three men listed as assisting the two consuls in
drawing up the Senate’s resolution were ‘L. Valerius Flaccus (cos. 195),
mentor and running mate of Cato; M. Claudius Marcellus (cos. 196), an ally
of Flaminius; and Q. Minucius Rufus (cos. 197), an ally of Scipio Africa-
nus’.100 There is no mention anywhere in Livy of conflicting opinion; there
is no credible opportunity in his account to see separate groups looking to
Cato and to the Scipios. Of course, there may have been some level of dis-
agreement, but it was not out in the open. The Senate acted to repress the
‘threat’ to social stability that it had discovered, both in Roman territory
and outside it, among the allies. The Senate alone created the quaestio
extraordinaria, gave the consuls a mandate to act as they thought fit to
implement the Senate’s instructions, and gave powers to punish without any
form of appeal. The Senate exercised this jurisdiction over Roman, Latin
and other Italian citizens. The populace was informed, but not consulted,
and no lex was passed, as the inscription confirms, until after the event. The
affair was political rather than legal. As has been said,101 Livy gives us a
much better chance of understanding the senatorial propaganda of the
period than of reconstructing what actually happened. The Senate was flex-
ing its muscles in the new triumphalism that followed victory in the First
and Second Punic wars; the Senate was, as a body, concerned to exercise its
control over its individual members for the (relatively speaking) common
good.102 This is not to deny that religion was a sincerely held means of
expressing, of illuminating, the Senate’s role as the guardian of all things
Roman, particularly religious; it was after all the Senate which had played
the leading role in the establishment of the Magna Mater. The danger in the
Bacchic worship had been that it was both widespread and not under any
official control; its priests might, just might, have been up to anything, and
hence the particular attack on its priests or other officers.103 Some senators,
doubtful of the portrait presented to them, may nevertheless have gone
along with the measures against the Bacchanals simply because alien reli-
gion was involved, others because firm control had been exercised over a
popular cult.
So what can we learn here of Roman penal practice or policy? That this
was a period too early for there to be criminal law in any meaningful legal
sense, although there were constitutional conventions which might or
might not be observed. That political aims dominated policy and could
create ‘crime’ when it was expedient; in later periods it was really only
treason that was so lacking in consistent principle. That the repression of
100
Bauman (1990), 345.
101
North (1979), 87.
102
Gruen (1990), 65ff.
103
This attempt to cut out the ringleaders is also obvious in the persecution of the Chris-
tians, see ch. 5. There are other parallels too.
28
crime was pursued actively by the encouragement of informers to bring the

‘criminals’ to the attention of the authorities, a tendency that was to endure.
That women were seen as weak and prone to corruption, but also to be
feared as the source of religious unrest, and this in spite of the ringleaders
all being male; this view of women as the weaker, but dangerous, sex is
indeed a rhetorical topos. That male rape was an issue – throughout Roman
history, there was violent disapproval of citizens taking the passive role in
homosexual relations, so to force this on a freeborn boy was a huge outrage.
It was, and remained, one of the surest ways of stirring up public indigna-
tion.104 That forgeries of wills and other documents also cut at the trusted
base of upper-class life, and so reports of such doings whipped up feelings
among senators and their kin. That, at least on this occasion, punishment
was harsh. We may reckon that the report of 7,000 put to death was an
exaggeration, but clearly the death penalty was widely imposed.105 At this
period, very differently from Polybius’ account of Roman criminal trials
some fifty years later, there was evidently no tacit assumption that citizens,
or at least upper-class citizens, were immune from physical penalties.106 But
although these elements of the affair represent or foreshadow later develop-
ments, the essentials of the ‘conspiracy’, what it was, who instigated it and
why, who were involved in the rites and what they did, and why the
authorities, at a time when the state was not greatly in danger from external
forces, should have chosen to indulge in large-scale repression, all remain
obscure.107
104
Cf. CTh 9.7.3 (AD 342) and 6 (AD 390). MacCary (1975) thinks this issue, the belief that
male initiates must be subjected to homosexual intercourse, was the main reason for the
suppression, and indeed Walsh (1996), 200, accepts the idea that there was ‘systematic
sexual abuse’.
105
The witchcraft trials of the early modern world make a natural comparison, and perhaps
they were even influenced by Livy’s account; see Pailler (1988), 797–816, discussing the
influence of the Bacchanalian affair on ‘Europe’s inner demons’.
106
Polybius 6.14.7; and see Robinson (2004b).
107
So also do the practical questions of how, by what method, were those convicted exe-
cuted? And who carried out the executions of so many?
29
Chapter 2
CICERO, MURDER AND THE COURTS
In this chapter I want to consider one of Cicero’s murder cases, pro Roscio
Amerino, making some comparisons, where relevant, with pro Cluentio of
some fourteen years later, which is also concerned with death in the upper
ranks of municipal life. (In each there is an all-purpose off-stage villain,
Chrysogonus in pro Roscio, Oppianicus senior in pro Cluentio. In each Cicero
starts by saying that he will prove positively his client’s innocence, but
later, quite properly, reverts to throwing the burden of proof on the accuser.)
The speech on behalf of Sextus Roscius from Ameria is one of Cicero’s ear-
liest, and his first criminal trial; he was probably twenty-seven years old
when he made it in 80 BC.1 (We have one earlier speech surviving, pro Publio
Quinctio, delivered the previous year, which dealt with a fairly complicated
matter of partnership, inheritance and debt; we do not know the result.2).
The charge was not simply murder, but more specifically parricide, the
murder by the defendant of his father. Sextus Roscius’ acquittal seems to
have made Cicero’s name as a forensic orator.3
All we know about the case comes from this speech of Cicero’s, so there is
no external account of it from which we can estimate his truthfulness.
Naturally his picture is slanted; he was an advocate appearing for the
defence, and it was his duty to make the best possible argument for his
client. He argues that the balance of probabilities, which was what a Roman
jury had to decide – videtur fecisse/videtur non fecisse – was that Magnus and
1
Gellius 15.28. I have not included the name of Cicero in my citations of pro Roscio Amerino.
2
Technically it was a causa praeiudicalis, a pre-judicial case to settle the matters really in
dispute, concerning possession. Since Cicero does not boast that he won, he presumably
lost; Kinsey (1971), 5, as editor of pro Quinctio, describes his success as ‘unlikely’, but
Platschek (2005) just leaves it as unknown.
3
Cicero mentions it twice, and acquittal must be inferred. ‘Thus my first criminal case, for
Roscius of Ameria, won such favourable comment that I was esteemed as competent to
handle any kind of litigation’ (Brut. 90.312). ‘There is particular glory and favour to be
won in defending, and so much the more when it comes to the aid of someone who is
oppressed by the rich and powerful, like the defence I made when a young man on behalf
of Sextus Roscius of Ameria against great influence during the domination of Sulla’ (off.
2.14.51). Plut. Cic. 3.2–4, states explicitly that Sextus Roscius was acquitted.
30
C I C E R O , M U R D E R A N D T H E C O U RT S
Capito, two of the Roscii, one of the leading families, or indeed clans, in Ameria,
had brought about Sextus Roscius senior’s death, and certainly the loss of
his estate. The first charge does not appear, even on the facts as Cicero gives
them, to be at all likely; the second is much more convincing. Cicero’s
defence is based, as was common with the Romans, more on character, which
was held to be consistent, than on objective evidence. Cicero’s character
evidence for Sextus is mostly in the form of a rhetorical topos, a disquisition
on the superiority of rural life; his client is represented as a countryman, and
so ex hypothesi respectable, but he does at least provide such a laudation.4
Cicero’s reliability in setting out exactly what had happened may be doubted,
but he would have been limited by the need for plausibility, particularly as
to the kind of facts with which the members of the jury would be well
acquainted. To have been caught out in a direct untruth (as opposed to a
misdirection) would have damaged his credibility; oratory might be used to
make the worse appear the better part, but there were rules to the game.
Sextus Roscius junior’s trial, like that of Cluentius, took place before the
quaestio perpetua de sicariis et veneficiis;5 both trials reflect a society where the
ravages of civil war had undermined social stability and trust, in the Italian
municipalities perhaps even more than in Rome. Before looking at the
actual trial, I shall give an outline of the court system, and then a rapid
survey of the political background.
The system of the standing jury-courts

The quaestiones perpetuae were the standing jury-courts, of which the first had
been established in 149 BC by the lex Calpurnia de repetundis to deal with
extortion in the provinces by Roman magistrates. These courts were in
permanent session in the sense that, whenever a relevant accusation was
made, the praetor in charge of a particular court for the year in question
could proceed at once to the enrolment of a jury, chosen from an album
(list), also valid for the year. The list of potential jurors or iudices6 was
drawn up annually by the Urban Praetor; the jurors were taken from the
upper orders of society, sometimes senators, sometimes equestrians,7
sometimes – and always after 70 BC – from both orders.8 This question of
4
In pro Cluentio by contrast, he makes virtually no mention of Cluentius’ personal character,
although covering him with the praise of his father.
5
Cicero uses both de veneficis, concerning poisoners, and de veneficiis, concerning poisonings;
both forms seem appropriate in the context of the court.
6
The term iudices literally means judges, but in the context of the quaestiones perpetuae is
normally translated as jurors; Cicero is usually understood to address the ‘gentlemen of the
jury’.
7
The cavalry of early Rome; the class below, and to some extent overlapping, the senators.
8
And sometimes more widely. On post-Sullan juries, see, still, Greenidge (1901), 436–56;
Greenidge remains a reliable guide to the procedure of these courts in Cicero’s time, pp.
456–504, ‘The course of the trial’. Augustus relieved senators of the duty.
31
the composition of the juries was, for some fifty years after C. Gracchus’
changes in 122 BC an extremely sensitive political question.9 In the 80s
Sulla had reversed the Gracchan use of equestrian jurors and in his time the
juries were composed exclusively of senators.10 There is a noticeable differ-
ence in Cicero’s attitudes to the jurors in pro Roscio and pro Cluentio. In the
trial of Sextus Roscius there was a Sullan jury, all senators, comprising per-
haps 32 iudices. Cicero speaks respectfully to them as representatives of all
that is best in the res publica. In the later trial there was a mixed jury, with
probably some 75 iudices, and Cicero could refer to a senatorial jury of 74 BC
as having been heavily bribed; this indeed was an important part of his
defence of Cluentius. The senatorial members would have had to accept this,
because it was a notorious scandal, and the equestrian jurors might have
been secretly somewhat amused.
During his dictatorship in 82–81 BC only a year or so before the trial of
Sextus Roscius, Sulla revised the statutes governing the standing jury-
courts, creating for the first time a systematic criminal legal system.11 Each
statute defined its crime, and laid down the procedure and the penalty.12
This was the ordo iudiciorum publicorum, or simply the ordo, further and
finally regulated by the Emperor Augustus.13 There is no reason to doubt
that Sulla did intend the courts to take over the care of public order;
otherwise he would hardly have established or re-established them. There
were courts, each set up by its own statute, dealing with treason (maiestas),
with extortion by governors in the provinces (de repetundis), with the
embezzlement of public funds (de peculatu), with the forging of documents
and coining (de falsis), with murder (de sicariis et veneficiis), and probably
with assault (iniuria) and with electoral corruption (ambitus). The quaestio
perpetua de vi (violence, sedition) was post-Sullan; it is unclear whether it
was established by the lex Lutatia or the lex Plautia.14
Each court dealt with one crime or group of crimes: for example, the
misappropriation of public monies properly received – de residuis – fell
9
See Brunt (1988), 194–239.
10
For the details of assigning a Sullan jury, see Greenidge (1901), 437–42.
11
Cloud (1994), 530; Robinson (1995b), 2–3.
12
We have nearly the whole of one such statute, the lex on the tabula Bembina, commonly
known as the lex Acilia (FIRA i no.7, p. 84; RS I 39–112). It is pre-Sullan, so there may
well have been subsequent changes of detail, but it is clear from Cicero’s speeches that it
illustrates the normal outline of a trial.
13
The lex Iulia iudiciorum publicorum of 17 BC, a judicature act, as one might say. This is why
the establishing statutes are nearly all either a lex Cornelia (from Sulla) or a lex Iulia (from
Caesar or Augustus). All other courts deviated from the ordo, and so were described as
extra ordinem – extraordinary in a very narrow sense.
14
On the establishment of these courts generally, see Cloud (1994), 512–26; on the statutes
on vis, see Vitzthum (1966). Cicero was able to remark that all crimes were covered by
these courts (‘cum omnium peccatorum quaestiones sint’, Balb. 28.65), but this was
because of the great scope of the delictual actions.
32
under the court for the embezzlement of public funds, and the acceptance of
bribes by those involved officially in the judicial process was classed as
extortion. Each court had a magistrate, normally a praetor but sometimes an
ex-aedile – in either case he could be called quaesitor (but the term iudex
quaestionis seems restricted to the ex-aediles) – who was appointed, or rather
allotted, by the Senate to preside over it for the year of his term of office. It
was to him that accusations were made, and it was his duty to decide whe-
ther the accusation was competent and should be accepted. There might
need to be a preliminary hearing, with a jury, if there were several persons
seeking to bring an accusation;15 this was because only one man could speak
as the formal accuser, but he was allowed supporters, who were called sub-
scriptores. If there were multiple charges, it was for the praetor, presumably
the Urban Praetor, to allot the case as seemed most suitable according to set
rules.16 A majority verdict was required for a condemnation.17
The quaestio perpetua de sicariis et veneficis

The quaestio perpetua based on the lex Cornelia de sicariis et veneficis had
become by Sulla’s time, with the bringing together of two older courts, the
single murder court.18 It also had jurisdiction over parricide,19 urban
arson,20 and in some cases the corrupt procuring of the condemnation of an
innocent person on a capital charge.21 C. Sempronius Gracchus, in whose
tribunate all-equestrian juries had been introduced, had had a law – appar-
ently the first on the topic since the Twelve Tables22 – passed against any
form of judicial corruption, ne quis in iudicio circumveniatur, which had been
15
This was called a divinatio; Cicero won the case against Caecilius to be allowed to prose-
cute Verres (divinatio in Caecilium); see also Tac. Ann. 3.10.1, considered in chapter 3,
where there was competition to prosecute Piso.
16
Quint. inst. or. 3.10.1.
17
Three verdicts were possible in a criminal trial at this period, rather as in Scots law:
guilty, not guilty, and non liquet, or no vote; the third Scots verdict is ‘not proven’. For a
condemnation, there must be a majority, non liquet counted as an acquittal; the verdict on
Oppianicus (treated in pro Cluentio) was clear if close, 17 votes to 15 (Cicero, Caecina
10.29). The rule that an equality of votes for condemnation and acquittal meant acquittal
is a limited argument for the acceptance of a presumption of innocence.
18
For an analysis of the statute, see Ferrary (1991). On the content in practice see generally
Robinson (1995b), 41–47. I think, contra Cloud (1968) and (1994), that this creation of
one murder court, even if it sat in several divisions, was Sulla’s purpose. Further, I agree
with Alexander (2002), 187, that the divisions were pragmatic, and that from this time
on the same president and the same jurors could hear any form of murder.
19
Since at least 86 BC (Cicero, inv. 2.19.58).
20
Based on XII T 8.10; D 48.8.1pr, Marcian. See also MacCormack (1972).
21
D 48.8.1pr-1, Marcian; PS 5.23.1. Cicero argued in Cluentius’ trial that this section
could not at that time apply to a member of the equestrian order since the equestrians
had not been eligible to serve (Cic. Clu. 52.144–57.157).
22
XII T 9.3 = Gellius 20.1.7.
33
aimed at abuse of official power rather than bribery. This law may originally
have had a quaestio of its own,23 but it seems to have been subsumed into
Sulla’s murder statute in altered form to fit the new circumstances. Earlier,
the quaestio de sicariis had dealt with gangsters (the urban equivalent of rural
bandits), professional thugs and killers, which explains why the language
used in the statute is apparently more concerned with going about armed in
preparation for committing murder or theft than with actual killing;
attempts very definitely fell within its scope.24 This kind of behaviour came
to be dealt with primarily by the legislation on vis in the 70s and later. The
quaestio de veneficiis was at least as old as the century and probably dated
back to the 120s BC; there had been several notorious quaestiones extra-
ordinariae earlier in the second century to investigate particularly shocking
cases of poisoning.25 The fifth chapter of the lex Cornelia covered making,
selling and buying poison, as well as using it or arranging for it to be
used.26 The penalty of the law was technically capital, death, but it had
become customary, by the middle of the second century BC according to
Polybius,27 to allow those condemned in the assembly trials to go into
exile, as long as even one century had not voted; this custom seems con-
tinued in the quaestiones perpetuae. Julius Caesar was to formalize interdiction
from fire and water – outlawry – as the penalty, along with confiscation of
half or all the convict’s property. It remains obscure whether this applied to
those convicted of crimes not covered by the quaestiones perpetuae.
The lack of a state prosecution service and the moral

ambivalence of prosecution
One of the main features of Roman criminal procedure is that the Romans
never had a state prosecution service, although prosecution ex officio by a
magistrate or provincial governor was known. For 500 years or more they
relied primarily upon crimes being brought before the criminal courts by
individuals, normally the victim or his kin, or else (probably) upon private
criminal prosecution before the civil courts;28 this was presumably effective
while Rome was a small Italian city-state. In matters where the safety of the
state was involved, a magistrate would bring a charge before an assembly of
the people – such trials were called iudicia populi. But as Rome grew, and
urban life became more impersonal, it became normal, particularly after the
establishment of the quaestiones perpetuae, to allow any adult (male) citizen in
23
Strachan-Davidson (1912), II 83.
24
Cloud (1969).
25
184 BC (Livy 39.38.3); 180 BC (Livy 40.37 and 43); 152 BC (Livy 40.44.6; per. 48; cf. Val.
Max. 6.3.8).
26
D 48.8.3pr, Marcian.
27
Polybius 6.14.7; Robinson (2004b).
28
Kunkel (1967), ‘Ein direktes Zeugnis’.
34
good standing to bring an accusation if he became aware of a crime; indeed,

it became something to be encouraged, even rewarded, and it was with the
rewards that moral doubts developed. Plautus in one of his plays has a
professional parasite (a low character) unwilling to be an informer (neque
quadruplari me volo); it was unbecoming to snap up the property of others
without personal risk, and the character would like a law making the suc-
cessful accuser give half his proceeds to the public purse.29 Accusers were
technically delators, delatores nominis, since they laid before the president of
the relevant court the name of the accused; the term is often translated by
‘informers’. Index, indices in the plural, is another term sometimes used for
these men, because they pointed out, indicated, the allegedly guilty, but
generally indices were closer to informers in the modern usage of the term;
they were likely to be persons on the fringes of the crime under investiga-
tion.30 As Cicero said in pro Roscio:
It is a useful thing that there should be a number of accusers in the

state, so that audacity may be held in check by fear, . . . This is the
reason why we are all ready to allow that there should be as many
accusers as possible, because an innocent man, if he is accused, can
be acquitted, but one who is guilty, unless he is accused, cannot be
condemned. For it is more expedient that an innocent man should
be acquitted than that a guilty man should not be brought to
trial.31
Personal enmity or desire for revenge were considered good moral grounds
for prosecuting, whether the prosecutor was the victim of a crime, or con-
nected with him (or her). This was because the Romans held that a degree
of self-help was normal and proper in a citizen’s life, although the interests
of society might demand the involvement of the authorities. ‘The ordinary
Roman had to be his own policeman, but he must have needed a reasonably
accessible procedure to deal with capital crimes.’32 To initiate violent action
was wrong, and became more so as the Empire developed, but there ought
to be a balance in society between the interests of state and individual. (It
was perhaps not so very different from the culture of the American West.)
The institution of clientage meant that the poor would be under the pro-
tection of the powerful, thus making the playing-field more even. There was
no police force, as there was not in modern Europe until the eighteenth
century at the earliest. (And, as I said in my Introduction, there was not
29
Plautus, Persa, 62–74; this was clearly before the introduction of calumny. On quad-
ruplatores, see Wesener (1963); Camiñas (1984b); Cloud (1992). See also Robinson (2006).
30
Camiñas (1983); Cerami (1998a).
31
Rosc. Am. 20.55–56.
32
Lintott (1999), 156; an example is the report of a suspected crime by the missing man’s
freedmen in Cic. Clu. 13.38.
35
really a criminal law in Rome in the modern sense, but then, neither was
there in Europe before the twin forces of the Enlightenment and the
Industrial Revolution.33) Self-help was nevertheless approved, not because
the forces of law and order were inadequate, but because it was morally
good,34 and this particularly applied to domestic offences such as rape and
adultery.35
Prosecution was, however, because of its rewards, held to be a morally
ambivalent act, which is why Cicero normally appeared for the defence.
Sometimes loyalty, whether personal or to a province or city, could justify
prosecution, as with his prosecution of Verres.36 And it was not too
deplorable for a young advocate at the start of his career, before anyone
would ask him to act for the defence, to bring his name into prominence in
this way. Yet Cicero viewed with contempt those who made a profession of
accusing. This was an attitude widely held. Quintilian, for example, a cen-
tury later, said that while accusations might be made from either public or
private duty, and although the laws would be powerless if nobody prose-
cuted, yet to live for prosecution and its rewards was brigandage – latroci-
nium.37 To prosecute for pay was shameful, or even criminal. Because of this
system of private prosecution, and in particular because successful prosecu-
tion could be lucrative, there developed the offence of calumny under the lex
Remnia, perhaps of 91 BC, extended in the Edict of the Urban Praetor.38
This was the bringing of a false charge, from malice, or frivolity, or at least
with reckless disregard for the truth. Failing to make good one’s accusation
did not of itself infer calumny, but after an acquittal it was the duty of the
court to consider the issue.
The Social War and Sulla’s dictatorship

To move now to the political and social background to pro Roscio Amerino
(and also pro Cluentio).39 Partly as a result of the military burdens laid upon
them by Rome’s various wars, the Italian allies of Rome had been desirous
of the Roman citizenship – and its freedom from taxation – since at least
around the beginning of the first century BC. In 91 BC a revolt broke out
33
Contrast Mackenzie and Hume; see Intro.
34
Lintott (1968), 25; cf. Wesener (1958).
35
Seneca, ira 1.21.3; Quint. inst.or. 7.4.6; Gellius 10.23; Val. Max. 6.1.13. Cf. Manfredini
(2001).
36
Pliny, at the end of the first century AD, felt uncomfortable with prosecuting, even where
he saw it as his duty. Like Cicero he was much happier acting for the defence (Pliny, Ep.
3.4.8).
37
Quint. inst.or.12.7.1–3.
38
Camiñas (1984a), summarised (1990), in French; Camiñas (1994). For a fuller treatment
of procedural offences, see ch. 4.
39
For a history of these events, see, for example, Scullard (1982); Gabba (1994); Seager
(1994).
36
which rapidly escalated into the Social War, the war of the socii or allies,
which lasted some three years. It did win the Roman citizenship for all
Italians south of the River Po, ‘but at a terrible cost in human lives and
suffering; its economic repercussions were serious’.40 Sulla became consul in
88 BC, after the end of the war, and received Asia, and dealing with
Mithridates, the ambitious king of Pontus, as his province. The tribune
Sulpicius, however, contrary to the conventions of the constitution, carried a
law to transfer this command to Marius. Sulla and his army marched on
Rome, seized the City and annulled Sulpicius’ laws. Sulpicius, despite his
tribunician sacrosanctity, was killed; Marius was declared a public enemy
and fled to Africa. Octavius and Cinna, who appeared friendly to Sulla, were
elected consuls. Sulla then went off to the East, where he defeated Mithri-
dates and restored Roman power. Cinna’s behaviour was such that Octavius
declared him a public enemy, but in vain; Cinna joined Marius, back from
Africa, raised armies and took Rome, looting and murdering for five days.
Cinna and Marius were elected consuls for 86 BC, but Marius died, and for
the next three years there followed what is known as the domination of
Cinna in the popularist interest. Cinna, however, was killed in 84 BC, and in
83 BC Sulla returned from the East; open war then broke out again between
himself, supported by the party of the optimates, and the younger Marius,
leading the populares. A number of senators were slaughtered in Rome on
the orders of Marius junior shortly before Sulla reached the City. Sulla was
victorious in 82 BC; he showed clemency to those who were swift to submit,
but a terrible massacre of those taken prisoner at the battle of the Colline
Gate of Rome was the fate of those who resisted.41
The proscriptions
Under the lex Valeria of 82 BC Sulla became dictator legibus scribundis et rei
publicae constituendae. He then issued an edict, proscribing his enemies.42
‘Proscription’43 meant in practice publishing a list of those who were held
to be enemies of the state; they were deprived of all rights, so that it was no
crime to kill them. Indeed, rewards were paid to those who did kill them –
12,000 denarii a head, a literal head, which was to be publicly exposed in
Rome; the 12,000 denarii were paid from public funds under proper
40
Scullard (1963), 70.
41
Plut. Sulla 30.2–3; Seneca, clem. 1.12.2. The story goes that Sulla, speaking to the Senate
as it met at the Temple of Bellona, where the shrieks of some 6,000 men dying were
clearly audible, told the senators not to bother about the criminals being admonished; it
was being done at his orders.
42
For the details, see Hinard (1985), particularly pp. 35–51.
43
The literal legal meaning of the term applied only to the confiscations, for it meant the
notice of sale of such property. As in cases of bankruptcy, the estate was sold as a whole.
However, the term came to be used more loosely for the outlawing of those listed.
37
accounting procedures. The reward for slaves was their freedom. Anyone
who in any way assisted or helped one of the proscribed was to be capitally
punished, as was anyone who failed to betray any of them. Once beheaded,
the proscribed were not to be allowed funeral rites, but their bodies were to
be dragged by iron hooks and tumbled into the Tiber, in some cases after
deliberate mutilation.44 Mourning them was forbidden.45 Their estates were
confiscated and auctioned off; we are told that this was for the benefit of the
buyers, rather than to raise any serious sums,46 since the rewards were not
paid from this source. Their children and grandchildren were deprived of
their civic rights; they could not stand for a magistracy, or hold any other
honour, and may have been barred from living in Rome or Italy.47 This may
have been introduced by the lex Cornelia on the proscribed, a law perhaps
entitled lex de proscriptione, perhaps lex de hostibus rei publicae,48 which was
subsequent to the edict, and may have been intended to give Sulla’s own
supporters knowledge of the extent of the vengeance.
A story is told which reveals how people remembered the time of fear:
Lucius Catiline had killed his brother before the civil struggle was decided,
but he now asked Sulla to proscribe that brother posthumously; Sulla
agreed, and in thanks Catiline brought the head of Marcus Marius Grati-
dianus,49 another of the proscribed, and his own brother-in-law, to Sulla
where he sat in the Forum, and then washed his bloody hands there in the
lustral water of Apollo.50 Such a background makes more credible Cicero’s
list of charges in pro Cluentio against Oppianicus:
Oppianicus was the man who was convicted of falsifying with his
own hand the public records of his town, who forged a will, who by
fraudulent personation secured the seals and signatures of witnesses
to a sham will, who murdered the man in whose name it had been
signed and sealed, who put to death his own son’s uncle when a
slave and a captive, who secured the proscription and death of his
own fellow-townsmen, who killed his brother and then married the
44
Cicero himself was to lose his hands, for penning the Philippics against Mark Antony,
when he was beheaded in the triumviral proscription of 44 BC (Appian BC 4.4.20; Plut.
Cic. 48.4).
45
This was not unusual for those defined as enemies of the state.
46
Cic. off. 2.8.27; 1.14.43. The buyers at auction, the sectores, could then break up the
confiscated estates and sell them off piecemeal.
47
If so, this probably applied only to the descendants of senators; there seems to be no
attempt to make his continuing residence in Rome a charge against Sextus Roscius junior.
Cf. Vell. Pat. 2.28.4.
48
Hinard (1985), 75.
49
The Gratidii, along with the Marii, were the leading families in Arpinum; they were also,
unsurprisingly, connected to the Cicerones (see Rawson 1971), 76–79; Gratidianus was
celebrated for his reforms of the coinage.
50
Plut. Sulla 32.2; Seneca, ira 3.18.1–2.
38
widow, who gave a bribe to procure abortion, who murdered his

mother-in-law, murdered his wives, murdered at one and the same
time his brother’s wife with her expected children and his brother
himself, and finally murdered his own children, and who, intending
to give poison to his stepson, was taken in the act [not Oppianicus
himself, but his minion, Scamander], and when haled to judgment
after the conviction of his tools and accomplices bribed a juror to
tamper with the other jurors’ votes. 51
One must remember that (as we shall see in the case of Germanicus in
chapter 3) it was very easy to allege that someone had been poisoned, since
the Romans had no adequate knowledge of internal diseases. On the other
hand, while we do not have to believe that Oppianicus did actually poison
so many of his kin, it is clear that Cicero could put forward these allegations
without arousing ridicule; the cheapening of life and the coarsening of sen-
sibility brought about by the Social Wars and the period of the proscrip-
tions must have helped make them credible.
The lex Cornelia de proscriptione included a further list of proscribed per-
sons, and also confiscated the estates of those who had taken up arms against
the res publica – that is, against Sulla and his party – including those who
had fallen or would fall in the continuing fighting. The confiscation of
estates52 seems to have been fixed to come to an end on 1 June 81, but the
non-status of the proscribed was to remain in force for ever and everywhere;
they could be sought out and killed wherever they were hiding.53 (Not
until the lex Antonia of 49 BC were all the legal effects of the lex Cornelia
undone.) The first lists included some 40 senators, 1,600 equestrians, and
other country gentlemen of comparable status, men such as Sextus Roscius
senior.54 ‘Those who fell victims to political resentment and private hatred
were as nothing compared with those who were butchered for the sake of
their property.’55
51
Cicero, Clu. 44.125.
52
Perhaps now to be sold for the benefit of the aerarium, the state treasury.
53
In 64 BC, when Caesar was praetor for the quaestio de sicariis et veneficiis, he allowed some of
the sicarii who had slaughtered the proscribed to be prosecuted as killers before the
murder court, even though the lex Cornelia had given them immunity as well as rewards
(Suet. Julius 11).
54
Appian, BC 1.11.95–96; later lists included more senators, and men of wealth from
among the Italians; elsewhere (BC 1.12.103) Appian gives as a total 90 senators (includ-
ing 15 consulars) and 2,600 equestrians, not mentioning Italians.
55
Plutarch, Sulla 31.3–5; in this account it began with 80 names, then in the next two days
another 440, and more later. Orosius (5.21.1) gives the highest total figure, 9,000; Fir-
micus Maternus (Math. 1.7.27) reports 7,000. Gardner (1932), 277, gives the total as
4,700. Cic. Clu. 8.25 gives a local example at Larinum.
39
The civil strife had ripped apart the social stability of the Italian upper
classes. The effects of constant wars ruined much of the Italian peasantry;
conscription of adult males led to impoverished or indebted farms, with
nobody there to protect them against forcible expropriation. Shortage of
labour on the land led to shortages of food, and to the growth of kidnap-
ping; an insufficiently armed traveller might well disappear for ever into the
ergastulum of some successful Sullan, as did Marcus Aurius, taken prisoner
during the Social War; his whereabouts were eventually discovered, but only
in time for him to be put out of the way.56 Unrest among slaves culminated
in the rising of Spartacus, which lasted two years (73–71 BC) and harmed
much of Italy as his armies ranged over the peninsula. When the rebellion
was at last put down by Crassus, 6,000 rebellious slaves were crucified along
the length of the via Appia;57 these men too, as has been wryly said, ‘were
permanently removed from the labour force’.58 Violence and bloodshed were
taken for granted, as was the seizure of one’s enemy’s property, usually but
by no means always under the pretext of his being an enemy of the res
publica. The trial of Cluentius, some fourteen years after the restoration of
legal normality, reveals the continuing harm done to municipal life, for the
accusations made by Cicero, while obviously suited to his case, cannot have
been totally implausible. But in 80 BC, when the charge of killing his
father, parricide in the strict sense, was brought against the younger Sextus
Roscius,59 the wars were not quite over – Sulla was still besieging Vola-
terrae under arms. Parricide might be viewed as a separate crime from
murder, with a separate penalty, but it was hardly a common enough crime
to justify a court specially assigned to it, so the case was heard before the
ordinary murder court, recently re-established by Sulla.
pro Roscio Amerino: the case

Cicero opens his case with an explanation of his own appearance as advocate
before the court. His very youth and lack of status – he was at this time an
equestrian from one of the Italian municipia, in his case Arpinum, someone
not so very different from his client – gave him more freedom to appear at a
time when men of greater standing might with reason fear the dangers
inherent in defending a case which would inevitably raise issues concerning
56
Cicero, Clu. 7.21; he is the ‘slave and captive’ mentioned in Oppianicus’ list of crimes,
cited above. It is possible that the Martiales, the public slaves of Mars consecrated to the
god by the ancient religious customs of the citizens of Larinum, or some of them, may
have been victims of the times (Cicero, Clu. 15.43). It was still a problem under Augus-
tus (Suet. Aug. 32.1).
57
Appian, BC 1.14.120.
58
Brunt (1971), 288.
59
To minimize confusion, I shall usually refer to the elder Sextus Roscius as Roscius, and
the younger as Sextus.
40
public affairs. Kinsey’s suggestion that a landless refugee client was not
worth much effort to the Metelli and Publius Scipio seems credible.60
Nevertheless, Cicero was presumably able to win some sympathy from the
iudices by claiming that he was undertaking the defence of Sextus Roscius,
not that he might be adequately defended, but to prevent his not being
defended at all.61 Cicero then explained to the jurors what he was talking
about. The property of Sextus Roscius senior had been valued at 6 million
sesterces, and yet Lucius Cornelius Chrysogonus, the freedman and favourite
of Sulla, claimed to have bought it, from Sulla, for 2,000 sesterces. Chry-
sogonus therefore was looking for some way to secure his illegal seizure, and
to remove Sextus Roscius junior, the heir, from the scene.62 It was a gross
indignity to their senatorial rank that the jurors should be thought capable
of aiding such a plot by supporting Chrysogonus with the law when he had
so far relied on crime and the sword.63
It was this attack on Chrysogonus that involved some risk to Cicero. An
attack on somebody’s freedman was normally construed as an attack on the
patron; Sulla had only just stepped down from a bloody dictatorship, able to
do so because he had killed or impoverished all his opponents, but still
holding the consulship and in control of an army. Moreover, it was almost
certain that nearly all the men of continuing influence in Rome, including
the jurors, would have benefited from sales of estates under the proscrip-
tions; these were not to be undone. Cicero’s remarks about Sulla’s innocence,
while tactful, need not be ironic;64 he was inclined to the party of the opti-
mates in spite of being a fellow-townsman of Marius. There has been some
attempt to diminish Cicero’s claim to courage in undertaking this defence,
and it seems true that he probably inflated the importance of Chrysogonus
and of his influence on Sulla; Chrysogonus is not mentioned in any ancient
source independent of Cicero, which surely would have been the case if he
had really been ‘at the time perhaps the most powerful young man in the
state’.65 However, Cicero’s speech would have been far less effective if
Chrysogonus had not been generally seen as a person of considerable influ-
ence. The apparent weakness (for we have only Cicero’s word) of the prose-
cution case could indeed have been due to the accusers not expecting to
meet any resolute defence.
60
Kinsey, (1985a). See Rosc. Am. 28.77, also 10.27; Sulla’s beloved wife was a Metella.
Cicero owed a debt to Lucius Crassus (Rawson, (1971), 82f), but may have been encour-
aged by the Metelli to attack, indirectly, Marcus Crassus, as suggested by Dorey (1960).
61
Rosc. Am. 1.1–2.5.
62
Rosc. Am. 2.6.
63
Rosc. Am. 3.7–8.
64
So Kinsey (1980), despite Buchheit (1975b).
65
Rosc. Am. 2.6: ‘adulescens vel potentissimus hoc tempore nostrae civitatis’.
41
The narrative
Cicero remarks that this was the first murder trial that had taken place for a
long time, although there had been slaughter in plenty, in other words, the
proscriptions. This was, of course, because the civil wars had not permitted
the ordinary functioning of the courts, which had now been revived by
Sulla, and were intended to help restore normality. Cicero then turns to the
facts of the case – naturally, as he chooses to give them. Roscius senior had
been the leading citizen of the municipium of Ameria, an Umbrian hill town
rather more than 50 miles north of Rome. He had also enjoyed formal
relations of mutual hospitality (hospitium) with some of the most notable
senatorial families in Rome, the Metelli, the Servilii and the Scipiones, and
had in addition been personally on excellent terms with these families.
They, and Roscius, had largely sided with the optimates, Sulla’s side in the
civil wars, and Roscius had defended these families’ interests and those of
other optimates in and around Ameria. After the end of the civil wars, he was
regularly to be found in Rome, seen in public as one comfortably on the
victorious side.66 However, there was a long-standing feud between Sextus
Roscius senior and two other Roscii of Ameria, Titus Roscius Capito and
Titus Roscius Magnus. Magnus was in court as one of the accusers, while
Capito, who was well known, Cicero says, as a cut-throat scoundrel, had
recently acquired three of Roscius’ farms. One evening, when Roscius was
returning from supper, by implication with one of the senatorial families
already mentioned, he was set on and killed close to the Baths of Pallacina,
near the Circus Flaminius. At this particular time Magnus was in Rome,
whereas Sextus was at home in Ameria, managing his father’s estates.67
The news of Roscius’ death was brought to Ameria by one Mallius
Glaucia, described by Cicero as a man of no account, a freedman, and a
client and familiar of Magnus, and he brought the news, and also the
weapon used, not to the son, but to Capito. Although the murder had been
committed at dusk, the messenger reached Ameria at daybreak, covering 56
miles in some ten hours with relays of light vehicles – and that was indeed
brisk travelling, particularly in the dark.68 Four days later, the death was
reported to Chrysogonus who was in Etruria, in Sulla’s camp at Volaterrae,
where the civil war had not yet ended. Roscius’ fortune was known to be
large – he owned thirteen good farms in the valley of the Tiber – while his
son was isolated from his father’s friends. Magnus and Capito promised
Chrysogonus their assistance in putting Sextus out of the way.69
66
Rosc. Am. 6.15–16.
67
Rosc. Am. 6.17–7.18.
68
Kinsey (1980), 176, holds that Cicero’s knowledge of the vehicle and the weapon (telum)
must come through Sextus, and that this implies that Capito went, probably at once, to
see Sextus.
69
Rosc. Am. 7.19–20.
42
Although the proscription was now over, for the lists of the proscribed
had been closed on 1 June 81,70 the name of Roscius was retrospectively
entered on the lists, despite his having been a supporter of Sulla’s optimates.
Chrysogonus now bought Roscius’ estate, an estate worth 6 million, bought
for 2,000 sesterces – of course, says Cicero, without Sulla’s knowledge. Sulla
was preoccupied with affairs of state; in a large household no man of wealth
could be so fortunate as not to have the occasional dishonest slave or freed-
man. Capito received three of the farms as his reward, and Magnus took
possession of the rest, as Chrysogonus’ procurator, ejecting Sextus, who was
left penniless, without even a single slave to cook his dinner.71 The inha-
bitants of Ameria were outraged at what they were seeing, the murder of
Roscius and the infamous purchase of his property. The decurions, the town
councillors, therefore issued a decree, setting up an embassy of ten leading
councillors who were to approach Sulla to tell him of the virtues of Sextus
Roscius senior, to complain of the iniquitous conduct of Magnus, and to
beg him to see that the reputation of the father and the property of the son
were preserved. The decree of the decurions was then read out to the court.
This kind of thing was a normal part of municipal life.72 The embassy went
to Volaterrae, but Capito apparently was a member of it, which could sug-
gest that he was not generally seen an enemy of Roscius senior.73 Chryso-
gonus was presumably forewarned, for, in this version of the story, he both
came to meet them in person, and also got certain men of rank to beg them
not to approach Sulla, for he did not want Sulla to know of his misdeeds.
(Sulla might, indeed, have been very angry; he broke with Marcus Crassus, a
man of consular family, who joined him with an army in 83 BC, a man far,
far above a mere freedman, for having on his own authority proscribed a
man at Bruttium, merely to get his property.74) Chrysogonus said he would
himself remove Roscius’ name from the lists, and restore his property to the
son; Capito guaranteed that this would be done, and the embassy returned
to Ameria without ever having seen Sulla. After all, the delegation knew for
certain that Roscius had not been killed ‘in the enemy camp’, so they
thought they knew that he had been on the lists of the proscribed, and that
this listing must have been done in error. Of course, what had been pro-
mised did not happen, but since the delegation had heard these promises,
the conspirators decided to make sure of their hold on the property by
bringing about the death of Sextus.75 When Sextus realized what was going
on, on the advice of his friends and relatives he took refuge in Rome at the
70
There seems to be no other source apart from this speech which gives the date.
71
Rosc. Am. 8.21–3, and 28.77. See Salerno (1990), 175ff.
72
There was similar local support for Cluentius: Cicero, Clu. 69.195–98.
73
Kinsey (1985a).
74
Plut. Crassus 6.6.
75
Rosc. Am. 9.24–26.
43
house of Caecilia Metella (sister of the consul of 98 BC and daughter of Q.

Caecilius Metellus who had conquered the Balearic Islands during his con-
sulship in 123 BC), one of his father’s grand friends. There he was safe from
direct assault.
Hence the next stage in the plot as described by Cicero. The other Roscii,
Magnus and Capito, whether or not with the connivance of Chrysogonus,
decided to have Sextus accused of parricide, saying to themselves that since
no trials had been held for so long, the first person charged would be bound
to be convicted.76 They thought that nobody would want to talk of such a
politically sensitive matter as the selling up of estates, and that the fear of
Chrysogonus’ influence and the odiousness of the accusation of parricide
would mean that nobody could be found to defend Sextus.77 There were
thus three obstacles facing Sextus Roscius junior: the accusation, which was
formally brought by one Erucius, the audacity of the other Roscii, and the
power of Chrysogonus. Cicero must refute the accusation, but it was for the
jurors to resist audacity and malign power.78
Parricide and its penalty

It should perhaps be said here that parricide by this period undoubtedly had
much the same meaning as in the modern usage, the killing of a father or
parent.79 However, the peculiar penalty of the sack (culleus) seems to have
been limited to the murder of ascendants.80 Of the cases specifically descri-
bed as parricide which we hear about, Malleolus was executed in 103 BC for
the murder of his mother.81 ‘Not many years ago’, as Cicero tells us in this
speech, two sons had been acquitted of murdering their father in Tarra-
cina.82 Sextus was, of course, alleged to have killed his father. Someone who
was accused of killing his father appeared before Augustus.83 Other killings
within the family may have been viewed as aggravated homicide, but they
do not seem to have been punished differently from ordinary murder.
Whether parricide in the narrowest sense or something wider, such cases
76
Riggsby (1999), 66, thinks this must have been a fiction used by Cicero ‘to introduce the
sensitive topic of the proscriptions in a gentler way’.
77
Rosc. Am. 10.27–28.
78
Rosc. Am. 13.35–36.
79
Festus tells us that in regal times there were quaestores parricidii who were established to
inquire into killings, for at that time a parricide was one who was said to have killed not
his parent but a free man who had not been condemned. Festus, p. 221L; leges regiae,
Numa, 12: ‘Si quis hominem liberum dolo sciens morti duit paricidas esto.’ There is a large
modern literature on the original nature of parricide.
80
D 48.9.9.1, Modestinus.
81
Rhet. ad Her. 1.13.23; Cicero, inv. 2.50.149; Livy, per. 68.
82
Rosc. Am. 23.64–65; cf. Wiseman (1967).
83
Suet. Aug. 33.1.
44
seem to have come before the quaestio de sicariis vel veneficiis, except where
extraordinary jurisdiction was the more appropriate, as in the provinces.84
Cicero went on to say that Solon of Athens had not fixed a penalty for
parricide because he thought nobody would commit such a crime. The
Romans of old were wiser; they had ordained that parricides should be sewn
alive into a leather sack, and then thrown into the river.85 The penalty of
the sack has been described for us more than once.86 Livy’s epitome says
merely: Publicius Malleolus was the first to be sewn up in a sack and
thrown into the sea for having killed his mother.87 We are given more
details by the anonymous writer ad Herennium.88
The man who is found guilty of killing a parent is veiled, tied up

in a sack and thrown into running water. . . . Malleolus was con-
demned for killing his mother; on his condemnation, his head was
immediately wrapped in the skin of a wolf, and wooden soles were
bound to his feet, then he was taken to the prison. There those who
were defending him brought in tablets and wrote his will for him
in his presence, and there were witnesses. Then the penalty was
imposed.89
Cicero explains the wooden clogs as preventing the guilty man from run-
ning away while the sack is being prepared, but it seems more likely to
have been to avoid pollution by preventing contact with the earth.90 In
none of these descriptions do we hear of any animals being enclosed with
the condemned man in the sack, but they do occur in some later literary
84
When Cicero’s brother Quintus was governor of Asia, he had two Mysians executed by
the sack at Smyrna, and Cicero seems to approve his severity, but we are given no details
(Cicero, adQ fr. 1.2.5).
85
Rosc. Am. 25.70.
86
Cloud (1971) maintains convincingly that there are jokes in Plautus’ plays which suggest
the recent introduction of the penalty of the sack, and offers the case of Lucius Hostius
(Plut. Rom. 22) as the occasion, in or shortly after 201 BC. This fits with Lintott (1968),
38–39, who thinks it may have derived, like the human sacrifices of 216, from the
Sibylline Books. It is clearly an expiatory ritual, rather than meant as a deterrent; cf. Livy
31.12.8 on the drowning of hermaphrodites in 207 and 200 BC. Val. Max. 1.1.13 claims
that the penalty was first imposed by the first Tarquin on M. Atilius, duumvir, for
revealing the secrets of the sacred rites, and that it was not until long afterwards used for
parricides: ‘culleo insutum in mare abici iussit; idque supplicii genus multo post parri-
cidis lege inrogatum est – iustissime quidem, quia pari vindicta parentum ac deorum
violatio expianda est.’
87
Livy, per. 68. Malleolus must have been the first man to be sacked for killing his mother
rather than his father.
88
The context is the dispute over the estate between the testamentary heirs and Malleolus’
brother (also one of his accusers) as nearest agnate, and therefore heir on intestacy.
89
Rhet. ad Her. 1.13.23. It is not specifically said that the sack is of leather.
90
Cic. inv. 2.50.149; otherwise this passage adds nothing new.
45
texts; Juvenal, for example, in the later first century AD, mentions an ape
and a snake.91 Insofar as the penalty of the sack had its origins in sacral law,
there need have been nothing prescriptive about the inclusion of animals;92
they could have a symbolic function which differed from case to case.
Some years after the trial of Sextus, probably in 55 BC but possibly 52
BC,93 a lex Pompeia de parricidiis was passed; there is no general agreement on
what it laid down. Most likely it defined the relationships that comprised
parricide.94 It may also have dealt with the penalty. Ferrini thinks that it
abolished the penalty of the culleus, and replaced it by exile, the penalty of
the lex Cornelia de sicariis.95 A problem with this theory is the anecdote told
of Augustus, when the emperor showed himself anxious to avoid imposing
the ancient penalty;96 one possible solution is that the lex Pompeia did not
abolish the culleus for a self-confessed parricide, not so much because he had
confessed but because the blatant deed clearly required expiation.97 Its well-
evidenced use by Claudius was in cognitio proceedings, and justifiable, espe-
cially for an antiquarian emperor, as being the ancient penalty.98 So it may
have again become the normal penalty, providing titillation for the Roman
public, after the desuetude of the quaestio perpetua de sicariis et veneficiis. By
Hadrian’s time, even for decurions and others of the upper ranks for whom
capital punishment meant deportation, death was the penalty for parricide,
in the ‘modern’ form of the simple death penalty.99 Modestinus refers to
Hadrian’s substitution of condemnation to the beasts for the sack; he views
it as limited to places where there was no access to the sea (or a suitable
river).100 It is, however, certain that Constantine enforced the ancient pen-
alty for parricide, forbidding the sword, fire or any other penalty than that
of the sack, with the inclusion of serpents.101
91
Juvenal 8.212ff; in 13.153ff he mentions only an ape; Seneca talks only of serpents (clem.
1.15.7), and likewise the pseudo-Quintilian (decl. mai. 17.9).
92
Nardi (1980), 126. Perhaps, indeed, it was the antiquarian-minded Emperor Claudius
who introduced them.
93
Cloud (1971), 60–62.
94
PS 5.24.1. D 48.9.1 and 3–4, Marcian, gives a rather more extended list; Marcian
remarks in fr. 1 that parricide can include the killing of a descendant, as well as an
ascendant; cf. 48.9.5, Marcian, where he cites a decision of the Emperor Hadrian, pun-
ishing a father for misuse of his paternal power.
95
Ferrini (1902), 389, citing D 48.9.1, Marcian. This would naturally be in the context of the
quaestio perpetua de sicariis et veneficiis; it would not necessarily have effect extra ordinem.
96
Suet. Aug. 33.1; Augustus may have felt himself bound by the ordo.
97
Crook (1987).
98
Suet. Claud. 34.1; Seneca, clem. 1.23.1.
99
D 48.19.15, Ven. Sat.; and PS 5.23.1. Parricide for Hadrian may have been limited to
ascendants (and presumably patrons) as in 48.9.9.1, Modestinus.
100
D 48.9.9pr, Modestinus. There is also mention of flogging with blood-red rods and the
inclusion in the sack of a dog, cock, snake and ape, just as in Inst. 4.18.6, which to me
suggests the text is interpolated.
101
CJ 9.17.1 = CTh 9.15.1, AD 319.
46
In his speech Cicero avoids detail while concentrating on the horror of

depriving the guilty man of sky, sun, earth and water; the body must not be
found by wild animals, lest they be rendered more savage; the body, if
thrown naked into a river, would pollute even the sea. Thus
they live, while life lasts, without being able to draw breath from
heaven; they die without earth coming into contact with their
bones; they are tossed by the waves without ever being cleansed;
they are finally cast ashore without being able to rest, even in
death, on the rocks.102
Cicero’s speech
Cicero then proceeds to have some rhetorical fun at the expense of Erucius,
the prosecutor. However, what all this amounted to was that Sextus was a
middle-aged man, with no reputation for violence, not in debt, who lived a
simple country life. But Erucius said (said Cicero), that his father disliked
him, which was ‘proved’ by Sextus’ now deceased younger brother having
been the one who accompanied his father on his many visits to Rome, while
Sextus stayed behind running the estate.103 Admittedly, it does sound from
what Cicero himself says that the father may have found his elder son
uncongenial, a rustic clod with no social life, even in Ameria. Then Cicero
tells us Erucius’ other point of accusation:104 Roscius senior had intended to
disinherit his son. Cicero feigns not to ask the motive, but only how Eru-
cius could know this. Certainly Sextus had not been disinherited. Disin-
heritance would indeed have been a serious sign that all was not well
between father and son.105 The Romans distinguished between legacies and
the inheritance. Legatees received money or individual items of property.
Heirs succeeded almost to the personality of the testator, to his (or her)
rights and duties, except those that were recognized as specifically personal.
Further, the heirs were liable for the continued performance of the family
sacra, the worship of the family gods, the lares et penates, and so on. There
might be many legacies, so that the heirs did not necessarily receive the
bulk of the estate, but it was in the heirs that the family persisted. Disin-
heritance without explanation raised a prima facie case that the testator had
not been in his right mind, and there was a remedy in the querela inofficiosi
testamenti.106
102
Rosc. Am. 26.72. Cicero later mocked his own flourishes of language (Brut. 30.107).
103
Rosc. Am. 13.38–18.52.
104
Rosc. Am. 18.52–19.54.
105
See Cicero, Clu. 48.135, where a father disinherits his son for taking a bribe to secure
Oppianicus’ conviction. Cf. Strachan Davidson (1912), I 85–95.
106
See any textbook on Roman law, such as Buckland (1963) or Nicholas (1962).
47
Such feeble accusations, not even attempted to be proven, said Cicero,

were an insult to the court. This seems a little rash of him, because at this
stage of the trial all that had been heard was the opening speech for the
prosecution, giving the general tenor of the charge.107 Witnesses were heard
and other evidence led after the defence had replied to the prosecution, and
Cicero could not be sure how convincing any testimony would be, regard-
less of whether it was true or false, particularly as Capito was due to appear
as a witness.108 He went on to blacken the prosecution by pointing out that
nobody thought there was any personal enmity between Erucius and Ros-
cius, but that Erucius had simply been bought, paid to bring the accusa-
tion, and therefore might even be at risk of a conviction for calumny.109
Cicero remarks upon Erucius’ casualness of manner in his prosecution
speech, and suggests that he did not think anybody, literally, would reply
for the defence.110
He never even thought of me, because I had never pleaded in a
criminal case before. . . . At last he concluded and sat down; I got
up. He seemed to breathe again . . . he was joking and paid no
attention until I mentioned the name of Chrysogonus; as soon as I
referred to him my man immediately jumped up; he seemed to be
astonished. I understood what had stung him. I mentioned Chry-
sogonus a second and a third time. After that men continued running
hastily hither and thither, I suppose to inform Chrysogonus . . . 111
Some modern scholars agree with Cicero’s estimate that ‘the prosecution
miscalculated’.112 Others, rather too elaborately in my view, have held that
107
Greenidge (1901), 477–78; cf. Strachan Davidson (1912), II 115–24.
108
Rosc. Am. 30.84.
109
Rosc. Am. 19.55. Erucius’ position is in marked contrast to that of Titus Attius, the
prosecutor of Cluentius. Attius was an eques from Pisaurum, a town relatively easy of
access from Larinum, on the via Flaminia, the easiest if not the shortest route to Rome;
his status and this proximity suggests that there were ties of friendship between him and
young Oppianicus, the real instigator of the accusation, which would justify his role. See
Alexander (2002), 176.
110
Rosc. Am. 21.59. A few modern scholars, such as Humbert (1925), seduced presumably
by the speech pro Milone, hold that Cicero’s speeches as given were quite different from
what was subsequently published, but most, such as Stroh (1975), Kinsey (1975),
Hinard (1985) disagree; see Pliny, ep. 1.20.6–10. Nobody doubts that there will have
been a little grammatical polishing, especially as Cicero may well not normally have
written his speeches out in full, but in pro Roscio Amerino the very nature of the dis-
crepancies argues for authenticity. Cicero, even as a young man, was surely capable of
extemporizing. And a final point, if Pliny is a guide to the practice of Cicero’s day in
this, speeches, real speeches, might be read aloud to an invited audience (Pliny, ep. 2.19.1
and 8).
111
Rosc. Am. 21.59–22.60.
112
E.g. Craig (1993), 44.
48
the accusers hoped that Sextus, to gain acquittal, would take the desperate
argument that killing someone proscribed was not by definition murder;
thus he would have been forced into accepting the confiscation of his father’s
estate, while ruining his own character and reputation.113 It is to be
remarked that in his defence of Cluentius, Cicero never suggests that
Oppianicus could have been lawfully killed because of being an outlaw,
under interdictio aquae et ignis; this was not a ‘good’ defence.
Motive, Cicero went on to argue, was always desirable to prove, but so
were other circumstances; with such a serious crime as parricide ‘unmistak-
able traces of the crime must be forthcoming: Where? How? By whose
means? The time at which it was committed? Unless these proofs are many
and evident, surely an act so criminal, so atrocious and so wicked cannot be
believed.’114 Cicero then recounts what must be, in the context, a true story.
Not many years ago, it is said, a certain Titus Caelius, a well-

known citizen of Tarracina, went to bed, after supper, in the same
room as his two grown-up sons, and was found dead in the morn-
ing with his throat cut. As no slave – or free man – could be found
on whom suspicion might have fallen, while the two grown-up sons
who slept near their father declared that they had noticed nothing,
they were indicted for parricide. What could be so suspicious? That
neither of them had noticed anything? That someone had dared to
venture into that room, at the very time when the two sons were
there, who might so easily have seen the crime and offered resis-
tance? Moreover, there was nobody who might reasonably be sus-
pected. However, when it had been proved to the jurors that the
young men had been found asleep when the door was opened – or
sleeping with the door open115 – they were acquitted and cleared of
all suspicion. There was nobody who thought a man could exist
who would be capable of going to sleep immediately after he had
violated laws both human and divine by such an impious crime;
those who have committed such a deed are not only unable to rest
peacefully, but cannot even breathe without fear.116
The Romans do not seem to have recognized the coldness so typical of

psychopaths, but certainly nothing seems to have been alleged about Sextus
that would put him in this category.
113
Stroh (1975), 61–63; Catherine Steel in a private communication. But Alexander (2002)
also finds it over-elaborate.
114
Rosc. Am. 22.62.
115
The Latin, ‘aperto ostio dormientes eos repertos esse’, could equally bear either inter-
pretation; Piso ordered the doors of his bedroom to be shut (Tac. Ann. 3.15.3), which
suggests that bedroom doors would not necessarily be closed.
116
Rosc. Am. 23.64–5; Val. Max. 8.1.13. See Wiseman (1967).
49
After this, Cicero takes up the issue of how Sextus murdered his father.
He cannot have done it in person, for he was 50 miles away. With another
series of (potentially risky) rhetorical questions Cicero asks what agents
Sextus used, slaves or free men; if free men from Ameria, why have they too
not been charged?117 If from Rome, how on earth did Sextus, who for sev-
eral years never went to Rome, and anyway never stayed there more than
three days, make contact? How did he persuade them? If he gave them a
bribe, where did the money come from, and how much was it? This is
something that one would indeed expect to find in a citizen’s financial
accounts; the Romans do seem extraordinarily conscientious on this
point.118 And Erucius himself had described Sextus as a country lout, who
did not spend a night away, even in Ameria, if he could help it. Cicero
prefers the topos of the virtuous country life to that of rustic boorishness,
but in either view Sextus was not well placed to hire killers.
Alternatively, Sextus committed the crime through the agency of his
father’s slaves.119 But Sextus was not in a position to offer these slaves to be
examined under torture, since his accusers had possession of them all. Sextus
had demanded the return of two of the slaves, the two who had been with
his father in Rome, in order that he could have them put to the question,
and two senators, presumably both his advocati (influential men giving
weight to the defender’s case), Publius Scipio and Marcus Metellus, could
testify to this; it would have been their duty to assist at the interroga-
tion.120 But Magnus had refused to hand them over, and they were now in
Chrysogonus’ familia. This was presumably a reward to them for not giving
evidence that would have exculpated Sextus, and possibly implicated the
real killers. ‘Everything in this case, gentlemen, is pitiable and scandalous,
but nothing harsher or more unfair than this can be brought forward, that a
son should not be allowed to put his father’s slaves to the question in regard
to his death.’121 To us it may hardly seem pitiable that slaves could not be
tortured, but the Romans did not accept the evidence of slaves except under
torture;122 there were attempts to regulate the conduct of such interroga-
tions.123 Slaves were not permitted to incriminate their owners or those in a
117
pro Cluentio shows that accusing accomplices before the principal was not out of order; an
accomplice was normally equally liable with the principal.
118
Cf. Pliny, Ep. 2.11.23; 3.9.13.
119
Rosc. Am. 28.77.
120
As we see in Cicero, Clu. 63.176–77; 65.182–84, they might formally witness a state-
ment so gathered.
121
Rosc. Am. 28.78.
122
D 48.18.1.1, Ulpian; cf. 48.18.13, Mod; see generally Robinson (1981), also Strachan
Davidson (1912), II 126–28; this was based only on custom, although there was both
statutory and juristic development.
123
D 48.18.1pr, Ulpian citing Augustus, an interrogation should not begin with torture; nor, as
Hadrian wrote, was evidence given thus always to be believed; 48.18.1.21, Ulpian citing
Trajan, condemning the use of leading questions; also 48.18.7, Ulpian; 48.18.20, Paul.
50
relation akin to ownership.124 However, it was long accepted that someone

could offer his own slaves to prove his innocence;125 it was their torture at
the instance of an accuser that was forbidden. An owner could torture his or
her own slaves, as Sassia did after Oppianicus’ death, and have witnesses
testify to their evidence.126 Also, the slaves of a disputed inheritance could
be tortured, because their owner was dead, and they did not yet have a new
owner;127 on Magnus’ own argument that Roscius had been proscribed, this
would be a relevant argument. Indeed, when an owner of slaves died in
mysterious circumstances, the whole slave household was normally put to
the question,128 and when it was upon a journey, those slaves who were
with him.
Cicero’s counter-charge
There is one paragraph in the speech which suggests that Erucius added to
the murder charge another of peculatus.129 This, I think, must be ironic,
since only senators, and senators holding public office at that, would have
been liable at this period.130 One must suppose that he was implying that
Sextus was withholding some of his father’s property that now was the
state’s; the actual liability in such a case would presumably fall under one of
the proscription statutes. Cicero then moved on to the attack, suggesting
that Magnus and Capito were far more likely than Sextus as the killers of
Roscius. Cassius Longinus, consul in 127 BC, had always asked ‘cui bono?’.
Well here it is clear, says Cicero. Sextus is reduced to beggary, and Magnus
enjoys the fruits of Roscius senior’s property. Magnus had formerly been a
poor man, and an enemy of Roscius senior. Now he had become rich by
entering into a partnership with a perfect stranger to gain possession of the
fortune of a kinsman and fellow-townsman. Who was more likely to kill?
The enemy? Or the son? The major weakness of this argument is that at the
actual moment of the killing, Sextus would have expected to inherit.131 In
the troubles – when of course Sulla had been too busy to know of evil
124
D 48.18.1.5 and 16, Ulpian; 48.18.15.2, Call.; PS 1.12.3. An exception was made,
because of the usually domestic locus of the crime, for charges of incest during the
Republic, and, in later times, of adultery.
125
As did Piso in AD 20 (Tac. Ann. 3.14.2). It is forbidden in D 48.18.18.7, Paul, and in CJ
9.41.7, AD 286, but in this rescript it seems to be feared that they would accuse; in CJ
4.20.8, AD 294, it is permitted. An accuser might not offer slaves from his own house-
hold, according to the divi fratres (D 48.18.1.3, Ulpian); presumably the fear here is that
they would say what they had been instructed to say.
126
Cicero, Clu. 63.176–77; 65.182–66.186.
127
D 48.18.17.2, Papinian.
128
Cic. ad fam. 4.12.3; this was the custom that lay behind the SC Silanianum of (?) AD 10.
129
Rosc. Am. 29.82.
130
Briefly, Robinson (1995b), 81–82.
131
As pointed out by Kinsey (1985a).
51
deeds – men had taken revenge on their enemies and recuperated their for-
tunes. Cicero could talk at length about that. Not only had Magnus the
motive, he also had the opportunity. Roscius was killed in Rome, and
Magnus was in Rome; although, Cicero admits, so were many others.
Cicero then returns to the facts.132 Roscius was killed in the evening,
returning from supper. The news of Roscius’ death was brought to Ameria
before daybreak by Mallius Glaucia, Magnus’ client and familiaris. He
brought the news to Capito (which certainly exculpates Capito from murder
by his own hand), even though Roscius had a house, a wife and children
(presumably daughters) at Ameria,133 and many other kinsmen and friends.
Glaucia’s was an extremely rapid journey, all through a sleepless night. The
distance is more than 50 miles from Rome; Arpinum was somewhat farther,
closer to 60 miles, and when travelling comfortably the Cicero household
would take three days for that journey.134 Cicero is not – perhaps – accusing
Glaucia of personally committing the murder; his concern is with who
planned it. But if Glaucia did not do the deed, how did he know about it so
quickly? Why should Magnus want Capito informed so soon? Cicero does
not know, but, and we are back with innuendo again, Capito is in posses-
sion of three of Roscius’ farms. Capito’s murders are notorious – a very
vague statement, of course. Further, Capito has been fed his testimony by
Erucius; evidence given by one among the accusers is tainted. Looked at
objectively, it could well be that Glaucia knew how to find the house of
Capito but not that of Roscius; he could have preferred to tell Capito so
that a kinsman would break the news to Roscius’ widow. He could have
brought the dagger which had done the deed because it might have pro-
vided a clue. On the other hand, the extraordinary speed does remain sus-
picious. There seems to be no need for it, unless a plot had already been
made to make use of the death, with the alliance of Chrysogonus, which
would suggest very quick, and dishonest, thinking, but does not imply
murder by Magnus or at his instance.
Then there comes Cicero’s second version of how the news was brought to
Chrysogonus at Volaterrae;135 the presumption must be that it was by or
through Magnus, still, in this version, four days after the death. Chrysogo-
nus saw to it that Roscius’ property was sold at once, although he had no
idea who Roscius was. Who could have told him but some fellow-townsman
of the dead man? Betrayal in those days was generally by neighbours and
false friends, says Cicero, truthfully enough. Magnus and Capito, like other
132
Rosc. Am. 34.96; he has already said this in 7.19.
133
The widow is not otherwise mentioned. The house in Ameria had been seized. Did she
too seek refuge with Caecilia Metella, or did she return to her own family? She was
clearly not in court to support her son (or possibly stepson), but at least, unlike Sassia
with her son, she was not hostile to him.
134
Shackleton Bailey (1971), 3.
135
Rosc. Am. 36.105–37.108; cf. 7.20–8.21.
52
Roscii, had hereditary patrons among the great men of Rome, but they had
made themselves clients of Chrysogonus. To whom else did Chrysogonus
grant shares in this property? Nobody; it was split three ways. And why
should Chrysogonus reward these two if they had not performed a service
for him?
Then, when the Amerians felt concern about Roscius’ fate, Capito was on
the deputation to Sulla. He prevented them getting to Sulla; he revealed
their purpose to Chrysogonus; he warned Chrysogonus of the need to safe-
guard their hold on Roscius’ property; he advised going about things
quietly; he guaranteed to his fellow-townsmen that the proscription would
be undone.136 What a false friend, what a treacherous mandatary, says
Cicero, as much to the rest of the delegation as to Sextus. It seems a little
strange that the delegation should have had not the least suspicion of
Capito’s wickedness, their fellow decurion, if his hostility to his kinsman
Roscius senior was well-known, or if his reputation was as bad as Cicero
makes out. But perhaps their courage was failing them in the vicinity of
Sulla, or perhaps they were bribed to go away, and they are unlikely to have
wanted to risk much for such an unsociable man as Sextus Roscius junior.
And Capito may well have been a convincing talker.
The slaves of Roscius

Cicero returns to the issue of the slaves. The defence had frequently asked
for the two slaves to be put to the question. Magnus had always refused,
although no interrogation concerning him was proposed, or indeed could
lawfully have been conducted. But the request was reasonable, and made by
great men, a Scipio and a Metellus. Magnus’ refusal amounted, says Cicero,
to a confession. Cicero does not know if they were guilty or innocent, but
their ‘honourable’ treatment by Magnus shows that they must know some-
thing which would ruin Magnus if revealed.137 For the slaves had been
there when Roscius was killed. Anyone who wished them interrogated
wanted the truth; someone who refused the interrogation must want the
truth concealed.138 Obviously, they cannot have killed the father at the son’s
order, or the prosecution would have alleged this. If the death was pre-
meditated, they might have been bribed to kill, or merely not to defend their
owner. It is also very possible that Roscius was killed by casual, unidentifiable
muggers, and that the slaves were fearful because they had not prevented his
death.139 They could have gone at once to Magnus, because he was after all
136
This version, Rosc. Am. 38.109–10, seems more plausible than that in 9.25–26, and
explains why Capito should have been given three farms outright.
137
Rosc. Am. 41.119–20.
138
Rosc. Am. 42.123.
139
Certainly after the SC Silanianum, and by custom at this period, they could have been
executed for this failure (D 29.5.1.31, Ulpian).
53
a kinsman and fellow townsman of Roscius senior, with the news of the
killing, whether or not they realised their plight. If Magnus was no mur-
derer but an extremely quick-witted man, who saw at once how to turn the
situation to his advantage, then keeping the slaves out of the way would
help avoid publicity until the takeover of the farms had been arranged. But
I do find the refusal to allow their being put to the question a distinctly
suspicious feature of the prosecution’s behaviour.
Roscius’ estate
Cicero then moves to the third objective in his speech, saving Sextus from
the power of Chrysogonus. Chrysogonus bought up Roscius’ estate. How was
Roscius’ estate available? Of course, such a sale of the property of an innocent
man was always shameful, but it had been happening all the time; Roscius’
case was in this respect no worse than many others – which was undoubt-
edly true. The law, Valerian or Cornelian, put up for sale the property of
those who had been listed as proscribed – of whom Roscius was not one –
or who had been killed in adversariorum praesidiis140 – and Roscius had been
of the Sullan party. He was killed in time of peace, returning from supper. Only
if he was slain in accordance with the law could his property lawfully be
sold up. The proscription lists were closed on 1 June 81. Roscius was killed
months later. So either the sale was not executed through the public records, in
which case it was a purely private enterprise, or it was done through the public
records, but only by falsifying them. Sextus was more worried about his life
and reputation than his fortune, but it was still a matter worth pursuing.
So, why was the property of an optimate sold up? Why was it sold up
many months after 1 June? And why was it sold at so low a price? These
were clear indications of dirty work at the crossroads. And Chrysogonus was
the one with extravagant needs, with his fine house, or rather ‘a manufactory
of wickedness and a lodging-house of every sort of crime’.141 Cicero did not
find fault with punishing the populares who fought against Sulla, or with
rewards to faithful followers, but the war was not fought to enrich the base.
Chrysogonus had excessive power, excessive because it was not a power
given by the laws, but simply sprang from the influence and wealth of a
former slave, a power which the optimates could and should curb. But these
arguments were Cicero’s own, not his client’s.142
Sextus cared far more for his reputation and his life than his fortune,
Cicero repeated. Further, the statute laid down that their fathers’ properties
were not to be restored to the children of the proscribed.143 Sextus’ very
140
‘Within the enemy’s stronghold’ (Rosc. Am. 43.126).
141
‘officina nequitiae et deversorium flagitiorum omnium’ (Rosc. Am. 46.134).
142
Stressed also by Gruen (1968), 269f.
143
Rosc. Am. 50.145.
54
food and clothes were the gift of Caecilia, a gift from one of the nobles,
from one of Sulla’s side. Caecilia was caring for his domestic affairs, while
young Messalla144 had undertaken the conduct of his affairs in the forum
and the court, as far as it was possible for one so young. Sextus’ hope lay in
the sense of justice of the jurors hearing this case, senators all. Let them
banish cruelty from the state, and restore pity. Cicero’s appeal to the jurors
in this speech was based on the need for reconciliation, after such a long
series of wars and massacres, of which Sulla’s, as has been pointed out, was
only the latest.145 It was also based on the appeal to senators to discourage
the influence of a mere freedman, even if he was Sulla’s freedman. The issue
of the sack as the penalty for parricide brought out a fine purple passage,
which he later acknowledged was rather too purple. The message hammered
home, however, was the importance of the rule of law. The case of Sextus
Roscius, like that of Cluentius, had the dreadful background of the Social
War and the civil wars ending in the Sullan proscriptions; memories
impossible to eradicate burned in the hostility between Sextus and his cousins,
as between Cluentius and Oppianicus. The legal issues raised by these pro-
secutions were not irrelevant, but nor was the simple question: whose side
were you on? The senators, as leaders of society, could, and should, restore
peace, defending due process, and the genuineness of Sulla’s legal reforms.
Pro Roscio was a speech tailored for the year. To my mind, it is pretty
unlikely that Sextus arranged the murder of his father; his rural isolation,
agreed by both sides, and the fact that it was the prosecution which refused
to produce the slaves accompanying Roscius senior, weigh heavy. But it
seems even less likely that Sextus recovered the whole estate, despite his
probable acquittal, since few, if any, courts would be willing to upset the
property settlements of the recent years. This was, however, a trial con-
ducted according to the proper formalities, an accused charged with a
definable crime, and a defence permitted to be made. It is for us a recog-
nizable world, unlike that of the Bacchanalian affair.
144
Depending on which Messalla, he will have been consul in 61 or 53 BC.
145
Hinard (1985), 152.
55
Chapter 3
THE TRIAL OF CN. CALPURNIUS
P I S O I N AD 2 0
The trial before the Senate of Cn. Calpurnius Piso senior for his part in the
death of Germanicus and for (other) treasonable activities is the trial recor-
ded at greatest length by Tacitus; unfortunately he omits many details that
would have been of the highest legal interest. Nevertheless such extensive
treatment is in itself significant for our view of the political nature of
Roman attitudes to penal practice and penal policy.
The sources
Tacitus is, as usual, concerned in this account to show the dark side of
Tiberius’ character, perhaps even to equate him with Domitian.1 Of the first
treason trials, it has been said:
We cannot avoid the conclusion that in his account of the two

maiestas cases in AD 14 Tacitus has so shaped and coloured the
description by his own view of later events as to lose all claim to
historical objectivity. . . . Where there is room for doubt Tacitus’
procedure is always the same: he admits that it exists, and goes on
to write as if it did not.2
In our attempts to weigh the degree of Tacitus’ prejudice, it seems to me

relevant that the Piso affair happened when it did, as early as AD 20. While
it seems likely that Tiberius did suffer a psychological, or physiological,
crisis that turned him from an austere, reserved, conscientious ruler of rather
gloomy temperament into a paranoid tyrant, this was not until AD 26, when
he retired to Capri, or later (perhaps not even until 31 and the fall of Seja-
nus, the first senator executed simply at the emperor’s order). Therefore I am
1
Syme (1958), 422. One must remember that Tacitus was a senator who reached the con-
sulship, and the governorship of Asia; he knew from first hand how opaque might be the
processes of government. His innuendos were not those of a simple or uninformed man.
2
Walker (1960), 91, 108.
56
THE TRIAL OF CN. PISO CALPURNIUS
inclined to look for a normal rather than a sinister interpretation of his

actions, and to accept that he was indeed trying to keep separate his private
and public persons, and that he truly grieved for Germanicus. This would
not exclude the existence of tensions between the emperor and his adopted
son, arising perhaps as much from differences of character as of policy.
And there is no reason to doubt that there was feminine manoeuvring
within the imperial family, that Livia, Augustus’ widow and Tiberius’
mother, favoured Plancina, wife of Piso, and disliked Agrippina, wife of
Germanicus,3 and that she brought influence to bear to ensure Plancina’s
pardon. Plancina, after all, was only a woman; she was no threat to the well-
being of the state, and poisoning Germanicus could not be laid at her – or
anyone’s – door.
In the late 1980s some copies, one almost complete, were found in Bae-
tica (southern Spain) of an inscription recording the resolutions of the
Senate on the trial and suicide of Piso and the trials of his son, his wife and
his associates, the SC de Cn. Pisone patre (SCPP). This can act as some sort of
control on Tacitus’ account, just as epigraphic and literary evidence were
paired in the chapter on the Bacchanalian affair. In this case, however, it is
safe to infer that Tacitus knew the contents of the original senatusconsultum,
so the SCPP is not in that sense independent evidence, but provides a
sidelight on Tacitus’ historical methods. Furthermore, the SCPP also has its
own sub-text.
Germanicus and Piso

To start with an outline of the facts as we are given them by Tacitus. On 10
October AD 19 Germanicus, grandson of Augustus’ wife Livia, nephew
and adopted son of Tiberius, and brother of the future emperor Claudius,
died in mysterious circumstances while governing the eastern provinces
with maius imperium. He was given this office in AD 17 because he was
Tiberius’ heir, and it had become customary under Augustus that the
emperor’s heir should get experience of government in the eastern part of
the Empire; this had been the case for Agrippa, Gaius Caesar, and Tiberius
himself. The king of Cappadocia had just died in Rome of natural causes;
Cappadocia (in eastern Asia Minor, adjoining Syria, Parthia and Armenia)
needed to be integrated into the Roman Empire as a province. Relations
with Parthia, the only other great power in the western world, were often
tense. Armenia was the buffer state between the two empires, and Germa-
nicus would need to deal with the uneasy political situation there.4 Piso had
3
Ann. 2.43.3–6. (In this chapter I shall cite simply Annals, without Tacitus.) Although the
brothers, Germanicus and Drusus, were good friends, enmity was also rumoured between
Agrippina and Livilla, Drusus’ wife.
4
Ann. 2.43.1–2.
57
THE TRIAL OF CN. CALPURNIUS PISO
at the same time been made governor of Syria, in succession to Creticus

Silanus. Silanus had been in post for nearly six years; further, his daughter
was betrothed to Germanicus’ son, and so Silanus was unsuitable as a
counter-weight to Germanicus, if one were needed. Piso was of dis-
tinguished background. His father had been a supporter of the republican
party against Julius Caesar and the triumvirate, but Augustus had even-
tually induced him to accept a consulship in 23 BC. ‘Our’ Piso had shared
the consulship with Tiberius in 7 BC. There are various reports of his
incautiously independent behaviour in the Senate in AD 15 and 16.5 Tiber-
ius, however, seems to have viewed him as a trusted friend, and as a man of
weight. Piso was the emperor’s, not Germanicus’, legatus in Syria, but he
was also appointed as Germanicus’ adiutor. Tacitus reports that Piso was
certain that the purpose of his appointment was to act as a check on Ger-
manicus;6 this is not impossible, as Tiberius may have been a little appre-
hensive of Germanicus’ thirst for military glory. It was also rumoured that
Plancina, Piso’s wife, was being urged by Livia to make life difficult for
Agrippina, wife of Germanicus.7
Tacitus tells us that Piso and Germanicus met briefly on the island of
Rhodes, while Piso was on his way to Syria.8 Once on station, in AD 18,
Piso is reported as having set to work to destroy military discipline;9 this
seems both uncharacteristic and pointless. Furthermore, and less implau-
sibly, Piso was contumacious, if not actually mutinous, for, ordered by
Germanicus under his maius imperium to come with part of his army, or to
send it with his son, to Armenia, Piso did neither.10 Piso and Germanicus
were clearly on bad terms in winter quarters, established that year at
Cyrrhus in northern Syria, and this ill-feeling was fanned by some of Ger-
manicus’ friends.11 In the following year, AD 19, Germanicus went off to
visit the antiquities of Egypt and nearby parts;12 Tiberius was angered by
this breach of the convention established by Augustus that no senator
should visit Egypt without specific imperial leave.13 It remains doubtful
whether Germanicus thought this covered by his imperium maius, though
surely his remit had been made clear,14 or if he simply thought of himself as
5
Ann. 1.74.6; 1.79.5; Dio Cassius 57.15.9; Tac. Ann. 2.35. In the last instance, Piso held
that Tiberius’ absence was all the more reason for the Senate not to adjourn, but to con-
duct business in the public interest.
6
Ann. 2.43.4.
7
Ann. 2.43.3–6.
8
Ann. 2.55.3–4; Tacitus implies there was already deep hostility between them.
9
Ann. 2.55.5–6; Goodyear (1981), ad loc. cit. wonders if Piso had a mental breakdown.
10
Ann. 2.57.1. Piso could have had his reasons.
11
Ann. 2.57.2–4.
12
Ann. 2.59.1; 2.60–61. His fondness for such visits had been amply shown during his
journey out to the East (Ann. 2.53–54). See also Hennig (1972); Weingartner (1969).
13
Ann. 2.59.2–3.
14
Weingartner (1969), 33–46.
58
above such rules; in the latter case one sees why Tiberius might have wanted
a reliable friend in the vicinity. In his absence Piso altered the disposition of
the troops.15 Again, this might be construed as a breach of military dis-
cipline, or even sedition, but Piso did have imperium, and the commander-
in-chief was away. When Germanicus learned of this, there were violent
reciprocal denunciations, and Piso determined to leave Syria; had he done so
without authorization he would certainly have been liable under the lex
Iulia maiestatis.16 Then Germanicus fell ill while returning from Egypt, and
Piso postponed his departure, which would seem to be a proper course of
action in the interests of Rome. Having received news of Germanicus’
improvement, Piso moved from Antioch to a town on the coast.17 But then
Germanicus had
a relapse – aggravated by his belief that Piso had poisoned him.

Examination of the floor and walls of his bedroom revealed the
remains of human bodies, spells, curses, lead tablets inscribed with
the patient’s name, charred and bloody ashes, and other malignant
objects which are supposed to consign souls to the powers of the
tomb. At the same time agents of Piso were accused of spying on
the sickbed.18
Germanicus, however, was well enough to write to Piso, renouncing his

friendship,19 and almost certainly ordering him out of the province; at any rate,
Piso left Syria for the island of Cos.20 Suetonius’ version extols Germanicus’
leniency:
15
Ann. 2.69.1.
16
It would amount to deserting imperium exercitumve (D 48.4.3, Marcian).
17
Ann. 2.69.2.
18
Ann. 2.69.3: ‘saevam vim morbi augebat persuasio veneni, a Pisone accepti; et reper-
iebantur solo ac parietibus erutae humanorum corporum reliquiae, carmina et devotiones,
et nomen Germanici plumbeis tabulis insculptum, semusti cineres, ac tabe obliti; aliaque
maleficia quis creditur animas numinibus infernis sacrari. simul missi a Pisone incusa-
bantur ut valetudinis adversa rimantes.’ Zäch (1972) thinks Dio Cassius (57.18.9–10)
more likely to have used the same sources as Tacitus than to have copied him when he
says: ‘[Germanicus’] death occurred at Antioch as the result of a plot formed by Piso and
Plancina. For human bones that had been buried in the house where he dwelt and sheets
of lead containing curses together with his name were found while he was yet alive; and
that poison was the means of his carrying off was revealed by the condition of his body,
which was brought into the Forum and exhibited to all who were present. Piso later
returned to Rome and was brought before the Senate on the charge of murder by Tiberius
himself, who thus endeavoured to clear himself of the suspicion of having destroyed
Germanicus; but Piso secured a postponement of his trial and committed suicide.’
19
Ann. 2.70.1 The SCPP, ll. 28–29, remarked that Germanicus ‘non inmerito amicitiam ei
renuntiasse’; cf. Rogers (1959).
20
Ann. 2.70.2.
59
[W]hen Piso was annulling [Germanicus’] decrees and maltreating

his dependants, he could not make up his mind to break with him,
until he found himself assailed also by potions and spells. Even
then he went no farther than formally to renounce Piso’s friendship
in the traditional fashion (more maiorum), and to bid his household
avenge him, in case anything should befall him.21
But Germanicus did not get better. On his deathbed he accused Piso and
Plancina of at least hastening, and perhaps of complicity in, his death –
killed by a woman’s treachery (muliebri fraude cecidisse). He requested his
friends to protest to the Senate and to invoke the law; sympathy would lie
with the accusers of Piso, whose defence would be either unbelievable or
unforgivable.22 His body was on view before his cremation in Antioch; ‘it is
uncertain if the body showed signs of poisoning’.23
After Germanicus’ death

The legates and other senators in Germanicus’ entourage then had to resolve
the question of who should take over the Syrian command, something
which suggests that Piso had indeed left under orders; this was decided in
favour of Cn. Sentius Saturninus rather than Gaius Vibius Marsus. Mean-
while, Publius Vitellius, Quintus Veranius and others among Germanicus’
retinue had already begun to prepare charges against Piso and Plancina. ‘At
their demand, Sentius dispatched to Rome a woman called Martina, who
was notorious in the province as a poisoner; Plancina was very fond of her.’24
Agrippina took ship for Rome with her children and her husband’s ashes.25
Piso was still at Cos when he heard of Germanicus’ death, and he was
alleged to have made celebratory sacrifices in the temples there;26 Plancina
at that time resumed normal dress after mourning a sister27 – which, to say
the least, was bad timing. Piso, we are told, wondered about whether he
might return to Syria, urged by numbers of centurions (presumably from
the army there), and take back command.28 His son Marcus tried to
21
Suet. Cal. 3.3.
22
Ann. 2.71. It seems not impossible that Germanicus had a high fever, and may even have
been hallucinating.
23
Ann. 2.73.4.
24
Ann. 2.74: ‘isque infamem veneficiis ea in provincia et Plancinae percaram nomine Mar-
tinam in urbem misit.’
25
Ann. 2.75.1.
26
The temples were closed as a sign of mourning; see SCPP, ll. 64–65.
27
Ann. 2.75.2.
28
Ann. 2.76.1. This was a specific offence under the lex Iulia maiestatis – D 48.4.3, Mar-
cian). In view of these centurions, and the many deserters mentioned later (Ann. 2.78.2;
2.80.1) – the army in Syria was in a state of some confusion, if not worse.
60
discourage him from such plans, on the grounds that his quarrel with
Germanicus had done nothing so far to earn punishment, only unpopularity,
and that his return to the province might well provoke a civil war.29
Domitius Celer, however, one of his closest friends, persuaded him that he
was the lawful governor, approved as such by the emperor.30 Piso therefore
set out, after writing to Tiberius complaining of Germanicus’ conduct and
his own expulsion from his province.31 A warning message from Vibius,
second-in-command in Syria, urging him to return to Rome, was treated
with disdain; Piso replied that he would appear when cited before the
praetor de veneficiis.32 He and Domitius with their troops failed to disturb
Sentius, who warned him that his conduct was treasonable;33 Piso was
defeated in a minor battle, and sent back to Rome with a naval escort and a
safe conduct.34 This seems an excellent illustration of the political sensitiv-
ity. Piso had been taken in arms against a Roman army, but he had been
Tiberius’ appointment; further, it was normal to do no more than put
accused members of the upper classes under house arrest. Even so, Piso’s
treatment was obviously respectful; he was able on this voyage to tour Asia
and Achaea, and visit Drusus, Germanicus’ younger brother, in Illyricum.35
Meanwhile, at Rome, on the news of Germanicus’ death there were
extraordinary scenes of general grief,36 and then many honours were paid to
the dead man.37 Tacitus, however, says that Tiberius could hardly conceal
his delight at the news; this presumably means that the emperor was his
usual taciturn self.38 Before the end of the year Agrippina arrived in Rome,
after a dangerous winter voyage and a solemn journey through Italy, with
the ashes of her husband.39 The ashes were deposited in the Mausoleum of
Augustus; this was not a funeral, and quite properly was not treated as such
by the emperor,40 but it gave rise to popular indignation. After this, the
29
Ann. 2.76.2–3.
30
Ann. 2.77.
31
Ann. 2.78.1.
32
Ann. 2.79.1: ‘Marsusque Vibius nuntiavit Pisoni ‘‘Romam ad dicendam causam veniret’’.
Ille eludens respondit ‘‘adfuturum ubi praetor qui de veneficiis quaereret reo atque accu-
satoribus diem praedixisset’’.’
33
Ann. 2.79.2–80.2.
34
Ann. 2.80.3–81.3.
35
Ann. 3.7.1; 3.8.1–2; 3.9.1.
36
Ann. 2.82; 3.1–2 and 4–5. It is somewhat reminiscent of the bizarre manifestations of
grief over the death of Diana, Princess of Wales.
37
Ann. 2. 83; Suet. Cal. 5–6. The Senate met on 16 December, and then at another session,
to decree the formal honours; see Gonzalez (1999).
38
Ann. 3.2.3.
39
Ann. 3.1–2.
40
Ann. 3.3 and 3.6. See Woodman and Martin (1996), 98. The funeral, although sine ima-
ginibus et pompa, had already been held; it would be contrary to sacral law to repeat it.
61
thoughts of many turned to seeking retribution from Piso, who had still not
returned to Rome, and was said to be suppressing the proofs of his crimes.
‘For it had become known that the notorious poisoner, Martina, sent to
Rome – as I have mentioned – by Sentius, had suddenly died at Brundi-
sium, with poison found hidden in a knot of her hair, and that her body
bore no signs of suicide.’41 Piso sent his son, Marcus, on ahead, and himself
arrived at Rome, probably in June of AD 20. He voyaged up the Tiber,
landed by the Mausoleum, and then went cheerfully with Plancina and a
large escort to dine festively at his house overlooking the Forum.42 At this
point, before we move to the account of the trial of Piso, it is suitable to
consider the crime of which Piso was soon to stand accused.
Treason
Treason was undoubtedly the appropriate crime with which to charge Piso.
Treason is in one way the fundamental crime; it is an attack on the organi-
sation of society. Naturally it is a crime with a long history at Rome, going
back to the time of the kings; it was the crime with which the assembly
trials, iudicia populi, were largely concerned. Perduellio was the old term, the
term for high treason, such as the betrayal of Rome or things Roman to an
enemy in arms; maiestas, more properly crimen laesae maiestatis populi romani,
the crime of diminishing the majesty of the Roman people – or of the
emperor – was essentially an internal matter. Further, treason is bound to
have a political flavour, and this was certainly, and inevitably, true for the
way in which the trial of Piso was handled. Treason had moved some way
into the field of law with the statutes which established and affirmed the
standing jury-court, the quaestio de maiestate, originally by the lex Appuleia,
probably of 103 BC, and certainly confirmed by Sulla. Augustus’ lex Iulia of
8 BC superseded all its predecessors, and we have direct citation of some of
its sections.43 Treason, as explained in a simple treatise of the late third
century, comprised taking up arms against the state, waging war or levying
troops without authorization, leading armies into ambush, or desertion;
moreover, it covered words as well as deeds.44 The range of crime was wide,
from high treason, the deliberate betrayal of one’s country to an enemy,
through disloyal behaviour by one in authority, and so to lese-majesté, the
diminishing of the honour of the emperor and his family. Tacitus alleges
41
Ann. 3.7.2: ‘Nam vulgatum erat missam, ut dixi, a Cn. Sentio famosam veneficiis Mar-
tinam subita morte Brundisii exstinctam venenumque nodo crinium eius occultatum nec
ulla in corpore signa sumpti exitii reperta.’
42
Ann. 3.9.2–3. The exact site of the house is disputed, but the SCPP, ll. 105–08, ordered
the demolition of what Piso had built over the porta Fontinalis to join his private houses.
43
Cloud, (1963).
44
PS 5.29.1. See also Chilton (1955); Bauman (1967) and (1974); Robinson (1995), 74–80.
62
that treason was regularly added as an aggravating charge to such accusa-

tions as res repetundae (extortion) or adultery – omnium accusationum com-
plementum.45 Yet in Piso’s case, the focus of the story was more on the
ambivalent death of Germanicus than on mutiny, sedition and treason.
Delators46
On the day after Piso’s arrival in Rome, L. Fulcinius Trio, ‘a talented but
unscrupulous prosecutor’ who had previously demanded a Senate inquiry
into Libo’s astrological interests,47 applied to the consuls for leave to accuse
Piso. Trio appears reasonably typical of the tribe of delatores which Tacitus so
detested as a pest, even a danger, to society. We have seen in chapter 2 how
prosecution was regarded as a necessary but morally dubious activity. The
growth in the number of delators seems partly an unintended result of Augustus’
laws supporting marriage and the family, but earlier the Sullan proscrip-
tions must have had something of the same effect.48 These Augustan laws
failed to popularize marriage and the raising of families, but

increasingly many people were liable to penalties since every
household was exposed to informers’ claims. . . . There were spies,
encouraged by inducements from the Papian-Poppaean Law, under
which failure to earn the advantages of parenthood meant loss of
property to the state as universal parent. The spreading encroach-
ments of the informers grievously affected all citizens, whether in
Rome, Italy or elsewhere, and caused widespread ruin and universal
panic.49
Yet, naturally, both Tacitus and his readership were more concerned with
the prosecution of treason than of more domestic lapses. Of the delator
45
Ann. 3.38.1. There were other cases in this period. Clutorius Priscus suffered for writing
an elegy for Drusus, who was still alive, as well as for Germanicus, who was not (Ann.
3.49–51). An eques called Ennius was charged with treason for melting down a silver
statue of the emperor and reusing the silver, but Tiberius stopped the proceedings (Ann.
3.70, probably referred to in D 48.4.4.1, Scaevola), where the statues are described as
reprobatas; in 48.4.6, Ven. Sat., however, we find the melting down of a statue that had
been consecrated brought under the lex Julia on treason.
46
For recent substantial treatments of delators, see Rutledge (2001); Rivière (2002).
47
Ann. 2.28.3 and 2.32.1; Scribonius Libo Drusus was alleged to have plotted to seize the
throne after reading various astrological predictions. After his suicide following on a
treason charge in AD 16, his property had been divided among his accusers. Libo was
almost certainly a fatuous fop rather than a wily plotter, but nevertheless dangerous.
48
Robinson (1995), 100; Robinson (2006); the lex Voconia seems also to have been fruitful
for delators; for the earlier period, see, e.g. Cicero, 2 Verr. 1.47.123–24.
49
Tac. Ann. 3.25 and 3.28.3.
63
Romanius Hispo he remarked: ‘Over one man he enjoyed an ascendancy; all

others loathed him. His was the precedent which enabled imitators to
exchange beggary for wealth, to inspire dread instead of contempt.’50
Another, Domitius Afer, brought accusations against Claudia Pulchra of
adultery, attempted poisoning of the emperor, and magic; he was later to
accuse her son. ‘After long poverty Afer had made money and misused it,
and it surprised no one that he now had further infamous designs.’51 Dio
could say that under Tiberius all who accused any persons received money,
and large sums too, both from the victims’ estates and from the public
treasury, as well as various honours.52 Suetonius praised Titus for dealing
severely with delators, who seem in his account to have been excluded from
the protection of the lex Iulia de vi;53 although many delators in Tacitus’
portrayal were senators, those suffering under Titus were probably humble
delators to the fisc.54 They were a pest under Domitian, so Pliny praises
Trajan for having exiled delators rather than senators and filled the punish-
ment islands of the Mediterranean with these scourges,55 but his remarks on
the delatores of his day suggest that the problem, although still real, was less
concerned with senatorial accusers than it had been.56 However, although
the Romans never developed a state prosecution service, attitudes to prose-
cution did change; there came to be restrictions on the power to make
accusations,57 and the presumption was introduced that an informer with-
out a personal interest was a calumniator.58 Further, the disappearance of the
ordo as it was replaced by the universal cognitio of provincial governors (and
of the Urban Prefect in the City) allowed a governor to act ex officio on a
report, or rumour, rather than subsequent to a formal accusation.
The trial
Preliminaries to the trial

A request such as Trio’s was becoming normal procedure for a trial before
the Senate; it echoed the application for permission to prosecute made to
the praetor (or other president) of a standing jury-court (quaestio perpetua) –
50
Tac. Ann. 1.74.
51
Tac. Ann. 4.52.1 and 4.66.1.
52
Dio Cassius 58.4.8. But see Rogers (1934).
53
Suet. Titus 8.5.
54
See Rivière (2002).
55
Pliny, Pan. 35.2; cf. 42.1.
56
E.g. Pliny, Ep. 1.5; 5.13.6–8.
57
Under the Tetrarchy in FIRA i 94, p. 458; later, CTh 9.5.1, AD 319–23; 9.7.2, AD 326.
See also Giglio (2002).
58
PS 5.13.1–2. In the Later Empire prosecutions might originate with the authorities, but
this was linked with what we would call an inquisitorial approach rather than implying
the existence of a separate branch of government. See further on procedural offences in ch. 4.
64
the procedure Piso had earlier mocked. Publius Vitellius and Quintus Ver-
anius objected that Trio had no interest; however, they described themselves
not as accusers but as witnesses bearing Germanicus’ instructions, despite
their having already in Syria begun preparing charges against Piso and
Plancina, and having requested that Martina be sent to Rome. Again, it was
normal with the ordinary procedure before the quaestiones that, where pos-
sible, the principal accuser should be the man with the greatest interest; the
rule was that there should be one principal, even if he were to be joined by
several associates.59 Trio withdrew his charge – dimissa eius causae delatione, a
charge of murder presumably – but obtained leave to accuse Piso of earlier
crimes. At this stage the emperor was asked to take over cognizance of the
case – cognitionem exciperet,60 but it is not clear at whose initiative – perhaps
that of the consuls? (It may even be significant that on two occasions we
find Tiberius exercising his detective faculties, once later in the same year,
when he interrogated Quirinius’ slaves when Aemilia Lepida was on trial,61
and more dramatically in AD 24, when he visited the scene of the crime after
Plautius Silvanus had thrown his wife Apronia out of the window.62) But,
whether or not for political reasons, as Tacitus alleges, Tiberius referred the
case back to the Senate.63 Piso then set about finding advocates to represent
him. Tacitus mentions five men of standing, presumably among the leading
orators of the day, who declined on various grounds, but Piso’s brother, L.
Calpurnius Piso the augur, with M. Aemilius Lepidus and Livineius Reg-
ulus, agreed to support him.64
There then probably followed a gap of several months. The historians
have considerable problems about the dating of the whole episode, and
indeed about Tacitus’ methods of narrative generally.65 The problem was
brought into prominence by the discovery of the SCPP and by its date of 10
59
In the ordo the case was argued before the full quaestio perpetua (Cicero div. Caec. 1.1–2.6;
Ps. Asc. p. 99; Cicero II Verr. 1.6.15). Erucius was the principal prosecutor in ch. 2. D
48.2.16, Ulpian, must refer to cognitio.
60
Ann. 3.10.1.
61
Ann. 3.23.2; Tiberius himself seems to have discovered, through interrogation of the
slaves, that she tried to poison her husband, as well as introducing a suppositious child
into his family.
62
Ann. 4.22.2.
63
Ann. 3.10.3: ‘haud fallebat Tiberium moles cognitionis quaque ipse fama distraheretur,
igitur paucis familiarium adhibitis minas accusantium et hinc preces audit integramque
causam ad senatum remittit.’
64
Ann. 3.11.2. It was normal before the quaestiones perpetuae for the accused to be represented
by more than one advocate, while the prosecution was primarily conducted by one man;
so ordinary procedure is echoed here before the Senate.
65
Woodman and Martin (1996), 67–77. See also Champlin (1999), Talbert (1999) and
Flower (1999); Levick (1983), 113f, thinks Tacitus quite capable of jumping six months
forward and then back.
65
December, but the length of time which passed is largely irrelevant to the
legal issues. An interval of weeks, or even months, would have been normal
in a quaestio trial; Cicero had 110 days to collect evidence against Verres.
There is no need to doubt that extraordinary procedure before the Senate or
emperor commonly mirrored the norms of the ordo. This interval was for
both sides to collect their witnesses and assemble their proofs.66
The opening of the trial

Finally there came the day of the Senate’s meeting, the first of its meetings
for the trial of Piso. Tiberius seems to have been presiding, since he directed
the Senate’s attention to the questions they must consider. It is not quite
the same as the speech recorded in the SC, a speech which is explicitly
stated to have been made after Piso’s death a week or so later. However, it is
by no means impossible that Tacitus used the Senate’s records to help con-
struct the speech he narrates. Anyway, at this stage Tiberius said that he,
with the authorisation of the Senate, had sent Piso to be Germanicus’
assistant in the administration of the East. Whether Piso had been insu-
bordinate and quarrelsome there, and had rejoiced at Germanicus’ death, or
had even brought it about by poison, were the allegations of which the
truth must be ascertained;67 the unsurprising implication was that Piso was
guilty of something. If Piso had behaved unbecomingly, and rejoiced at the
death of his superior, Tiberius would formally renounce his friendship and
close his doors against him, but would not use his public powers to avenge
private wrongs. If, however, there was evidence of murder, a crime needing
vengeance whatever the victim’s rank, it was for the Senate, as a court, to
satisfy Germanicus’ children and his parents – that is, the emperor.68
Further, inquiry should be made as to whether Piso had incited his troops to
mutiny and rebellion, bribed them, and sought to recover his province by
force of arms, or whether these were falsehoods spread and exaggerated
by his accusers.69 Tiberius had found the accusers over-zealous; stripping
Germanicus’ body and exposing it had only served to encourage the report
that he was poisoned, a matter still to be ascertained. While he grieved for
his son, and always would, he must not deny the accused every opportunity
to prove his own innocence, and indeed any unfairness on the part of Germa-
nicus.70 He finished by urging both defenders and accusers to their best
efforts. In only one respect was Germanicus’ case being dealt with outside
66
The presence of documents and witnesses is mentioned in the SCPP, ll. 24–25, and Ann.
3.17.
67
Ann. 3.12.1.
68
Ann. 3.12.2.
69
Ann. 3.12.3. See the sections of the lex Iulia maiestatis cited in D 48.4.1.1 and 48.4.2,
Ulpian.
70
Ann. 3.12.4–5.
66
the normal course of the law: the trial was before the Senate not a quaestio
perpetua.71 By the time of Pliny, as we shall see in the next chapter, cognitio
before the Senate had become regulated.
The prosecution
The prosecution was then allotted two days for the conduct of its case, and
the defence, after an interval of six days, three. This was the normal pro-
portion of time allocated to the two sides in trials under the ordo;72 it was
still being observed in Pliny’s time in trials before the Senate modelled on
the ordo, although modification was possible.73 The Senate’s resolution does
not give precise figures.74 However, clearly the trial was extra ordinem; the
rules governing trials before the standing jury-courts were being somewhat
bent, because Trio opened the prosecution with charges of extortion when
Piso was governing Spain years before.75 Tacitus calls these charges old and
empty, but attacks on and evidence as to character played an important part
in Roman criminal trials; furthermore, while avaritia was a stock charge,
ambition was relevant to the present case. This illustrates the main advantage
of the cognitio procedure before the Senate – or the emperor, and in due course
his delegates. A charge of res repetundae could not, in theory, have been heard
before the same quaestio as a charge of treason or of poisoning, for in principle
each quaestio perpetua heard only one specific form of charge; thus in this case
three separate trials should have been necessary under the ordo.76 (It is, how-
ever, probable that the quaestio de maiestate was already falling into desue-
tude, at least for senators; Libo had been tried for treason before the Senate
as early as AD 16.77) Since the charges arose from one set of inter-related acts,
justice was more likely to be achieved if they were dealt with at the one trial.
Veranius and Vitellius, together with Q. Servaeus (another of Germanicus’
companions in the East), laid accusations against Piso of inciting sedition
among his troops, insubordination, and lastly of killing Germanicus by
spells and poison (devotionibus et veneno), alleging that then, ‘after his and
Plancina’s evil rites and sacrifices (sacra hinc et immolationes nefandas ipsius
atque Plancinae)’, he had made war on the res publica.78 Vitellius further
argued that Germanicus must have been poisoned since his heart would not
71
Ann. 3.12.6–7: ‘super leges praestiterimus quod in curia potius quam in foro, apud
senatum quam apud iudices de morte eius anquiritur.’
72
Asconius, in Milon. 36C.
73
Pliny, Ep. 4.9.9.
74
SCPP, ll. 23–24.
75
Ann. 3.13.1: ‘ambitiose avareque habitam Hispaniam’.
76
Cf. D 48.2.14, Paul: ‘the Senate has ruled that a person cannot be charged on account of
the same crime under several statutes’.
77
Ann.2.27–32.
78
Ann. 3.13.2; cf. SCPP, ll. 45–57.
67
burn; but Piso’s defence was that neither would organs which were naturally
diseased.79 Here, in the acceptance of three prosecutors rather than one, we
find a distinct variation from the ordinary procedure of the quaestiones.
The defence
Tacitus makes no mention of events during the six-day interval, but moves
straight from the prosecution’s case to that of the defence. He states that
there was no effective defence to the charges of corrupting the troops,
harming the province, and insubordination. But the poisoning charge was
refuted, particularly the allegation that, at a dinner given by Germanicus,
Piso who was sitting next to him, had himself put poison into his host’s
food. Piso offered his own slaves for interrogation under torture.80 Tiberius
was convinced by now that Piso was guilty of treason, in that he had invaded
Syria under arms despite a warning from Sentius, his successor as governor.
The Senate remained unconvinced that Germanicus had died naturally, even
though the prosecution had failed to prove its case.81 Outside the senate
house a mob was demonstrating against Piso, threatening to lynch him and
actually dragging his statues to the Gemonian Steps, where the bodies of
criminals were rolled into the Tiber,82 but Tiberius had them put back,
presumably motivated by the need to maintain public order.83 Piso was
given a litter and an escort by a tribune of the Praetorians to get him home
safely, or perhaps, as Tacitus says, to see that he died.84
There is a lacuna in the text between Tacitus’ report of the views of the
senators and his account of the popular clamour.85 The text suggests that
certain letters were being demanded, presumably by the Senate, and not
produced, but it is not clear what these were, although the appearance of
letters in the trial is confirmed in the SC.86 Quite a few letters had been
mentioned in the course of Tacitus’ narrative: Germanicus’ letter to Piso,
renouncing his friendship and (presumably) ordering him from his province,
Piso’s letters to Tiberius, complaining of Germanicus’ behaviour, Sentius’
letter to Piso, and allegations of ‘secret’ mandates to Piso from Tiberius – as
79
Pliny HN 11.71.187. Zäch (1972) reports that he sought and obtained confirmation of
Piso’s contention from the professor of forensic medicine in Zürich; also the foam from
Germanicus’ mouth and the dark spots all over his body, described by Suetonius
(Cal.1.2), could equally be symptoms of disease or of poisoning.
80
Ann. 3.14.1–2. We have considered slaves’ evidence, always under torture, in ch. 2.
81
Ann. 3.14.3.
82
E.g. Sejanus and his children (Dio Cassius 58.11.5–6); Vitellius (Dio Cassius 64.21.2).
83
Ann. 3.14.4.
84
Ann. 3.14.5: ‘vario rumore custos saluti an mortis exactor sequeretur’.
85
Woodman and Martin (1996), 159–62.
86
SCPP, ll. 24–25, 38–39.
68
regards the last, it would be surprising if someone sent to govern a province

was not given confidential imperial mandates. Of these, the Senate would
hardly have demanded to see Tiberius’ private correspondence; Sentius’
letter would have been irrelevant to the murder charge; we are told in the
SC that Germanicus’ letters were in fact produced at the trial. Therefore it
seems most likely that the letters referred to are Piso’s to the emperor. The
Senate hoped that his complaints against Germanicus in these letters would
strengthen the murder charge by revealing personal hatred, but Tiberius
preferred not to disclose them as they amounted to poison-pen letters. But
this can only be conjecture. The SC thanks the princeps because ‘he made
available to the Senate everything necessary for seeking out the truth’.87
Piso’s end
Whatever had happened, Piso returned to the Senate on the second day
allotted to the defence, disheartened, according to Tacitus, by the fact that
Plancina, in the expectation of a pardon, had already dissociated herself from
her husband.88 Tacitus refers to renewed accusation, hostile voices and uni-
versal enmity, but presumably there were further speeches for the defence,
since the SC records that the case was argued for several days by the accusers
and by Piso himself.89 There was presumably also the examination and
cross-examination of witnesses. Tacitus describes the silent emperor, deaf to
the emotional appeals of both sides, as terrifying rather than reassuring
Piso.90 He returned home in despair at the implacability of his judges, and
then, according to the SC, committed suicide; it is not clear whether he did
this because of the hostile atmosphere or because the evidence had been
damning. Tacitus’ version is more detailed, and loaded.
On his return home, he wrote a few words, as though considering

the next day’s defence, sealed the note and gave it to a freedman.
Then he performed his usual toilet; late at night, when his wife had
left the bedroom, he ordered the doors to be shut. At dawn he was found
with his throat cut, a sword lying beside him on the ground.91
The normality of his behaviour could be due to his being in shock, or it

could well be his adoption of traditional Stoicism, a Stoicism suitable for a
Republican of noble birth and achievements.
87
SCPP, ll. 15–16.
88
Ann. 3.15.1.
89
Woodman and Martin (1996), 160, hold that this description is due to Tacitus’ impres-
sionism, to be interpreted ‘not as an otherwise unexplained return to the formal prose-
cution but as a resumption of the personal hostility’.
90
Ann. 3.15.2.
91
Ann. 3.15.3.
69
Tacitus prefers to imply that he was murdered. He reports that it was

known that Piso had a document (libellus), which was often seen in his
hands, which contained letters from Tiberius with instructions relating to
Germanicus; Piso would have disclosed its contents, and thus convicted the
emperor, if he had not been deceived by Sejanus.92 The mention of Sejanus
is almost certainly merely the start of scene-setting by Tacitus for the next
major episode in the Annals. Certainly the political aspect was sensitive.
Piso clearly could not make the defence that the emperor had appointed
him to check Germanicus, although there was nothing inherently sinister in
such an instruction; equally clearly, a transcription would have had little
evidentiary value, and ‘in any case the likelihood of Tiberius’ having incri-
minated himself either in writing or orally is nil’.93 Tiberius himself must
have been regretting his bad judgment in that Piso, his old friend, had been
his own choice for the job, yet had undoubtedly acted treasonably, and must
now be disowned and discarded. But it is not plausible to believe that he
had wanted an overt quarrel, involving actual hostilities, between his heir
and his friend, because it served no purpose, damaged Roman prestige, and
in the event led to a (fortunately very minor) civil war.
Subsidiary trials
Despite Piso’s death, the Senate met again, presumably on the following
day, the third provided for the defence. It would have seemed pointless to
stop the trial at this stage, when the full truth might still emerge.94
Moreover, Marcus and Plancina had also been indicted, as well as certain
members of Piso’s staff. Hence the SC records that Tiberius had asked the
Senate to give judgment on what case there had seemed to be against Cn.
Piso, whether he appeared deservedly to have killed himself, what case there
seemed to be against Marcus Piso (to which he added that the senators
should be mindful of his own prayers for the young man), what case there
seemed to be and on what grounds against Plancina, for whom Tiberius had
earlier petitioned, and what should be done with Visellius Karus and Sem-
pronius Bassus, Piso’s companions.95
Tacitus tells us that Tiberius questioned Piso’s son96 on his father’s beha-
viour during that last day and night. Thereafter he read Piso’s statement
92
Ann. 3.16.1; so too Suet. Tib. 52.3.
93
Woodman and Martin (1996), 171; ‘The passive contineri implies that Piso had tran-
scribed any original litterae and mandata into his libellus.’
94
On the question of whether treason charges ended with the death of the accused, see D
48.4.11, Ulpian, which applies this only to perduellio, not the maiestas of the Julian law;
however, armed invasion of a province would indeed appear to be perduellio.
95
SCPP, ll. 4–11.
96
No name is given in Ann. 3.16.2; Cnaeus, the elder son, seems more likely than Marcus,
who was not yet a member of the Senate.
70
(codicillos), which must be what Piso had written the previous night, whe-
ther as notes for his advocates, or for himself. Piso expressed himself as beset
by enemies, falsely charged – he could reasonably play the injured innocent
as regards the poisoning, and his own assertion of defence against the trea-
son charges may have been that he had not legally been deprived of his
governorship – and always loyal to the emperor and his mother; pleading
that loyalty to Augustus’ family, he requested that no harm should come to
his older son, Cnaeus, who had been in Rome all the while his father was in
the East, nor to Marcus the younger, who had tried to dissuade him from
attacking Sentius. No mention was made of Plancina.97
Perhaps at the same session, perhaps later, Tiberius exonerated Marcus, or
rather, as the SC specifies, proposed his exoneration from the charge of
making civil war, on the grounds that he had a duty to obey his father’s
orders. He also expressed regret for the noble family and Piso’s sad end,
whether or not it was deserved.98
Two days were spent on the investigation of Plancina; it is not clear
whether it was a formal trial. She had originally been protesting loyalty to
Piso, but Livia’s promises led her to dissociate herself from him.99 Tacitus
here puts in a vicious couple of sentences, accusing Tiberius and Livia of
aiming at the destruction of Germanicus’ family, and protecting Plancina.
He implies that her trial was a sham,100 with her being assured of pardon.
Her sons did not speak on her behalf, despite the emperor’s encourage-
ment,101 so her accusers went unanswered. But clearly there can have been
no more proof of poisoning in her case than in Piso’s, and she cannot, as a
woman, have been guilty of, or even charged with, his treasonable activities,
because, at least under the ordo, such charges were applicable only to men
holding office, and their staffs. Yet the SC records that numerous weighty
charges had been lodged against her; one must suppose either that the
extraordinary procedure allowed consideration of her public conduct, such as
attending cavalry exercises,102 or that most of them were irrelevant to the
ongoing trial of her husband. The SC also states that Livia used her influ-
ence over the Senate very sparingly, but since she had pleaded for Plancina,
the punishment of Plancina should be remitted – remittiq[ue] poenam Plan-
cinae. This wording contrasts with the Senate’s conclusion concerning
Marcus, to whom inpunitatem . . . dandam esse{t}.103
97
Ann. 3.16.3–4. Cn. Piso junior became consul in 27, and was Urban Prefect at the end of
Tiberius’ reign; his son became consul in 57. Marcus incurred no penalty, but disappeared
from the view of history.
98
Ann. 3.17.1; SCPP, ll. 100–01.
99
Ann. 3.15.1.
100
Ann. 3.17.3: ‘biduum super hac imagine cognitionis absumptum’. Cf. Marshall (1990).
101
SCPP, ll. 20–22.
102
Ann. 2.55.6.
103
SCPP, ll. 100–01 and 119–20.
71
The sentences
Presumably at the end of these two days, one of the consuls, Aurelius Cotta,
was asked to make the first recommendation to the Senate; he proposed that
Piso’s name should be deleted from the calendar, the fasti consulares, that half
his property should be confiscated, with Cn. Piso junior keeping the other,
but compelled to change his praenomen – in the event he became Lucius, like
his uncle – that Marcus should be deprived of the latus clavus and relegated
for ten years but allowed 5 million sesterces, and that, on the plea of Livia,
Plancina should be pardoned.104 According to Tacitus – the SC records
neither Cotta proposing nor Tiberius intervening – Tiberius mitigated the
penalties. He left Piso’s name on the fasti, since even the names of Marcus
Antonius, and his son Iullus Antonius, remained there;105 Marcus Piso was
not to be stripped of his rank, nor relegated, and was allowed his paternal
inheritance.
There is a degree of divergence between Tacitus’ account of the penalties
and those recorded in the SC. In the SC we find it held that Piso did not
suffer as he deserved by dying,106 so the Senate voted that there be no
mourning for his death by the women of his family, that his statues and
portrait masks, wherever displayed, be removed,107 that no portrait mask of
him was to be carried in family funeral processions, that his name be
removed from the inscription on the statue of Germanicus in the Campus
Martius, and that his property, except the lands in Illyricum (which were to
revert – on grounds of ingratitude, presumably – to Tiberius since Augustus
had presented them to Piso), was to be confiscated.108 However, half the
confiscated property was to be granted to Cnaeus Piso the younger, who was
advised, being so favoured, to change his praenomen. Marcus was given
immunity, and granted the other half of his father’s estate; 5 million ses-
terces from the whole estate were reserved for Calpurnia, Piso’s daughter,109
1 million as her dowry, the rest as her personal property (peculi [sic]
nomine).110 Finally, the curatores locorum publicorum were to see to the demo-
lition of the structure erected by Piso over the porta Fontinalis to join his
private houses.111
104
Ann. 3.17.4. Plancina did, however, come to her fate in AD 33 (Ann. 6.26.3).
105
Piso’s name was, however, removed from a record of the celebration of games by Tiberius
and Piso as joint consuls (CIL VI 385 with 30751) and perhaps also in the Acta Arvalium
(CIL VI 2023a, 21) where there is indeed an erasure, but the name erased could as well
have been that of Libo Drusus.
106
SCPP, ll. 71–73.
107
Cf. D 48.19.24, Modestinus; see also Flower (1998).
108
SCPP, ll. 73–90.
109
There is a conflict of opinion among the historians as to her identity; Eck et al. (1996),
83ff and 218ff, and Flower (1999) think she was Piso’s granddaughter.
110
SCPP, ll. 93–105.
111
SCPP, ll. 105–08.
72
The SC, but not Tacitus, also records that Visellius Karus and Sempronius
Bassus, two of Piso’s comites, as socii and ministri in all his crimes, were to be
exiled, more specifically, ‘that they should be interdicted from fire and water
by the praetor who had charge of the jury-court for treason’, and that all
their property was to be confiscated.112 This appears to be a case of the
Senate advising or instructing a magistrate how he should proceed. There is
no need to envisage a jury empanelled; the praetor, as president of the court,
could pronounce the sentence laid down by the statute, even when the proof
of the crime had been led elsewhere. But this does suggest that the quaes-
tiones perpetuae were still regarded as the normal courts of criminal law, the
iudicia publica. The penalty was the statutory one for treason under the lex
Iulia, and Roman criminal law normally imposed the same penalty on
accomplices as on the principal. Piso was held manifestly to have ignored
the authority of one with maius imperium, to have stirred up the enemies of
Rome in Armenia, to have attempted civil war by returning under arms to
the province of Syria, to have inflicted capital punishment on many whose
cases had been unheard, and even to have crucified a centurion who was a
Roman citizen,113 to have corrupted military discipline, to have maintained
his complaints about Germanicus even after the latter’s death, and to have
rejoiced in that death. The evidence for this last was clear to the Senate: in
that impious sacrifices (nefaria sacrificia) had been made by him, the ships in
which he sailed had been ‘ornatae’ (presumably something like the modern
‘dressed overall’), he had opened temples (at Cos) closed out of piety, he had
given money to the messenger who brought the news, and he had given
frequent banquets in the days after the news had reached him. Piso was also
held guilty of something akin to blasphemy, numen divi Augusti violatum.114
Tiberius vetoed the proposals of Valerius Messallinus and Caecina Severus
for a golden statue in the temple of Mars Ultor or for an altar of vengeance,
on the grounds that such things were appropriate for foreign victories, not
domestic misfortunes. Valerius Messallinus had also proposed formal thanks
to Tiberius, Livia, Antonia (Germanicus’ mother), Agrippina (his wife), and
Drusus (his brother), for avenging Germanicus; the name of Claudius,
Germanicus’ other brother and the future emperor, was added to the family
list only when L. Asprenas pointed out the omission.115 This was done, as
the SC witnesses, with praises for the justice and restraint of Tiberius, Livia
and Drusus. The Senate commended Agrippina, Antonia, Livia the sister of
Germanicus, his children, and his brother, as also the conduct of the
equestrian order, of the populus, and of those soldiers who had resisted Piso’s
112
SCPP, ll. 120–23: ‘aqua et igne interdicti oportere ab eo praetore qui legem maiestatis
quaereret’.
113
Seneca de ira 1.18.3 is presumably recording this occasion, although he does not mention
crucifixion as the penalty.
114
SCPP, ll. 68–70.
115
Ann. 3.18.2–3.
73
solicitations and remained faithful to the family of Augustus. Tiberius’

speech to the Senate and the consequent resolution, specifically a single
decree,116 were to be inscribed and set up where it should please Tiberius,
and also in every leading provincial city and in the winter quarters of each
legion. The SC was a carefully drafted document. It ignored any awkward
questions, such as Tiberius’ own (indirect) responsibility for Piso’s conduct,
and it praised the whole established order, including the Roman people. Yet
one could argue that it also recognized the importance of reconciliation, of
maintaining the social bonds that held together the orders; despite the
individual blot, the Calpurnii Pisones continued to thrive. There is no
reason to doubt that there was a deep-rooted fear of the return of the civil
wars. It was indeed a whitewash, but it is hard to see what else could have
been done.117
Some days later, Tiberius rewarded the three main prosecutors (but not
Trio), not of course with Piso’s estate,118 but by putting them forward for
priesthoods; Trio he promised to help in his official career (and indeed he
became suffect consul in 31), but also warned him to be less aggressive.
Thus ended the vengeance for Germanicus, and Drusus left Rome.119
But was Germanicus avenged? The senatorial tradition continued to
maintain that Tiberius was hostile to Germanicus’ wife and family.120
Despite Germanicus’ own belief and his own allegations, no proof was ever
brought that he was poisoned, and the Senate seems reluctantly to have
accepted Piso’s innocence of active harm. The contumely Germanicus had
suffered from Piso’s insubordination was avenged, but was that really ven-
geance? Was his death in fact natural? Poison was often suspected when
medical knowledge was insufficient to diagnose internal diseases. Was Martina
a red herring? Cursings could have been the work of a disgruntled household
slave, or indeed have stemmed from the machinations of Livia. A mystery
remains. (As a footnote, the affair may well have contributed to the resolu-
tion of the Senate making a governor liable for his wife’s delicts, although
the immediate context was probably the trial of Gaius Silius in AD 24.121)
116
The writing of this SC on 10 December, in the portico of Apollo’s temple on the
Palatine – as good a place as any for the Senate to meet – was witnessed by M. Valerius
Messallinus, C. Ateius Capito, Sextus Pompeius, M. Pompeius Priscus, C. Arrenus
Gallus, and L. Nonius Asprenas and M. Vinucius, the last two being quaestors. 301
senators were present.
117
See Griffin (1997).
118
It is uncertain what the law was on rewards at this time, or indeed whether there was a
rule. In AD 16 Libo’s property was divided among his accusers (Ann. 2.32.1); in AD 24, in
a repetundae case, Tacitus has M. Lepidus say that the law required that a quarter of a
condemned man’s estate should go the prosecutors (Ann. 4.20.2).
119
Ann. 3.19.
120
Not only Tacitus, but also Suet. Tib. 52.3–54; Dio Cassius 57.18.6. Josephus (AJ 18.54)
believed that Germanicus was poisoned.
121
D 1.16.4.2, Ulpian, and Ann. 4.18–20 give different occasions for this SC.
74
The survival of the standing jury-courts

It is clear that the Empire was sufficiently established for all men to expect
the emperor to be concerned with treason charges, even if the Senate was the
forum. Nobody suggests, not even Tacitus, that the quaestio de maiestate
might have been appropriate. The state must protect itself, and juries were
too remote from power, and perhaps still too open to improper influence.
The question of the utility of the jury-courts, and their survival, is relevant
here. The quaestiones perpetuae had been approved by Augustus, who had even
added the adultery court. Tiberius was careful to maintain Augustus’ poli-
cies, so we can assume that they continued as a system in his time, even if
the Senate became the normal forum for senators accused of crimes (and, of
course, for our sources these are the most interesting trials). While all the
maiestas and repetundae trials that we hear of from the start of his reign were
held in the Senate, that does not prove the disappearance even of these
specific quaestiones; they might have continued for subordinate officers and
junior officials, persons too unimportant for the historians. We do explicitly
hear of the quaestio de sicariis in AD 54, and of the quaestio de falsis in AD
61.122 Business before them must have remained reasonably brisk under the
Julio-Claudians, for Augustus had created a fourth decury for the album and
Caligula a fifth; Claudius and Galba chose to lengthen the court year.123
Quintilian, who died in 96, speaks of them as a living institution, and there
is other possible evidence for their survival under Domitian.124
Pliny’s evidence on the survival of the quaestiones perpetuae is unfortunately
unclear.125 Ambiguity remains in the case where a mother, whose son was
dead, was accusing the son’s freedmen, who were joint heirs with her to his
estate, of poisoning him and forging his will.126 The alleged murder of her
son was sufficient to allow a woman to accuse,127 but poisoning and forgery
were quite different charges and could not have been made at the same time
under the ordo.128 This may be why she took her case to the emperor, who
122
Seneca, apoc. 14.1; Tac. Ann. 14.41.
123
A decury was a group of those qualified by wealth and rank to sit as jurors, from which
the numbers selected for the album in a particular year were drawn. Suet. Aug. 32.3;
Claud. 23.1; Cal. 16.2; Galba 14.3.
124
Quint. inst. or. 3.10.1; 11.3.130; Pliny, Ep. 3.9.33: ‘tamquam apud iudicem sub Dom-
itiano Salvi Liberalis accusatoribus adfuisset’ (that [Norbanus] had appeared in court
under Domitian among the accusers of Salvius Liberalis). The iudices mentioned in Suet.
Dom. 8 were almost certainly not the jurors of the criminal courts, but more likely
judges-delegate: ‘nummarios iudices cum suo quemque consilio notavit’ ([the emperor]
degraded judges taking bribes together with each’s council of advisers).
125
Pliny, ep. 4.29 could be talking of a civil iudex selectus, but Nepos’ reappearance as praetor
in ep. 5.9 does suggest a criminal court, since he is a praetor ‘qui legibus quaerit’, and he
is issuing an edict for accusatores and reos.
126
Pliny, Ep. 7.6.8–10.
127
D 48.2.1, Pomponius.
128
As Sherwin-White (1966), 409f, pointed out.
75
accepted the accusation, and she obtained Julius Servianus as judge, judge-
delegate – impetraverat could mean she had asked for him. Pliny defended
the freedmen, and adds: Finem cognitioni quaestio imposuit quae secundum reos
dedit. It seems likely that Servianus was deciding whether the alleged
offences were so closely linked that they could be heard together; once that
was settled, the case may have gone before a quaestio perpetua, which
acquitted. Radice translates this as ‘the inquiry was stopped after the court
had decided in favour of the defendants’, although her note accepts the two
stages. But they could be two stages before the same judge, particularly if
the mother asked for him, as a noted figure. Later she went again to the
emperor, claiming there was fresh evidence, and Suburanus, Trajan’s first
Praetorian Prefect (although he may not have held the office at this time),
was ordered to give a rehearing if there was new evidence – which there was
not. This argues against the use of a quaestio, since there was no question of
an appeal from them, or of setting aside a jury’s verdict; corrupt jurors
might be charged, but the verdict stood.
It would not be particularly surprising if what happened was that the
courts for political crimes disappeared early while those for ordinary offen-
ces, such as adultery, forgery and murder, continued for a while. It may be
significant that the formula given for an indictment is an accusation of
adultery,129 and that so much juristic discussion of adultery is preserved in
the Digest. However, Dio’s remark about his finding so many adultery cases
awaiting trial when he became consul – his suffect consulship of c. AD 204 –
is, if anything, an indication that even that jury-court had fallen into
desuetude, for a consul had no role in the operation of the quaestiones perpe-
tuae.130 Even in civil procedure cognitio was replacing the ordo in the course
of the second century; the change is likely to have happened faster in
criminal matters.131 One possible source of confusion is the changing
meaning of the term ‘iudicium publicum’. At some stage it ceased to mean a
quaestio perpetua and had come (as in Inst. 4.18) to denote merely a criminal
court, or a court hearing a criminal case.
Not even Tacitus suggests that the accusations against Piso were unsus-
tainable in the sphere of state action. Even if Piso had been intended to be a
check on Germanicus, this would not justify disobedience to a lawful
superior – as Tiberius stresses in his plea for Marcus Piso. Suicide was the
proper course for a Roman gentleman whom the fates had condemned, and
Piso was prepared to go so far as to describe his own actions as pravitas.
129
D 48.2.3pr, Paul, but Paul also tells us that the ordo had fallen into disuse (D 48.1.8).
130
Dio Cassius 76.16.
131
Garnsey (1967) held the adultery court did survive until the Severans; Brasiello (1962)
thought the jury-courts only disappeared under Diocletian. My view is that they went
sooner rather than later, and see Robinson (2001) FS Wacke, on the development of civil
cognitio.
76
There is no hint of a reign of terror in this trial. The accusers have not
benefited from the accused, even if they have been rewarded. Intrigues there
may well have been among a small social group, but in spite of Tacitus’
nudges and winks, there seems no reason to find any miscarriage of justice,
or appearance of it.
77
Chapter 4
PLINY AND R E P E T U N D A E TRIALS
BEFORE THE SENATE
In this chapter, as in the next two, we are looking not at one but at a
(linked) series of trials. Here the trials are all for the same offence and before
the same court, but the different cases show different aspects of, and devel-
opment in, both practice and policy.
Tacitus probably thought of himself as above all a writer, who also carried
out the normal functions of a senator. Pliny, however, was something close
to a ‘professional’ advocate. Further, the Pliny we know from the letters
seems a conscientious, truthful man, self-important but hard-working,
somewhat vain but not ungenerous, clearly not given to self-analysis. In this
chapter we are looking at trials in which our author himself took part,
where there is no reason to doubt his account, provided one makes the
natural allowance for partiality.1 He was writing for publication, true, but
in the interests of literary fame, not with an essentially moral objective;
unlike Tacitus, he will not invariably have had a sub-text.
The crime of res repetundae

In this period, under the Emperor Trajan (AD 98–117), most of the criminal
trials of which we hear were before the Senate on the charge of extortion
from the provincials, de pecunia repetunda (or de pecuniis repetundis). Even in
this brief period there were developments in criminal procedure. This
offence had been the subject of the first quaestio perpetua in the mid-second
century BC; the definitive statute governing extortion was the lex Iulia repe-
tundarum, passed by Julius Caesar in 59 BC.2 This, like most such statutes,
laid down its own procedure and its own penalty, almost certainly interdiction
from fire and water,3 and simple restitution from the estate of the
1
In the dating of these trials, I follow Sherwin-White (1966). Ep., without further ampli-
fication, means a letter of Pliny.
2
It was a substantial piece of legislation; Cicero, ad fam. 8.8.3, refers to the one hundred
and first section (caput) of the lex. See Fontenay de Pontette (1954); Robinson (1995b), 81–82.
3
When a citizen went into exile, whether voluntarily or not, he would normally be banned from
hearth and home, deprived of his rights as a citizen to property and even to life, outlawed.
78
PLINY AND REPETUNDAE TRIALS
convicted man.4 The statute was supplemented under Augustus by the SC

Calvisianum, linked with the fifth of the edicts to Cyrene,5 setting up a senatorial
commission, but this dealt mainly with the procedure for estimating the dama-
ges; it became absorbed into the Senate’s overall jurisdiction. Moreover, the
quaestio, the jury-court, seems to have fallen into disuse – at least for senators –
by the start of Tiberius’ reign at the latest, and jurisdiction over res repe-
tundae was exercised by the Senate, or occasionally by the emperor. Nevertheless,
the terms of the lex Iulia remained the basis of the law throughout the Principate.
It covered the making or receiving of any improper exaction from the
inhabitants of a province by anyone holding a magistracy or other office in the
public service, or any violation of public duty following the acceptance of
money;6 the normal element of gain is stressed by the prohibition on usucapion
of things acquired contrary to the statute.7 The element of reparation meant
that the heirs of an accused remained liable (for a year) for any unjustified
enrichment.8 Originally only senators had been liable, but this liability was
extended to the entourage (comites) of a governor or other office-holder,9 and
then to equestrian office-holders in their own right.10 Under Tiberius, the
Senate extended the liability to wives.11 The exaction of monies and other things
also came to cover the acceptance of apparently freely offered presents,12
4
On the arguments about the penalty of the lex Iulia, see still Sherwin-White (1949);
Henderson (1951); Sherwin-White (1952a); Venturini (1979).
5
FIRA i no. 68, p. 409ff.
6
D 48.11.1pr, Marcian; 48.11.9, Papinian.
7
D 48.11.8, Paul.
8
D 48.11.2, Scaevola; cf. 48.1.6, Marcian, where although the penalty has ceased to be
relevant, the judge must deal with pecuniary consequences; 48.2.20, Modestinus.
9
D 48.11.5, Macer; Cicero, Rab.Post. 5.12, of 63 BC, makes clear that equestrians were not
then liable. The sons and other close relations of senators were covered, but not equestrian
staff until the end of the first century AD.
10
Dio Cassius 61.33.6 refers to an imperial procurator, an equestrian but the man in charge
of a province, as possibly liable under Claudius; Tac. Ann. 13.33.1 seems to deal with a
quaestor or legate under Nero; D 49.14.46.2, Hermog. dates from the end of the third century.
11
D 1.16.4.2, Ulpian, who ascribes it to AD 20, when it would presumably have been in
consequence of Plancina’s conduct (see ch. 3); Tacitus, however, ascribes it to AD 24, after
earlier debate in 21 (Ann. 4.20; 3.33–34).
12
The statute excepted presents from very close relatives, second cousins or closer, and wives
(D 48.11.1.1, Marcian) – no mention here of the ban on gifts between spouses! But
nothing at all, not even the smallest amount, was permissible from others (48.11.7.1,
Macer). Presumably Modestinus’ reference (1.18.18) to a plebiscite limiting gifts to the
governor to what he could eat or drink within a day or so (rather like President Truman)
was a reference to the lex Iulia, but Ulpian, 1.16.6.3, tells us that this was concerned with
forage and hospitium, rather than ordinary gifts. Severus and Caracalla allowed moderate
presents; by their period many governors were of provincial origin, and there was no ban
on officials serving in their province of origin, so there must have been need for some
relaxation. In what must be a fairly late development of the law – since the term ‘urban’
is clearly not being restricted to Rome – municipal magistrates were not to receive gifts
or favours in any one year worth more than 100 aurei (48.11.6.2, Ven. Sat.).
79
taking money for military appointments or other seemingly normal exer-

cises of jurisdiction,13 also engaging in trade, including owning commercial
vessels, buying slaves, except as replacements, demanding forage (or allow-
ances in lieu) except when actually on circuit, and other offences of this
sort.14 ‘The very length and complexity of the lex Iulia suggest that it dealt
fully with innumerable types of illegal enrichment.’15
Julius Caesar had extended the liability so as to overlap with constitu-
tional matters, including treason;16 it already seems to have overlapped with
murder in the area of judicial corruption.17 Whether in the statute, or
through its extension and interpretation, the abuses of official power inclu-
ded the taking of money to give or withhold a judgment, or taking a bribe
to do more or less than one’s duty;18 further, and clearly applicable to pri-
vate persons, accepting money to give or withhold evidence fell under the
statute.19 Where the motive was malice, not gain, there was more likely to
be liability under the lex Iulia de vi.20 It seems a convincing explanation
that judicial bribery was added to the scope of res repetundae because that
quaestio was particularly open to bribery, in view of huge sums that might
be involved; this would also explain why corrupt acquittal was covered as
well as corrupt condemnation.21
Proper behaviour by provincial governors was a matter of concern to the
Roman ruling classes in the Republic. There were various motives: that the
overburdened provincials should not be driven to rebellion, that they should
not be so overwhelmed by private exactions that their taxes did not benefit
the treasury, that Roman senators should maintain a good image. Governors
were not expected to be saints, but they should show a decent moderation,
and enforce justice; Verres’ behaviour was contrary to the accepted conven-
tions of his class. Various accusations of repetundae were made in the period
from 26 BC to the end of Domitian’s reign.22 At some stage in the first
century the Senate came to sequestrate the property of somebody convicted
of res repetundae so that realistic claims for reparation could be made.23 This
13
D 48.11.6.2, Ven. Sat.; 48.11.7pr and 2, Macer.
14
D 1.16.6.3, Ulpian; 18.1.46, Marcian; 49.14.46.2, Hermog.; 50.5.3, Macer; 48.11.8.1,
Paul; cf. Cicero II Verr. 1.3.7–9; 4.5.9–10.
15
Brunt (1961), 191.
16
Cicero, Pis. 21.50; 37.90; D 1.16.10.1, Ulpian.
17
Fidiculanius Falcula, a senator, was acquitted in the extortion court of having taken a
bribe from Cluentius in the capital trial of Oppianicus (Cicero, Clu. 37.104).
18
Cicero, Pis. 36.87; D 48.11.3, Macer, and 4, Ven. Sat.
19
D 48.11.6pr, Ven.Sat.
20
D 48.6.10pr, Ulpian, although in the third century Macer held that the motive of rage
could fall under res repetundae (48.11.7.3).
21
Cloud (1994), 514.
22
Brunt (1961), p. 224ff, lists 34.
23
This was done after the conviction of Baebius Massa in AD 93, under Domitian; Ep.
7.33.4. Pliny’s prosecution of him is also briefly mentioned in Ep. 3.4.4 and 6.29.8.
80
meant that injured provincials would seem to have greatly improved their
chances of recovering damages. The area ruled by the emperors from Rome
was being consolidated, and the emperors viewed offences against the pro-
vincials as, at least potentially, offences against their good rule, the dis-
cipline of their times. This chapter is restricted to those prosecutions
brought under Trajan for which we have the evidence of Pliny’s letters,
reporting trials in which he had played a leading part as advocate, whether
for prosecution or defence; thus we can see something of the inner workings
of these cases.
The disappearance of ‘voluntary’ exile

One significant difference between the Republic and the Empire was the
disappearance of the practice of ‘voluntary’ exile and of interdiction from fire
and water. It was replaced by the more formal penalty of deportation, always
permanent, with loss of citizenship and civil rights.24 Provincial governors
did not have the power to deport.25 A milder form of exile was relegation,
with retention of civil rights, even if the sentence was in perpetuity.26
Relegation might be accompanied by a fine or by the confiscation of some or
all property;27 provincial governors had the power to relegate as well as
fine.28 There was no explicit constitutional measure which brought about a
change from voluntary exile to deportation, but in the second century forms
of exile were able to be classified.29 It had in the old days been enough that
exiles must live outside Rome and Italy,30 but Augustus in AD 12 forbade
those interdicted from fire and water to live on the mainland, or on any
island within 50 miles of it (with certain exceptions), and imposed various
other restrictions on exiles’ way of life, such as not having a familia of more
than twenty slaves or freedmen, nor being allowed to possess property worth
more than half a million sesterces.31 (This shows very clearly that it was a
penalty appropriate for the upper ranks of society.) Tiberius removed the
capacity to make a will from those interdicted from fire and water;32 this
applied subsequently to deportation but not relegation. Augustus’ severity
was clearly modified by some later emperor, for we find in these trials under
24
D 48.22.2, Marcian, although the deportee might be allowed to take some property
(under the ius gentium) with him into exile (48.22.15, Marcian); cf. 48.22.16, Marcian, for
a touching case of family loyalty.
25
D 48.22.6pr-1, Ulpian.
26
D 48.22.7.3, Ulpian.
27
D 48.22.4, Marcian; 48.22.7.4, Ulpian; cf. 48.22.1, Pomponius citing Trajan.
28
D 48.22.7.1, Ulpian; cf. ss. 5–16 and 19 on the particularities of relegation.
29
D 48.22.5, Marcian.
30
All Italy south of the Po after the Social War; Caesar extended it to Cisalpine Gaul, all
Italy from the Alps southward.
31
Dio Cassius 56.27.2
32
Dio Cassius 57.22.5; cf. PS 3.4A.9 and 14.
81
Trajan relegation being again used merely to exclude the condemned from
certain places, and, in the juridical sources, their confinement to a particular
province or place.33
The trial of Marius Priscus and his legate

The first trial to be considered is that of Marius Priscus, former governor of
Africa (a province roughly equivalent to present-day Tunisia and the habi-
table coastland eastward). He was convicted in January 100, but the first
stages were earlier; repetundae trials took time, particularly because of the
difficulties of collecting distant evidence.34 On being charged – by only one
city, Lepcis, but also by some individual provincials35 – before the consuls
with simple extortion, probably towards the end of 98, he pleaded guilty,
and applied for a commission under the SC Calvisianum to assess the resti-
tution due. By this time it is clear that the Senate was likely to make a
judicial inquiry before appointing the commission, and for this purpose
advocates needed to be appointed for the provincials. Tacitus and Pliny,
somewhat reluctantly, and only after considerable delays, were assigned by
the Senate to act as patroni for the Africans.36 However, the two of them
informed the Senate that financial compensation was inadequate for the
crimes committed, since Priscus had taken bribes to sentence innocent per-
sons to punishment and even to death.37 To change the grounds of the trial
in this way was out of order, strictly speaking, in that a capital charge
should have been brought by the victims, or their kin or companions. Fur-
ther, there has been argument among modern scholars as to whether the
charge was under the extortion law, or the lex de sicariis, ne quis iudicio cir-
cumveniretur, de vi, or even de maiestate,38 but Pliny himself makes it reason-
ably clear that it was the Julian law on res repetundae because money had
been taken to do the deeds. ‘To show that my accusation was covered by the
law dealing with the extortion of money I had to base my argument on the
analogy of other laws as well.’39 Catius Fronto, acting for the defence, said
that the issue should be limited to compensation – after all, the man had
33
D 48.19.4, Marcian; 48.22.5, Marcian; 48.22.6.8–9, Ulpian.
34
Ep. 2.11, which narrates the case; 6.29.9. Cicero had been allowed 110 days to collect his
evidence against Verres (Ps. Asc. p. 125).
35
Ep. 3.9.4.
36
Ep. 10.3A.2.
37
Ep. 2.11.2; cf. Suet. Galba 9.1. Such doings were classed as saevitia, intolerable brutality,
too serious to be competent under the Calvisian procedure.
38
Fontenay de Pontette (1954), ch. vii, summarizes views to then; subsequently, Bleicken
(1962), 37ff. The case would certainly seem to have fitted within the scope of the lex Iulia
de vi publica (D 48.6.7, Ulpian; PS 5.26.1).
39
Ep. 2.19.8; the letter does not explicitly refer to the case against Priscus, but both Sher-
win-White (1966) and Radice (1969) hold that it must be that speech which Pliny is
proposing to read.
82
pleaded guilty to this section of the law. There was vehement discussion,
‘one side arguing that the Senate’s judicial powers were limited by law, the
other that they were free and unlimited, and that the defendant should be
punished to the full extent of his guilt’.40 It is possible that there had not
been a full-scale extortion trial since that of Baebius Massa in 93.41 The
Senate was already established as having the power to vary the statutory
penalties42 – normally reducing them – but it was still guided by the
leges.43 Deviation from the norms of the ordo needed to be argued for.44
Julius Ferox, consul-elect, proposed that the commission should provi-
sionally go ahead, but that those alleged to have given the bribes to procure
the conviction of the innocent be summoned as witnesses. The Calvisian
procedure was limited to calling ten witnesses already present in Italy, that
is, it was intended to comprise the provincial delegation bringing the
complaint, but this proposal was for a full inquisitio, gathering all kinds of
evidence and able to compel witnesses.45 The two procedures had been
designed to be mutually exclusive, but the exercise of cognitio permitted
such a compromise. Those alleged to have given bribes were Vitellius
Honoratus and Flavius Marcianus, the latter, at least, a decurion of Lepcis,
the city bringing the charge,46 and they duly came to Rome.47 Honoratus
was charged with having bribed Priscus to exile a Roman eques and to put to
death seven of his friends for 300,000 sesterces, and Marcianus with having
paid 700,000 for which another eques had been flogged, condemned to the
mines, and finally strangled in prison.48 Honoratus died (quite likely by
suicide), and so escaped justice. Marcianus appeared before the Senate, but
in the absence of Priscus, whose right to be present was in suspense since he
had confessed to the lesser form of extortion.49 A senator called Tuccius
Cerealis proposed that Priscus should be informed, which must have meant,
summoned to attend. It was indeed only natural justice, says Pliny, that a
charge made against two persons should be defended by both. However,
although based on the same facts, the charges will not have been identical,
since the repetundae law properly applied only to those who took money
while holding office of some sort, and thus to Priscus, while Marcianus had
given, not accepted, money and will therefore have been liable to a charge
40
Ep. 2.11.3–4.
41
Ep. 7.33. Suet. Dom. 8.2 comments on their rarity under Domitian. See Brunt (1961).
42
Tac. Ann. 3.68.
43
E.g. Ep. 4.9.16–17. It was definitely wrong to flout them: 3.9.29–32.
44
Ep. 2.19.8; 3.9.14; 5.20. Cf. 8.14 to Aristo, on a question of procedure in the Senate.
45
Cf. Tac. Ann. 13.43.
46
Ep. 2.11.23.
47
Ep. 2.11.5–8.
48
Ep. 2.11.8.
49
This was normal, but not invariable; see Tac. Ann. 14.18; Ep. 4.9.19. D 48.11.6.1, Ven.
Sat., shows infamy as a general penalty. Ep. 2.11.12 shows that he was present at the
actual trial.
83
either of falsum,50 or of judicial corruption under the murder law, now

extended to cover giving, with malicious intent, false evidence leading to a
capital condemnation.51 Anyway, the hearing was adjourned until the next
meeting of the Senate.52
The emperor, as consul, presided. Pliny spoke nearly five hours, being
allowed four water-clocks to add to his original twelve (there were normally
four to the hour, but it was possible to regulate them to run slower, which
must have been done here). While the governing statute might regulate the
times allowed to the advocates for their principal speeches, there was a
general rule in criminal trials, going back at least to the lex Pompeia of 55
BC, that the defence had half as long again as the prosecution, normally nine
and six hours respectively.53 Pliny was clearly the chief prosecutor; Claudius
Marcellinus replied on behalf of Marcianus. After these speeches the case was
adjourned. Next day Salvius Liberalis spoke for Priscus; Tacitus then replied
for the prosecution, and Fronto finished for the defence, pleading for mercy;
these together took up the second day. The hearing of the evidence, given
after the main speeches as with the ordo, was accordingly postponed to the third
day; such three-day sessions, adds Pliny, were normal in Senate proceedings.54
Cornutus Tertullus, consul-elect, proposed that Priscus be fined the
700,000 he had accepted – Marcianus was fined in that he had no claim to
recover what was given turpi causa55 – and that Priscus should be exiled
from Rome and Italy, while Marcianus should be exiled from Rome, Italy
and Africa. On behalf of the Senate he finished by thanking Pliny and
Tacitus for their efforts, a convention we have seen in the SC de Pisone.
Senior senators supported him, until another consular proposed56 that Mar-
cianus be banished for five years, which suggests that the earlier proposed
sentence was perpetual, or indefinite, and the same fine for Priscus, but no
further penalty other than the consequences of conviction under the Calvi-
sian procedure; this more lenient proposal was eventually, however, heavily
defeated.57
50
As extended by the SCC Messalianum of AD 20 and Geminianum of AD 29: conspiring to
ensnare the innocent (D 48.10.1pr, Marcian; 48.10.9.3, Ulpian; 48.10.20, Hermog. PS
5.25.2 and 13).
51
D 48.8.1.1, Marcian; 48.8.3.4, Marcian.
52
Ep. 2.11.9–10.
53
Ep. 4.9.9; Cicero, Flacc. 33.82; 3 and 2 hours in Dio Cassius 40.52.2; see also Cicero, II
Verr. 1.25; Tac. Ann. 3.13.1, when the same proportions were observed in the trial of Piso;
Tac. Dial. 38.1–2. This allocation only applied to the principal speeches; the production
of evidence and the examination and cross-examination of witnesses went on as long as
necessary.
54
Ep. 2.11.14–18.
55
D 12.5.3, Paul.
56
There were rules laid down in Augustus’ lex de senatu habendo about the order of making
proposals at the more formal stages of the Senate’s procedure; see Talbert (1984), 240–48.
57
Ep. 2.11.19–22.
84
That was the end of the principal trial, but Priscus’ legate, Hostilius
Firminus, was also implicated. It was proved from Marcianus’ accounts –
these were necessarily open to the prosecution’s inspection – as well as from
a speech made by Firminus himself before the Lepcis council (which illus-
trates that there was no problem with hearsay evidence, although it might
have less force), that Firminus had aided Priscus in his extortions, and had
also bargained with Marcianus for 200,000 for himself – 10,000 of which
was paid under the disgraceful entry of ‘cosmetics’ (unguentarii)! But since
Firminus, whether from ignorance or guilt, was not present, his case was
referred to the next session (a week or so later) of the Senate.58 This too
appears to show the Senate taking to itself powers of jurisdiction where no
formal accusation had been made. Admittedly his guilt had been proved,
but only obiter. Pliny reports that Firminus appeared before the Senate as
manifestly guilty, but that there was disagreement between the consuls-elect
as to his sentence, one proposing to expel him from the Senate – in effect an
exercise of censorial powers rather than a criminal penalty59 – the other to
leave him in the Senate but exclude him from the drawing of lots for pro-
vinces, meaning all forms of office, not just governorships. The latter pre-
vailed, and Pliny remarked on the apparent leniency and actual severity of
losing the privileges (or gains) of senatorial rank but not its duties; never-
theless, he held it wrong for one so censured to remain among those who
censured him and to be able to sit in judgment on others accused of offences
of which he had himself been found guilty – but then, that was how a
majority had voted.60 It could be argued that the Senate had at least taken
some steps of its own accord to control the wrongdoing of its members.
There is no mention of Priscus’ other two legates, which one would have
expected, as three was the normal number for the proconsular provinces of
Africa and Asia.61
In a letter following a request for him to give a private recital of what
was almost certainly this speech, Pliny explains that he had argued by ana-
logy that crimes under the law on judicial corruption were also covered by
the law dealing with the extortion of money. ‘This cannot have any appeal
for the ordinary man, but its interest for the professional should be pro-
portionately greater for the lack of it for the layman. It is certainly my
intention, if I agree to this reading, to invite all the legal experts.’62 This
seems an interesting example, perhaps typical, of senatorial development of
the law.
58
Ep. 2.11.23–24.
59
Sometimes used by the emperor; Tac. Ann. 2.48.3; 11.25.5–6. Cf. Ann. 3.69.1, for the
trial for extortion of Silanus in AD 22.
60
Ep. 2.12.1–5.
61
Sherwin–White (1966), 171; perhaps they were virtuous, perhaps dead.
62
Ep. 2.19.8.
85
The trial of Classicus and his companions

The next case, not long after, perhaps late in AD 99 or in 100, concerned the
complaint of the whole province of Baetica (southern Spain), represented by
the concilium provinciae, against Caecilius Classicus.63 Pliny had represented
Baetica in 93 against Baebius Massa;64 he seems to have continued to have
patronal ties with the Baeticans, and so agreed after some protests to
represent them; he also needed imperial leave to be absent from his post as
Prefect of the Treasury. He was the more ready to appear for them because
Classicus was now dead; Pliny explicitly states that he was much happier
about taking the case because of the impossibility of that most painful fea-
ture of a criminal trial, the downfall of a senator.65 This also makes clear
that the other accused were not senatorial. Pliny felt that his having
undertaken three prosecutions, of Baebius Massa, Marius Priscus, and now
Classicus, might relieve him from any further duty of prosecution – still a
problematic duty.66 Classicus himself could not be prosecuted for extortion,
but he had had accomplices in his misdeeds, and they were still alive to
answer charges.
Classicus had been governor of Baetica in the same year (AD 97–98) as
Priscus was governor of Africa; his rapacity was matched only by his bru-
tality. There was a wry Baetican joke: ‘I got as bad as I gave’, since Classi-
cus’ origins were in Africa and Priscus’ in Baetica.67 He seems to have
committed suicide to avoid prosecution.68 There never appears to have been
any question of using the Calvisian procedure, but his death may have led
to a referral back to the provincial council, sometime between September 99
and 100. Despite his death, the Baetici continued their action. The norm
was that, while a dead man could not be subjected to a criminal charge –
only in cases of treason were criminal charges ever brought against a dead
man in the Principate – in the case of repetundae, where the main issue was
that of restitution, and a man’s heirs were liable for any unjustified enrich-
ment of his estate, it was good law to allow proof of the crime, although,
says Pliny, the practice had lapsed quite a while ago.69
63
Ep. 3.4, and 3.9; 6.29.8.
64
Ep. 7.33.4–8; 6.29.8. Ep. 7.33 tells us that Massa’s property was sequestered after his
conviction. When Massa tried to recover it, Senecio, Pliny’s fellow prosecutor, argued the
necessity of its custody until the Baetici were satisfied. Massa claimed that Senecio’s pro-
secution was malicious and threatened an action for calumny, so Pliny said that since he
himself was not so threatened, he must be guilty of collusion – neat.
65
Ep. 3.4.7.
66
Ep. 3.4.8. Compare the discussion of prosecution as a duty in ch. 2, and of delators in ch.
3.
67
Ep. 3.9.2–3.
68
Ep. 3.9.5.
69
Ep. 3.9.6; lex Acilia, tab. Bembina, v.29 (FIRA i 7, p. 84); D 48.2.20, Modestinus; cf.
48.11.2, Scaevola.
86
The provincials extended their action to bring charges against his comites,
and Casta, his wife, as well as Classicus himself. Such liability was no longer
exclusively senatorial; equestrian procurators exercising independent com-
mand had become liable, just possibly even as early as the time of Tiber-
ius,70 but the prosecution of equestrian cohortes seems new.71 Each charge
needed investigation, so a complex and lengthy case ensued. Pliny was chief
advocate for the Baeticans, assisted by Lucceius Albinus. Pliny and Albinus
feared that ‘the combined influence of the individuals concerned might
procure for each the effect of the whole, and, finally, that the influential
might make scapegoats of the humble, and so escape at their expense’. Pliny
and Albinus therefore arranged that there should be three separate actiones,
each occupying a senatorial session, and therefore spread over some four
weeks, because of the separation.72
The first essential was to prove Classicus’ guilt, as being necessary for the
conviction of accomplices. This was easy as he had left accounts in his own
hand, with receipts for business deals and court cases, plus a letter (a file
copy presumably) to his mistress in Rome, boasting that he had sold up the
Baetici and made 4 million.73 Baebius Probus and Fabius Hispanus, whose
names had been coupled with Classicus’ as defenders in the indictment,
were more difficult to convict, says Pliny, since they were men of influence,
in Rome as well as the province; clearly they were Roman citizens though
not senatorial.74 Their defence was superior orders, and Pliny had to prove –
successfully in the event – that carrying out wrongful orders was criminal,
even by provincials in awe of a governor. This case, he says, set a
precedent75 – but is this because the subordinates were equites, not senators,
or because this case actually established acting under orders as an insuffi-
cient defence? The Senate decreed that all the property which Classicus had
owned before his appointment to Baetica was to be set aside, and given to
his daughter – there were presumably no other children – while the fruits of
his office were – without multiple damages – to be returned to the pro-
vincials, even recalling what he had recently paid to his creditors. His
creditors must have been seen as beneficiaries of unjustified enrichment, but
the process presumably involved in integrum restitutio, so they would be able
70
Tac. Ann. 4.15 on the conviction in the Senate of a procurator of Asia in AD 24, but he
was properly Tiberius’ personal agent and had exceeded his powers; Ann. 13.30 records a
prefect of the fleet committing suicide to avoid conviction in 56. Pontius Pilate was sent
back to Rome by Vitellius, then governor of Syria, to account to the emperor for his
misdeeds, but we do not know if he would have faced formal criminal charges – Josephus
AJ 18.88–89.
71
Here; also D 48.11.1pr, Marcian.
72
Ep. 3.9.7–11.
73
Ep. 3.9.13. Four million sesterces was only a tenth of what Verres had extracted from
Sicily, but it was still a serious sum.
74
Ep. 3.4.7. They are not otherwise known, except from this case.
75
Ep. 6.29.
87
to claim against the estate. Probus and Hispanus were both relegated for
five years; this was a fairly serious penalty, particularly as they, and their
advocate, had not expected the defence of superior orders to fail.76 Then, a
few days later, Claudius Fuscus, Classicus’ son-in-law, and Stilonius Priscus,
who had been tribune of a cohort77 under Classicus, were charged; Priscus
was relegated from Italy for two years, and Fuscus acquitted.78
There was then an unexpected turn to the proceedings.79 One of the
witnesses, presumably from Baetica,80 brought a charge of collusion (prae-
varicatio) concerning Casta, Classicus’ wife, against Norbanus Licinianus,81
one of the official representatives of Baetica (and clearly someone with
influence in Rome) and indeed one of those who had been commissioned to
collect evidence.82 While the law laid down that allegations of procedural
offences should be heard after the principal crimes had been tried,83 in this
case Norbanus’ past history of profitable support for Domitian counted
against him; he had been made a commissioner not for his honesty but for
his animus against Classicus, by whom indeed he had been relegated after
Domitian’s death.84 Perhaps too, the suspicion of collusion had already
arisen out of the trial of Classicus’ misdoings, although it was then specifi-
cally alleged of Casta’s trial. Norbanus, reasonably, asked for a day to be
appointed for his trial, and for specification of the charges, but these were
refused him – a serious example of injustice on merely political grounds.85
He was obliged to defend himself on the spot, and against other charges as
well as collusion. This put Pliny and Albinus into an awkward position. It
was from Norbanus that they, as advocates and patroni, had received their
76
Ep. 3.9.12–17.
77
Which sort of cohort is not specified. Sherwin-White (1966), 234, thinks it refers to
another urban cohort, such as those sometimes stationed at Lyons or Carthage (and there
were others, judging from their numbering), but the tribunes of these were usually pro-
moted centurions, not likely comites.
78
Ep. 3.9.18.
79
Ep. 3.9.29–32.
80
A hostile witness, says Pliny, hostile whether because annoyed at being compelled to
appear (which would imply a prosecution witness), or perhaps because he had been sub-
orned by another defendant to muddy the waters.
81
Technically, as Sherwin-White (1966), 236, pointed out, such a charge only lay against
the formal accusers, Pliny and Albinus (SC Calvisianum 98–103). However, the pro-
vincials were clearly moving nearer to being able to bring their own prosecutions for
themselves, and this could have been a deliberate extension of liability.
82
This had formerly been the duty of the leading prosecutor, but Tac. Ann. 13.43 suggests
that it had come to be viewed as a nuisance; its transfer to the provincial delegation may
have been unauthorised but seen as acceptable.
83
Lex Acilia v.75 (FIRA i 7, p. 84); D 48.16.1.3 and 6, Marcian.
84
This surely might have made him liable to an accusation of calumny, for bringing a
malicious prosecution, but as with iniuria, truth might have been an adequate defence in
the circumstances.
85
See Paul, fr.inst. 2 (FIRA ii p. 421); cf. Tac. Hist. 2.10.
88
instructions on behalf of the province; if he was guilty of collusion, they

needed fresh instructions, so they remained seated throughout his trial.86
Surprise witnesses against him emerged from the Senate, when two con-
sulars brought evidence of his calumniously joining (as subscriptor pre-
sumably) in the prosecution of Salvius Liberalis under Domitian. A charge
of calumny could be heard together with one of collusion since they both
fell under the same senatusconsult, the SC Turpillianum. He was found
guilty, and relegated to an island, but was able to attend the remainder of
the trial.87
Calumny and other procedural crimes

There were risks inevitably inherent in a system of popular accusation,
accusation by any adult male citizen, with no requirement that he should
have an interest (other than in the reward for a successful prosecution). To
counter or mitigate these risks the Romans developed a group of procedural
offences: calumny, collusion, and the desertion of an accusation formally
laid. They were not free-standing crimes, but abuses of procedure before the
ordinary criminal courts; originally they only applied to accusations before
the quaestiones perpetuae. Calumny (calumnia) was the bringing of false char-
ges, from malice, or frivolity, or at least with reckless disregard for the
truth. Collusion (praevaricatio) was the concealment of genuine charges, in
particular by the bringing of false evidence which could readily be dis-
proved. The abandonment of an accusation (tergiversatio) perhaps seems
oddly treated as criminal, but – in the absence of a state prosecution
service – it might well occur because the accuser had been bribed to drop
the case, or intimidated; and then, as now, the court’s time would have been
wasted. There was therefore a mechanism, known as abolitio, by which a
prosecutor could apply to the court before which he had brought his accu-
sation to have it annulled; if he did not do this he might be presumed
guilty of tergiversatio or calumny.88
Calumny had originally been governed by the lex Remnia, perhaps of 91
BC, certainly before 80 BC (since Cicero referred to it in pro Roscio Amerino);
its penalty had presumably been infamy, depriving the guilty man of the
right to accuse or to act for others, or to become a decurion.89 The branding
86
Ep. 3.9.35.
87
Ep. 3.9.33–35: ‘apud iudicem sub Domitiano Salvi Liberalis accusatoribus adfuisset’: the
phrase makes it sound as though the accusation was before one of the quaestiones perpetuae.
Senators seem normally to have been tried by their peers, in the Senate, by the middle of
the first century, but perhaps a non-political charge, such as adultery with a woman of no
importance, would have been competent in the ordinary courts. The appointment of a
special judge by the emperor remains a possibility; cf. Ep. 7.6.8 and 10.
88
Robinson (1999) and (2006).
89
Camiñas (1984a).
89
or tattooing of the culprit with a K, threatened by Cicero,90 is not physi-

cally evidenced at that period, so one must assume it was metaphorical,
entering a K beside the name on the praetor’s album. (Actual branding or
tattooing was a penalty at this stage only imposed upon fugitive slaves.91)
Claudius, in a speech to the Senate between 42 and 51, tried more generally
to regulate accusations,92 but in the event the SC Turpillianum of AD 61
absorbed the statute, and it became the basic source dealing with all three
procedural offences: calumny, collusion, tergiversation, and also perjury.93 It
did not deal with the question of advocates’ fees. It covered not only the
accuser himself, but also one who employed a man of straw to make the
accusation;94 certain persons, on the other hand, could make an accusation
without fear of calumny, such as a parent pursuing the death of a child,95 or
a man making an accusation of adultery by right of being the husband.96
Suitable penalties under the SC Turpillianum might be a fine of 5 pounds of
gold,97 a ban on bringing any prosecution (except one where his own
interests had been harmed),98 a ban on acting as an advocate for a number of
years,99 degradation, i.e. removal from the Senate or the local council,100 or
even relegation.101 As we shall see, the concept of calumny changed some-
what in the Later Empire; the courts were much more likely to see any
failed accusation as calumnious, and the penalty was often that which would
have been imposed on the accused if convicted.102
Further subsidiary trials

Thereafter, at the planned third session, several persons – mostly of lesser
importance – were charged, including Classicus’ wife, Casta, who was under
strong suspicion; however, Pliny had been doubtful if there was enough
evidence to convict. Senatorial wives had been liable to charges under the
90
Cic. Rosc. Am., 19.55; 20.57; tab. Hera. v.120 (FIRA i, p. 149); cf. D 22.5.13, Papinian.
91
Jones (1987).
92
FIRA i 44, p. 285.
93
See Robinson (1995), 99–103; Camiñas (1984a), 113–22; Centola (1999); Puliatti
(2002); cf. Robinson (1999).
94
D 48.16.1.13, Marcian; cf. 48.16.15pr, Macer.
95
D 48.1.14, Papinian.
96
D 4.4.37.1, Tryph.
97
D 47.15.3.3, Macer, who says this penalty was laid down in the SC; this fine will have
been translated by the compilers into the currency of the Later Empire. In civil procedure
the counter-action claiming calumny made the wrongful pursuer liable to the defender for
one tenth of the sum at issue (G 4.174–75).
98
D 47.15.5, Ven. Sat.; 48.2.4, Ulpian.
99
Ep. 5.13.5.
100
D 50.2.6.3, Papinian; PS 5.4.11.
101
Tac. Ann. 14.41; PS 5.4.11.
102
D 47.15.6, Paul, citing a rescript of Severus and Caracalla; CJ 9.2.17pr, Honorius and
Theodosius.
90
repetundae law since Tiberius’ reign, as we have seen. Pliny must have felt
more hopeful after the conviction of Norbanus for collusion, and in his
speech he laid particular emphasis on this damning fact. To his surprise, she
was acquitted, even though her accuser had been convicted of collusion with
her – a result without precedent.103 Classicus’ daughter, Classica, was also
among those charged, but her complete innocence emerged; this seems the
only such reference to a daughter being caught up in her father’s crimes,
although it was common enough to charge sons. (The Senate had already
granted her the property owned by Classicus before his appointment to
govern Baetica.) Pliny therefore refrained from pressing the accusation
against her, after having checked that the provincials had no substantial
case; he consulted the Senate on its views, and thus ran no risk of himself
being held liable for tergiversatio. He was confident that her acquittal at the
end of the proceedings would not weaken his overall case.104
Of the others, some were acquitted, but the majority were convicted and
relegated, either for a fixed term or for life. The Senate again gave hearty
thanks to Pliny and Albinus. ‘You can imagine how tired we were after so
much continuous speaking, debating, and cross-examining of all the wit-
nesses, and supporting or refuting their replies’, and also evading their
friends’ confidential enquiries and open attacks.105
The final chapter in the story was the personal appearance of Salvius
Liberalis. He was presumably present simply as a member of the Senate but,
spurred on by his grievance against Norbanus, he fiercely attacked the
remaining Baetican delegates for not having brought to trial all the persons
about whom their province had given them instructions; this will have
included Classica. It is not clear whether or not this was a formal
accusation – which illustrates the sometimes excessive element of discretion
in trials before the Senate. Pliny defended the Baeticans successfully, pre-
sumably against a charge of tergiversatio.106
The trial of Julius Bassus

The third major trial is that of Julius Bassus, early in AD 103; this time
Pliny was for the defence.107 It is not clear for what offence Bassus had been
103
Ep. 3.9.34. We know, however, that in adultery cases, it was possible for the accused
paramour to be convicted and the woman to be acquitted – D 48.5.18(17).6, Ulpian:
‘therefore the woman will await the passing of sentence on the paramour; if he is
acquitted, the woman will win her case through him; if he is condemned, the woman is
not thereby condemned, but may defend herself so that she may perhaps be successful,
whether by favour or by justice or by the terms of the statute.’
104
Ep. 3.9.19–21.
105
Ep. 3.9.22–25.
106
Ep. 3.9.36.
107
Ep. 4.9; cf. 6.29.
91
tried, and acquitted, in Vespasian’s day, but the fact that he was charged by
privati and the case referred to the Senate suggests another charge of extor-
tion. Friendly with, but banished by, Domitian, he was recalled by Nerva –
which makes it fairly certain that it was for a political not a vulgarly
criminal matter. He became governor of Bithynia (in north-western Asia
Minor), perhaps in 100, and was now accused of extortion.108 There is no
reference to an inquisitio, or to the presence of witnesses, so presumably any
charges of saevitia had been dropped, which would of course be with the
permission of the court (or more specifically of the consuls as presidents).
The procedure therefore is close to that laid down in the SC Calvisianum.
Pliny for the defence had been instructed by his client to say, first, what a
distinguished man he, Bassus, was, then to deal with the informers who
were plotting to profit (praemia delatorum) in the Bithynian courts, and
finally to speak of the reasons for Bassus’ unpopularity with the bad types,
the ones stirring up riots.109 But the nub of the accusation, since the char-
ges that sounded more serious had been dropped, was that he had accepted
certain gifts from the provincials, thoughtlessly, as their friend, for he had
been quaestor there earlier – it depended on your perspective whether this
should be described as thieving and plundering, or accepting tokens of
friendship.110 But even presents from friends were forbidden by the sta-
tute.111 Pliny’s task of defence was tricky. It was impossible to deny a
palpable fact, for Bassus had told many people, including the emperor, that
he had accepted gifts, but only small ones, and on occasions such as his
birthday and during Saturnalia, and that he had usually given something in
return. The law was strict, but many senators now had a provincial back-
ground, and yet were not forbidden to serve in their home province; this
must have made an increasing absurdity of the literal interpretation. Ulpian
quoted Severus and Caracalla as having laid down that officials should not
be so unmannerly as to refuse all presents, but should be careful to avoid
appearing greedy;112 that, however, was nearly a century in the future. For
Pliny, to plead for mercy would be to blacken his client by admitting guilt;
to attempt to justify his conduct would not help him in the face of the
statute, and would expose Pliny to a charge of disrespect for the law. What
was Pliny to do? To take a middle course, but how? In the event he seems
simply to have made a plea in mitigation.
Pomponius Rufus, as senatorial patron, opened for the prosecution, and
was followed by Theophanes, representative of the province and indeed the
instigator of the prosecution; this seemingly is the first appearance of a
108
Ep. 4.9.1–2.
109
Cf. Dio Chrys. or. 43.6–7.
110
Ep. 4.9.4–6.
111
Lex Acilia v.2 (FIRA i 7, p. 84); D 48.11.7.1, Macer, and 48.11.1.1, Marcian.
112
D 1.16.6.3, Ulpian.
92
provincial with right of audience before the Senate.113 As with the defence,
two speakers were sharing the time allotted for the opening speeches. On
the first day Pliny spoke for three and a half hours (for the prosecution was
allowed six hours, and the defence nine114) with one and a half to come on
the following day, when his fellow advocate would have four hours. Pliny
wondered whether to rest his case that evening, but Bassus pleaded with
him to finish his speech. Lucceius Albinus then followed, also for the
defence.115 Herennius Pollio, apparently the Baeticans’ other patronus, made
a forceful and well-reasoned reply – against Bassus – and then Theophanes
spoke again, and went on until after dark, when lamps were brought in. On
the third day Homullus and Fronto spoke in defence of Bassus; since the
principal statement of the defence case had already been made by Pliny and
Albinus, what these dealt with is obscure. Perhaps they were commenda-
tions of his character. The fourth day was spent on the examination of the
probationes – documents and witnesses.116
The defence was clearly unsuccessful in the face of the evidence and
Bassus’ own admissions, for Pliny next tells us that Baebius Macer, consul-
elect, proposed that Bassus was guilty under the lex repetundarum, and
should be subject to the penalty of the statute, while Caepio Hispo pro-
posed that he should make reparation as laid down by a commission, but
suffer no loss of status. Both proposals were good in law, even though they
differed. Macer held to the letter of the law, albeit the Senate not the
quaestio was hearing the case, but Caepio took the view that the Senate,
when exercising cognitio, had the power (as indeed it has, Pliny adds) to
reduce, or increase, the penalty laid down by law; thus mercy could be
shown for an act prohibited indeed but not unprecedented.117 This would
seem to undo the whole force of the extortion law! Caepio’s proposal was
carried comfortably, but Pliny remarks, as he had in the case of Priscus, that
some held it wrong for a man who had a penalty assessed against him to
retain his seat in the Senate.118 In fact, despite the lack of formal infamy, all
Bassus’ acts in Bithynia were rescinded, as we learn from Pliny when he was
governor of that province, and anyone affected by any judgment of Bassus
was given two years to appeal.119 But Pliny must have decided to avoid
mentioning this resolution of the Senate as insufficiently flattering to his
powers of advocacy, and not fitting well with the welcome given Bassus by
113
Ep. 4.9.3. Senate procedure was developing all the time.
114
As in Priscus’ trial, supra.
115
Ep. 4.9. 9–13.
116
Ep. 4.9.14–15.
117
Ep. 4.9.16–17. Cf. Ep. 2.11.4; see also Robinson (1996); Bleicken (1962), 37ff. The
Senate’s exercise of cognitio remained in touch with the framework of the ordo.
118
Ep. 4.9.18–19. Pliny had been much more forceful on this issue in Priscus’ case (2.12.4),
but then he had been prosecuting.
119
Ep. 10.56.4.
93
so many after the hearing.120 Elsewhere he says that he defended Bassus as

having acted much too imprudently and foolishly but without any criminal
intent, and thus Bassus retained his place in the Senate.121
A senator named Valerius Paulinus had agreed with Caepio, but he also
proposed that Theophanes should be investigated by the Senate, after he had
given an account of the investigative commission’s work, on the grounds
that in the course of his accusation he had committed various offences which
also fell under res repetundae. This was probably taking money from other
Bithynians to accuse;122 it may well also be a reference back to the Bithy-
nian delators who were conspiring for rewards. The consuls, however,
despite the general feeling of the Senate, rejected what was in effect an
application to prosecute, but Pliny thought it reflected credit on Pauli-
nus.123
The trial of Varenus Rufus

The fourth extortion trial in which Pliny took part was that of Varenus
Rufus, in AD 106 or 107.124 The Bithynians were here accusing the same
man who had been set to prosecute Bassus on their behalf; he had with-
drawn from the case, for reasons unstated, which is why Pliny did not
mention him in his account of that trial. The provincials were summoned
before the Senate, presumably for formal nominis delatio, and to receive
senatorial advocates to put forward their charges; they applied for time to
collect evidence, thus making it clear that they accused Varenus of saevi-
tia.125 Then Varenus requested that he too should have the right to call
witnesses from the province. This action by the accused was without pre-
cedent, and the Bithynians objected; the preliminary stages of the case,
concerning the inquisitio, were heard at once. Pliny appeared for Varenus126
as he had for Bassus, but says nothing of his own speech. The leading
Bithynian prosecutor was the voluble Fonteius Magnus;127 it is noteworthy
that the precedent set by Theophanes, of a provincial commissioner having
rights of audience before the Senate, seems to have become accepted, just as
the provincials’ power to organize the inquisitio had been accepted earlier.
Homullus, the other advocate for the defence, replied on behalf of Varenus on
the following day; Pliny’s lack of remark on this proves that continuation
120
Ep. 4.9.22.
121
Ep. 6.29.10.
122
D 48.11.6.2, Ven. Sat.
123
Ep. 4.9.20–22.
124
Ep. 5.20 describes the preliminary stages, while 6.5, 6.13, 7.6, and 7.10 deal with fur-
ther procedural manoeuvrings. We never hear of an actual trial.
125
Ep. 5.20.1.
126
Ep. 5.20.2.
127
Ep. 5.20.4–5.
94
was commoner than in AD 100. Then Nigrinus, as patron of the Bithynians,

made an effective speech for the prosecution in reply. This was a preliminary
action, not the trial proper, so the normal time ratio and the order of the
speeches could be varied without comment. The consul-elect, Acilius Rufus,
proposed that the Bithynians should be allowed to collect their evidence,
that is, he allowed the graver form of trial for extortion, but passed over
Varenus’ similar plea. The consular Cornelius Priscus proposed that both
parties should be granted their requests, and this was carried. ‘So we won
our point, not one mentioned in the law or covered by precedent, but none
the less equitable.’128
However, a couple of weeks later, at the next meeting of the Senate,
Licinius Nepos129 held that the innovation was unjustified; he proposed that
the consuls should be asked to consider the law on extortion in the light of
that on electoral corruption, and settle whether in future the same powers
should be given to the defence as the prosecution in preparing their case.
There followed an altercation between him and the jurist Celsus, probably
the younger of that name.130 If this right had indeed already been granted
in cases of electoral corruption, it would not have been such a novelty, and
it is not particularly surprising that the Senate should have accepted it in
Varenus’ case. Perhaps as a result of that debate, Pliny next tells us that the
Bithynians had dared to approach the consuls to try to have the Senate’s
grant of permission to Varenus overturned; they had even petitioned the
emperor, who was not in Rome, but he referred them back to the Senate.
The Senate, apart from Acilius Rufus and seven others, held that a majority
decision had been passed and was binding.131
The next that we hear is the extraordinary fact that the Bithynians were
reported to have dropped their case against Varenus.132 Pliny is slightly
cautious about this, but an emissary of the province had brought the pro-
vincial council’s decree to the emperor, to various leading figures, and to
Varenus’ advocates, Pliny and Homullus.133 The council may have been able
to reverse its decision because of the absence in Rome of Varenus’ chief
enemies. Nevertheless, a certain Magnus, from the first embassy, was haras-
sing Nigrinus, the advocate appointed by the Senate for the Bithynians, to
128
Ep. 5.20.6–7; see also 6.29.11. Sherwin-White (1966) points out, p. 354, that Quinti-
lian, inst. or. 5.7.9, states explicitly that while both sides could call witnesses, only the
prosecution had the power to compel their appearance. He may well, however, have been
describing the ordinary procedure before the quaestiones perpetuae; also he was writing ten
years or more earlier. Senatorial procedure was changing.
129
He is the man who is possibly to be identified as praetor of a quaestio perpetua in Ep. 4.29
and 5.9.3–5.
130
Ep. 6.5; on the identity of Celsus, Sherwin-White (1966), 360–61.
131
Ep. 6.13; cf. 2.12.5.
132
Ep. 7.6.
133
Ep. 7.6.1.
95
get Varenus forced to produce his accounts.134 Nigrinus made the request to
the consuls, who asked Pliny what he had to say; he simply suggested that
the true representatives of the province be heard. Then Polyaenus, the
Bithynian emissary, explained to the Senate their reasons for dropping the
prosecution, and asked that no sort of decision be taken before the emperor
had held an inquiry into possible tergiversatio. Pliny largely refrained from
speaking, and certainly from making any form of speech, since it was
important to stress that Varenus was not on trial.135 The consuls granted
Polyaenus’ request.136 The emperor, having heard the opposing arguments
of Fonteius Magnus and Polyaenus, declared that he would undertake to
discover the true wishes of the province.137 The silence of Pliny, or indeed
any other source, strongly suggests that the Bithynians were allowed to
withdraw their accusations. It is likely that the Bithynians were trying to
fight their own internal battles before the Roman Senate, using the repe-
tundae laws as a pretext. The episode suggests that the Senate as a court
normally acted autonomously, without imperial intervention, although the
emperor was available for breaking an impasse.
A trial before the emperor

We do hear from Pliny of one other case of misbehaviour in the provinces,
in 106 or 107, but this was not a trial before the Senate but before the
emperor. Lustricius Bruttianus, a proconsul (but we do not know his pro-
vince), had detected his comes, Montanius Atticinus, in a number of criminal
acts (in multis flagitiis), and had reported these to the emperor; Atticinus
then added to his offences by raising a counter-action – seemingly some
form of extortion charge, since it reflected on Bruttianus’ integrity – against
Bruttianus. Pliny was on the imperial consilium, acting as judicial asses-
sor.138 The procedure was summary – carptim; each party acted for him-
self,139 dealing with the main items one by one.140 Bruttianus produced his
will, written in Atticinus’ hand,141 as proof of his former trust and of the
necessity of his present accusations, all clearly proven. The force of Atticinus’
134
Ep. 7.6.2. This had long been normal in such prosecutions: II Verr. 1.36 shows Cicero’s
access to Verres’ accounts, and see Ep. 2.11.23 in relation to Priscus’ case.
135
Ep. 7.6.3–7
136
Ep. 7.6.14.
137
Ep. 7.10.
138
Ep. 6.22; cf. 6.31.1–12. Pliny also sat as assessor for the Prefect of the City (Ep. 6.11.1).
139
Although on another occasion we are told that advocates could and did appear before the
emperor (Ep. 6.31.11).
140
Ep. 6.22.1–2. Nero had tried to speed up the administration of justice by replacing
continuous pleadings with each party in turn presenting single points (Suet. Nero 15.1).
141
On the curious Roman habit of getting other people, friends or family, to write out one’s
will, see Robinson (1992a).
96
counter-charges was destroyed when it was revealed that he had bribed a

slave belonging to Bruttianus’ scriba, intercepted certain papers and falsified
some of them,142 and, worst of all, had diverted against Bruttianus a crim-
inal charge laid against himself.143 Somewhat oddly, it is possible that
altering official documents did not fall under the basic law on forgery, the
lex Cornelia de falsis, until Severus,144 but it was also classified as treason in
chapter 1 of the lex Iulia maiestatis.145 The emperor asked his consilium for a
verdict on Atticinus, who was found guilty and relegated to an island.146
The charge against Bruttianus may be presumed dismissed. This case dif-
fered from the other extortion trials, because it was between two Romans,
perhaps both senators, and not at the instance of a province. This is prob-
ably why it was heard before the emperor rather than the Senate, which had
normally inherited the jurisdiction of the quaestio perpetua de rebus repe-
tundis.147
This series of trials, described straightforwardly by Pliny, is less infor-
mative than one might have hoped on Roman attitudes. For one thing, the
only attitudes we really learn of are those of Pliny’s fellow-senators. It does
seem that overall the Senate was concerned with the good name of Roman
government, and that, whether for moral or political reasons, there was no
automatic attempt to cover up alleged abuses of Roman power in the pro-
vinces. On the other hand, it is highly unlikely that Pliny’s sentiment of
distress at the downfall of a senator was not widely shared. Lesser charges
were perhaps more likely to gain a hearing than serious ones, as a general
rule. But Pliny and Tacitus had insisted that Priscus’ conduct had been
beyond what could be met with mere restitution, that punishment was due.
It seems that rough – by which I mean approximate – justice was probably
achieved, even against some of the most powerful men in the Empire. But it
was also a time when the power and influence of provincial families was
growing; Italian families, let alone truly Roman ones, were steadily dwind-
ling in the Senate. It was not merely the governors Bassus and Classicus
who came from the provinces; so did the Emperor Trajan. The odds for the
injured provincials must have been much more favourable than in the Late
Republic.
142
interciderat (cf. D 11.3.1.5, Ulpian; 48.10.9.3, Ulpian).
143
Ep. 6.22.3–4; it is likely that this charge was of extortion.
144
D 48.10.1.4, Marcian; cf. 48.10.16pr and 2, Paul.
145
D 48.4.2, Ulpian.
146
Ep. 6.22.5.
147
Cf. Ep. 7.6.8–10, dealt with in the section on the decline of the quaestiones perpetuae in
ch. 3. In the case referred to there, the later development, with the woman claiming
fresh evidence, was before Suburanus, who became Trajan’s first Praetorian Prefect. If it
in fact occurred while he held that office, it is the second evidence – after Seneca’s
reference to Burrus (clem. 2.1.2) – for the Praetorian Prefect exercising jurisdiction.
97
The Senate and the ordo

The other aspect which is striking is the usual desire of the Senate to con-
form to the spirit of the law, the statute, even when not bound by the letter
of it. Correct procedure, largely drawn from the ordo iudiciorum of the
standing jury-courts, was important, although the Senate was clearly devel-
oping its own particular rules. Probably the power to vary the penalty was
the most significant of these. At the trial in AD 22 of Gaius Junius Silanus
for extortion with brutality when proconsul of Asia (the province of pro-
consular Asia comprised the greater part of western Asia Minor), it was the
presence of Tiberius which most affected the sentence.148 In Trajan’s time,
however, the Senate was able to debate freely its own powers to pass sen-
tence; we have seen this in the trials of both Classicus and Bassus.149 Other
changes we have noted were the acceptance of provincials as having right of
audience, and the right of the defence to compel witnesses.150 In the inter-
ests of good government and of the orderly development of the law, justice
was imperative, and this included the rules of natural justice. All the
members of the Senate will have had some schooling in philosophy, and
among the senators were the major jurists. I do not wish to go so far as
seeing a golden age here, but this period was probably the nearest approx-
imation to it – as long as one remembers the unfortunate eques who was
flogged, condemned to the mines, and then strangled in prison.
148
Tac. Ann. 3.68.
149
Pliny, Ep. 3.9.29–32; 4.9.16–17.
150
Ep. 4.9.3, on Theophanes, in the trial of Bassus; 5.20, in the trial of Varenus.
98
Chapter 5
ACTA MARTYRUM CHRISTIANORUM:
T H E E X T E N S I O N O F T O RT U R E
This chapter does not look at persecution as a topic, although it explains the
legal grounds for persecution, but at the legal practice in the various trials
(and related happenings) of those punished for Christianity. The first such
trials were in the second century, when Christianity was not a ‘crime’ but
conduct on occasion deserving repression. In the mid-third century, under
Decius, Christianity was still not of itself a crime, but Christians were
bound to be seen as criminals because it was ordered that everyone must
worship the gods of Rome; Christians were not specified, but it was well
known that they would refuse. Then, a few years later under Valerian, and
again in the early fourth century, Christianity was criminalized. This chap-
ter, like the first, deals as much with political as juridical issues1 since, for
various reasons, the Roman government decided to prosecute Christians for
their beliefs, rather than their actions.2 The other trials described in this
book concern sedition, murder, treason, extortion from provincials, magic
practices, things that have generally been reckoned assaults on society,
although the control of worship was also an important issue in the case of
the Bacchanalians. I think one can take it that no Christian was convicted of
cannibalism3 or incest or other flagitia, and these charges do not actually
occur in the records of the persecutions. So Christianity was in one sense a
non-offence, as Tertullian said,4 although there are some links with
astrology and magic. Yet for long it was an offence in the eyes of the people
at large; educated people like Tacitus and Suetonius saw Christians as ene-
mies of the human race.5
1
Fogliani (1928), 66. Edward Gibbon’s survey, The Decline and Fall of the Roman Empire,
(1776, repr.) vol. I, ch. xvi, ‘The conduct of the Roman government towards the Chris-
tians, from the reign of Nero to that of Constantine’, still has much to commend it.
2
Despite D 48.19.18, Ulpian: ‘No one is punished for thinking’.
3
Not seemingly an offence in Roman law, where one hears nothing of it, very unlike the
Bible. It was misunderstanding of the eucharist that led to this charge, just as accusations
of incest were a misunderstanding of the Christian call to brotherly love.
4
Tert. apol. 2.10: ‘Others you torture to make them confess, us to make us deny’.
5
Tac. Ann. 15.44; Suet. Nero 16.2.
99
A C TA M A R T Y R U M C H R I S T I A N O R U M
The sources
For the first, and only, time we shall be looking at the administration of
justice from a point of view other than that of the governing classes, which
is one reason why we must not think of these accounts in the Acta Martyrum
Christianorum as law reports (even if one could perhaps call them case-stu-
dies). ‘These Acts are not, though they may seem to be, authentic verbal
records of the trials of martyrs. But they are ancient literary evocations of
those trials.’6 A second reason for caution is that these stories of Christian
martyrs were preserved to honour their memories; they are gesta, not court
acta, and their purpose was hagiographic, not legal. There were hundreds of
Acta Martyrum composed in the fourth and fifth centuries, once Christianity
had become first tolerated and then the official religion of the Roman state,
in honour of those whose anniversaries were celebrated; almost every see had
its own martyrology. Death, in imitation of Christ, was the supreme sign of
Christian faith.7 These late Acta, whatever the date of the martyrdom they
recount, are of no value at all for weighing the criminal law of the pagan
Empire. However, there are some early ones which seem contemporary with
the events they describe, even if they may have been embellished later,
perhaps with the addition of dreams or visions. But they too were written to
exalt those who suffered death for their faith, and that faith itself; this is
frequently highlighted by language stressing the cruelty of the mob and of
the authorities. The details that are of interest to us in discerning the
criminal procedure of the period and the attitudes of the government are
incidental to their purpose.
There are several modern collections of those Acta which can be reckoned
as contemporary, or nearly so, with the events they describe, among which I
have followed Musurillo, and also Lanata, and Bastiaensen.8 The problem is
that there are few external checks, and no pagan versions of these trials;9
internal consistency and external plausibility do not prove them accurate,
even if we must rely on them. Arrest and execution, and perhaps the giving
of sentence, would be things witnessed by the martyrs’ companions, but
the interrogations are often described as being behind closed doors, in a
secretarium.
6
Millar (1993b), 35. Cf. Bisbee (1988), who holds in his Introduction that useful distinc-
tions can be drawn between ‘acta’ based on court records and ‘passiones’ based upon wit-
nesses to the deaths of the martyrs.
7
Confessors, technically, are Christians who bear witness publicly to their faith in circum-
stances of difficulty and danger, but who do not suffer death for this witness; they were
much less important in the fourth-century Christian view.
8
Musurillo (1972); Lanata (1973); Bastiaensen (1987). On problems of authenticity, see
Barnes (1968b); Bastiaensen, xxviii–xxx; Musurillo, Introduction; also Bisbee (1988), 81–
87.
9
Apart, in a sense, from Pliny’s correspondence with Trajan on the treatment of Christians
in his province of Bithynia, around AD 110 (Ep. 10.96–97).
100
A useful source, apart from the Acta, is the collection of letters from, and
to, St Cyprian, bishop of Carthage from at least 249 until his death in 258;
the authenticity of almost all of these is unchallenged. Cyprian was an eye-
witness, and then a victim, of the persecutions of the mid-third century. His
letters are largely official episcopal letters, directed to those within the
Church, to his clergy, and to the clergy of other sees, particularly Rome;
they were not designed for publication as a collection, but to answer the
needs of the moment. They speak warmly of both confessors and martyrs,
but are more concerned with the treatment of the lapsed, those whose
courage had failed them. Another source, the historian Eusebius, bishop of
Caesarea, was an eye-witness to the ‘great’ persecution of Diocletian and
Galerius in the Eastern Empire in the early fourth century, but his knowl-
edge of events in the West was not good.10 His Ecclesiastical History has a
general purpose different from that of the Acta, the justification of the
Christian faith from its beginnings until his own time. It was written by
someone familiar with the standards expected (in his day) of a historian;
where there is an overlapping account, confirmation from this source gives
added weight, even if not certainty. Yet another source, Lactantius, a
Christian and author of a work de mortibus persecutorum,11 held the post of
professor of (Latin) rhetoric at Nicomedia, Diocletian’s eastern capital, until
presumably dismissed under Diocletian’s first edict against Christians; he
survived the persecution and died around 320. He was closely involved with
court circles. All in all, the sources for this chapter probably have no more
bias than does Cicero; in other words, they give much useful information
but are not to be swallowed uncritically.
The background: astrologers and philosophers

Let us move from our sources to the background. Until the middle of the
third century, while the Christians saw Roman authority as hostile, as
focused on suppressing them, this was their perception rather than reality.12
From the Roman point of view there were merely times when awkward
people, such as astrologers, Jews or Christians, needed to be temporarily
10
Eusebius (c. AD 260–339) was imprisoned briefly in 309 during the Diocletianic perse-
cution; he became bishop of Caesarea around 313; he attended – perhaps as theological
adviser to Constantine – the Council of Nicaea in 325. He made a collection of the lives
of the early martyrs, which has not survived, as well as writing a book on the Martyrs of
Palestine; his Ecclesiastical History was probably begun – it was subject to various
revisions – during or even before the Great Persecution, but it dealt with the big picture,
not just persecution.
11
The Deaths of the Persecutors, here abbreviated MP.
12
As I have argued elsewhere: Robinson (1990–92); Robinson (1995) is only a slightly
different version.
101
repressed. For example, rhetoricians, philosophers and astrologers formed a

loosely linked group: rhetoricians were originally Greek, as were philoso-
phers; Stoic philosophers saw their fate not in themselves but in their stars.
As early as 161 BC, rhetoricians and philosophers were banned from Rome
by a senatusconsultum, proposed and enforced by the Praetor.13 In 139 BC the
peregrine praetor banished astrologers from the City for exciting shallow
minds for their own profit.14 In 92 BC the censors passed an edict against
rhetoricians since their teachings were contrary to Roman ancestral
custom.15 Under Tiberius, around AD 17, a senatusconsultum was passed
expelling astrologers from Italy, and some were executed.16 Philosophers
were in trouble under Nero,17 and banished again from Rome and Italy by
senatusconsult under Domitian.18 Serious penalties were thus imposed, and
yet astrologers and rhetoricians had a significant place in the intellectual life
of Rome; the aim was to cut them down to size, not to abolish them. We
have seen the same approach to foreign cults. Interestingly, our one legal
source, specifically dealing with Tiberius’ action, shows that there could be
argument as to whether it was the skills of such men or only their public
exercise which were to be punished; at the time, the jurists had held that it
was only the exercise which was punishable, although this was different by
the time the Collatio was compiled, and perhaps already in Ulpian’s time.
Knowledge sometimes merged into practice; this was the result of such
men’s obstinacy and rashness – per contumaciam et temeritatem.19 A literary
source confirms a clear parallel with Christians: those astrologers who
recanted, who asked pardon and undertook to make no further predictions,
were not punished.20
The different stages of the criminal law concerning

Christianity
Christians fell into this category of potential subversives, but for a couple of
centuries Christianity was not a specific crime. In the pre-Decian period
13
Suet. de rhet. i; Gellius NA 15.11.1.
14
Val. Max. 1.3.3.
15
‘praeter consuetudinem ac morem maiorum fiunt’; Suet. de rhet. i; Gellius NA 15.11.2.
16
Tac. Ann. 2.32; Suet. Tib. 36 and 63; Gellius NA 14.1; Dio 57.15.8; Coll. 15.2.1, citing
Ulpian, 7 de off. proconsulis.
17
Philostratus, Vita Ap. 4.35: Nero suspected philosophers of dabbling in magic and of
being diviners in disguise, and this brought them before the courts; he issued an edict,
before leaving for Greece, that there was to be no public teaching of philosophy in Rome
(Vita Ap. 4.47).
18
Gellius NA 15.11.3–5.
19
Coll. 15.2.2; cf. Pliny, Ep. 10.96.3 (‘pertinaciam certe et inflexibilem obstinationem’).
20
Suet. Tib. 36.
102
there was no statutory prohibition of or sustained punishment for the practice

of the Christian religion.21 There was repression certainly, sometimes
savage, but it was sporadic, as for astrologers. The problem for Christians
was probably lack of security, rather than any statistically likely bad hap-
pening.22 The attitude that might be taken by the Roman government to
Christians in the early second century can be illustrated from Pliny and his
exchange of letters with the Emperor Trajan around AD 110.23 Pliny, as
provincial governor, with a duty to keep his province (Bithynia) free of bad
men,24 was clear that Christians did or could fall into this category, and
might be punished; he did not, however, know whether to pardon those
who retracted their beliefs. When persons were charged with Christianity in
his court, he asked them if they were indeed Christians, and if they admit-
ted it, he repeated the question, sometimes more than once, to give them an
opportunity to deny it. If they persisted, he ordered execution for non-citizens,
while citizens were to be sent to Rome, for obdurate refusal to conform.25
An anonymous written charge – libellus – had listed many names; some
others, named by an informer, had said they had long ceased to be Chris-
tians.26 The test, and it was just that, a test, to prove the denial of Chris-
tianity was an invocation to the gods, a sacrifice to them before an imperial
statue, and an insult to the name of Christ. Pliny had also tortured two
slave-women, known as ministrae, to check on the absence of ordinary crime,
flagitia.27 Trajan, while approving Pliny’s conduct concerning those formally
accused of Christianity, said that there could not be a general rule with a
fixed formula. The Christians were not to be hunted out, but if the charge
was proved they were to be punished; apostasy secured pardon. But anon-
ymous accusations were not to have any place in trial proceedings; they were
21
Barnes (1968a).
22
It seems quite likely that there were only a couple of hundred Christians put to death for
Christianity in the 200 years or so before Decius. Frend (1965), 413, reckons of the
undoubted Decian persecutions that ‘Deaths over the whole Empire may probably be
numbered in hundreds rather than thousands.’ One could compare the statistical like-
lihood of being a terrorist victim; it’s minute, but people get worried. See Barnes
(1968b); Robinson (1990–92).
23
Pliny, Ep. 10.96–97. There is no space to consider pre-Decian trials, such as those of
Polycarp, the martyrs of Lyons, the Scillitan martyrs, or Perpetua and her companions.
24
D 1.18.3, Paul; 1.18.13pr, Ulpian.
25
‘pertinaciam certe et inflexibilem obstinationem debere puniri’ (Pliny, Ep. 10.96. 1–4).
This cannot just be punishment for contumacy (as held by Sherwin-White (1952b), 210–
12, or (1964), 25–26), which is certainly an aggravating circumstance (as it was also with
the astrologers), because there had actually been a formal charge – nomen deferre – bringing
them before the governor. It is logically impossible to be contumacious before being
charged with something to be contumacious about. Some other governors, as we shall see,
took a softer line than Pliny’s.
26
Pliny, Ep. 10.96.5–6.
27
Pliny, Ep. 10.96.5 and 8. Quite properly; Pliny clearly had not put any free persons to the
torture.
103
an appalling precedent, unsuited to the times.28 From this time on, offering
a sacrifice to the gods before the emperor, represented by a statue, seems to
have been the normal recognized test of the existence or non-existence of
Christian faith. The evidence for persecution in this period is too sparse to
be conclusive, but it points to successful propaganda, a rewriting of history,
by the Christians of the early fourth century, imposing, for ideological rea-
sons, on the earlier Church the experience of their own day. There is some
truth in what Gibbon said: ‘The ecclesiastical writers of the fourth and fifth
centuries ascribed to the magistrates of Rome the same degree of implacable
and unrelenting zeal which filled their own breasts against the heretics or
the idolaters of their own times.’29
In the reign of Decius (249–51) an edict was issued which specifically required
all inhabitants of the Empire to offer sacrifice.30 Under Decius, and later, in
257–60 under Valerian (253–60, ruling with his adult son Gallienus, 253–68),
there was an effort, throughout the Empire, though not long-sustained, to
eliminate the monotheistic practice of Christianity. Here there was legal pressure
to conform, which amounted to persecution, not simply repression, policy, not
just reaction, but even so its objective fell well short of extirpation.31 According
to the trials and deeds of these martyrs and confessors, the Roman autho-
rities remained, usually, satisfied by simple recantation, token sacrifices to the
pagan gods. This mid-century period probably coincides with the effective
disappearance of known jurists; Modestinus was probably dead. The second
and earlier third centuries had been when the great jurists were writing and
holding office; it would have been interesting to know their opinions on the cult
of Christianity and its proper treatment. Unfortunately these opinions are
not known to us, because our juristic sources survive almost entirely through
the Digest, which was edited under Justinian in a profoundly Christian envir-
onment, and material hostile to Christianity was, presumably, excised.32
28
Pliny, Ep. 10.97. ‘Actum quem debuisti, mi Secunde, in executiendis causis eorum qui
christiani ad te delati fuerant, secutus es. Neque enim in universum aliquid quod quasi
certam formam habeat constitui potest. Conquirendi non sunt; si deferantur et arguantur,
puniendi sunt, ita tamen ut, qui negaverit se christianum esse idque re ipsa manifestum
fecerit, id est supplicando dis nostris, quamvis suspectus in praeteritum, veniam ex pae-
nitentia impetret. Sine auctore vero propositi libelli nullo crimine locum habere debent.
Nam et pessimi exempli nec nostri saeculi est.’ Tert. ap. 2.7, has the gist. Cf. Eusebius,
HE 4.9, on the so-called rescript of Hadrian to Minucius Fundanus.
29
Gibbon (1776), 467.
30
See Rives (1999) on the essential importance of cult acts in ancient religion.
31
The Christians selected for martyrdom were either bishops and other clergy, the leaders,
whose deaths might recall the laity to the observance of Roman norms or, according to
Gibbon (1776), 468, ‘the meanest and most abject . . . whose lives were esteemed of little
value, and whose sufferings were viewed by the ancients with too careless an indifference.’
32
Lactantius div.inst. 5.11.19, records that Ulpian, in de off. proconsulis book 7, ‘rescripta
principum nefaria collegit, ut doceret quibus poenis affici oporteret eos qui se cultores
Dei confiterentur’. (However, as Alan Watson has frequently said, the odd thing about
Justinian’s Corpus is not the excisions, but that Christianity was not introduced more.)
104
The third period of martyrdom came in the ‘great’ persecution of Dio-

cletian and Galerius and their colleagues in the imperial purple. This hap-
pened against a background, as described by Lactantius, of multiplied
armies, exhausted agricultural resources, and an ever-growing number of
interfering and exacting officials.33 This was the last serious attempt to get
rid of Christianity, or at least the Christian Church. Around 303–4, four
edicts were issued, although we have the texts of none of them, of which the
first ordered the destruction of churches, the burning of sacred books, and
the loss of legal privileges for those Christians who were of the upper ranks,
and the fourth commanded everyone to sacrifice to the traditional gods on
pain of death. This was the persecution in which thousands died horrible
deaths; nevertheless there were others who suffered but survived, like the
Donatus to whom Lactantius addressed his book on The Deaths of the Perse-
cutors, and others still who confessed but hardly suffered at all, such as
Eusebius and Lactantius himself.
Death and torture, and the links with social status

Since the martyrdoms are by definition concerned with death, even if not
always its direct infliction,34 it seems appropriate to look at the legal rules
on capital punishment at this period. In the second century, 100 or 150
years before the period covered in this chapter, society in the Roman Empire
recognized the fundamental division between free persons and slaves, and
also a division between citizen and (free) non-citizen; the latter can in gen-
eral be defined as a distinction between the inhabitants of Italy, together
with the ruling group in a fair number of provincial cities, and all the other
inhabitants of the provinces. Overlapping these traditional distinctions of
legal status was the division, originally social, between the upper ranks (in
the Republic those of senatorial or equestrian rank) and all the rest of the
population, often called the plebeians. By the middle of the second century
this was hardening into a legal division, between the honestiores and the
humiliores.35 The former comprised the old upper ranks and also the town
councillors – decurions – of the cities of the Empire, with their families,
whether they were citizens or not; the latter consisted of the plebeians and
the great majority of the provincials.36 After the edict of Caracalla, known
as the constitutio Antoniniana, which granted citizenship to (almost) all free
33
Lact. MP 7.2–4. Cf. his account of the census of AD 306 for the further harassment of the
inhabitants of the Empire: Lact. MP 23.
34
Such as the death of Pothinus, the aged bishop of Lyons, from pain and exhaustion
(Eusebius, HE 5.1.28–31).
35
See Cardascia (1950); Garnsey (1970); Rilinger (1988).
36
See Sherwin-White (1973), esp. ch. xi. Honourably discharged veterans of the legions,
along with decurions and certain individuals (such as civically appointed rhetoricians or
doctors), made up the lowest level of the honestiores.
105
inhabitants of the Empire, this was the only status distinction of legal
consequence, apart from that between free and slave; slaves sometimes
counted with humiliores, but were more often rated worse.37 Its significance
was particularly to be seen in the criminal law.
The traditional penalties for citizens of the late Republic and early
Empire had been death, very often effectively commuted into exile enforced
by aquae et ignis interdictio, and fines, including confiscation of property.
During the first century, most importantly under Claudius,38 the range of
penalties was widened, and punishment began to take note of relevant fac-
tors, both aggravating and mitigating.39 The ordinary death penalty was
decapitation by the sword,40 the only form suitable for honestiores, but there
were also aggravated forms, known as summum supplicium: crucifixion, the
gallows (furca), the flames, and condemnation to the beasts or the hunting
games;41 these were only suitable for humiliores or slaves. From early in the
Empire executions were sometimes staged specifically as theatrical enter-
tainment,42 and this remained the case at least until the later second cen-
tury,43 but we do not find Christians being executed with this sort of
elaboration. Such executions should clearly be classed as aggravated forms,
but the jurists – at least, as their writings have come down to us – make no
mention of them, and might even be understood to have disapproved.44
The status of someone condemned to death and awaiting execution was
that of a penal slave; those condemned to the mines were in permanent
penal slavery.45 Lesser penalties left civic status unaffected. Corporal pun-
ishment, whether in the form of forced labour,46 a flogging47 or something
similar, was suitable for humiliores; presumably they might sometimes be
fined, if they had sufficient means. Slaves might be confined in fetters.48 It
is likely that such punishments were inflicted on Christians, but these
might easily be described in the Acta as torture rather than as penalties.
37
D 48.19.10pr, Macer.
38
Robinson (1998). And see ch. 8.
39
D 48.19.11pr and 2, Marcian; 48.19.13, Ulpian; 48.19.16, Claudius Saturninus.
40
D 48.19.8.1, Ulpian. The sword had replaced the traditional Republican axe, as carried
by the lictors, still used early in the Empire (Seneca, ira 2.5.5).
41
Crucifixion ceased to be a legal punishment in the Christian Empire so it is not men-
tioned in the Digest; cf. Hengel (1977). For the other forms of summum supplicium, see: D
48.19.9.11, Ulpian; 48.19.28pr, Callistratus; 48.19.38.1–2, Paul; 48.19.8.11, Ulpian.
42
Martial, de spectaculis; see Coleman (1990); Vismara (1990). Strabo 6.2.6 is probably the
earliest record, describing events around the 30s BC.
43
As witnessed by Apuleius (who was born in c. 124), met. 10.22–23, 29 and 34, and Ter-
tullian, ap. 15.4–5.
44
D 48.19.8.1 and 3, Ulpian; 48.19.25.1, Modestinus.
45
D 48.19.29, Gaius; 48.19.17pr, Marcian. Since they were ownerless, slaves of their pen-
alty, they had no derivative capacity.
46
Pliny, Ep. 10.32.2; Philostratus, Vita Ap. 5.19; D 48.19.8.7, Ulpian.
47
D 48.19.7, Callistratus; 48.19.10pr, Macer; 48.19.28.1, Callistratus.
48
D 48.19.8.13, Ulpian; cf. 48.19.8.9, Ulpian; see also Lovato (1994).
106
Torture49 was an accepted part of the Roman criminal process, but it was
recognized as unreliable, and there were some attempts at safeguards – for
justice, and for the individual concerned.50 As we have seen in previous
chapters, the evidence of slaves could not be taken except under torture.
However, citizens were exempt under the Republican lex Porcia, and then
the imperial lex Iulia de vi of c.17 BC, from summary flogging, and a priori
from torture.51 Exceptions might be made in cases of those under suspicion
for treason, but the principle was clear.52 Free persons who were not citizens
did not enjoy the protection of the laws; we have seen in the chapter on
repetundae trials that their torture was classed as saevitia, and was an
undoubted aggravating circumstance when money had been extorted, but it
was not illegal. Of course, citizens who had been condemned capitally were
no longer citizens, and so could be put to the question.53 However, even a
jurist as late as Callistratus held: ‘Interrogation under torture ought not to
be applied to a freeman whose evidence is not inconsistent.’54 There were no
controls on the actual administration of torture, except that people should
not die under it – although it was admitted that they often did.55 It had
normally two aspects; it could be applied to somebody under suspicion of a
crime in order to make him confess, or it could be used for extracting evidence
about some third party. Torture of Christians was in general sui generis, to
persuade its victims to do something in accordance with morality or law,
that is, to worship the Roman gods.56
The discussions of the jurists on torture, as preserved in the Digest, are
preoccupied with slaves to such an extent that it cannot have been normally
relevant to free persons, even in the Severan period,57 although one must
remember that, in contrast to the emperors, the jurists tended to mull over
past issues rather than raising new questions. However, this makes tracing
the change in the law very difficult, for by the end of the third century, and
49
See Brunt (1980); Cerami (1991); Ermann (2000a); Pugliese (1964); Vincenti (1989).
50
D 48.18.1pr–4 and 23–24, Ulpian; 48.18.8pr, Paul; a text from Ulpian – 48.18.1.21 –
specifically warns against leading questions.
51
E.g. Paul, Acts 22.24–29. Clearly implicit in D 48.18.12, Ulpian citing a rescript of
Hadrian; 48.18.1.13, Ulpian citing Antoninus Pius.
52
Although this has been challenged by Russo Ruggeri (2002); see too Polonen (2004),
although this article fails to distinguish adequately between citizens and the many other
free persons.
53
D 48.19.29, Gaius; 48.18.21, Paul, citing Hadrian that nobody should be condemned for
the purpose of putting him to the torture.
54
D 48.18.15pr, Call: ‘Ex libero homine pro testimonio non vacillante quaestionem haberi
non oportet’.
55
D 48.18.7, Ulpian; 48.19.8.3, Ulpian.
56
Tertullian, ap. 2.17: ‘You want him to deny that he is guilty in order to force him to be
innocent . . . and even his past is not to count against him.’
57
D 48.18, de quaestionibus; nor do their remarks in D 22.5, de testibus, envisage the torture
of the free.
107
possibly well before, torture had come to be used regularly on free persons,
even if the extension was gradual, perhaps starting with freedmen.58 It seems
clear that, like the nature of the punishment to be imposed, this was an area
where the distinction between honestiores and humiliores became important,
and before the constitutio Antoniniana some non-citizens were nevertheless
among the honestiores. Torture was undoubtedly applied to humiliores, as is
proved by the explicit immunity of honestiores,59 although this came to be waived
in cases of treason.60 The persons undergoing torture in the pre-Decian Acta
are seemingly all non-citizens, with the exception of Attalus at Lyons,61 and
on that occasion it is clear that there were irregularities, so there is no question
of its illegal use being official. In the later persecutions most of the Christians
were humiliores, but even those who might seem to be among the honestiores were
self-confessed members of an illegal organization, and therefore were obviously
not entitled to be exempt. The Christians had no complaint founded in law
on the issue of torture; the authorities were not acting unlawfully.
Decius, the gods and the Christians

Until the mid-third century Christians were only brought before the courts
because of popular opinion, which felt that they were alien,62 hostile to the
commonwealth and the pleasures of life, even if some specific charge was
required to bring them to justice.63 Toleration there was if the Christians
themselves did not provoke accusations, but this toleration was political
rather than juridical; punishment, discretionary admittedly, but including
the aggravated death penalty,64 was often imposed on those brought before
58
CJ 9.41.9, AD 290.
59
CJ 9.41.8pr, Diocletian on soldiers; 9.41.11, Diocletian on the upper ranks below the
senatorial and on decurions; Lact., MP 21.3–4, records the removal of their privileges by
Galerius.
60
D 48.18.10.1, Arcadius Charisius, who is a very late jurist; CJ 9.41.16.1, AD 376, adds
magic (quae nefanda dictu sunt) to treason, as not giving decurions immunity from torture.
61
Eusebius, HE 5.1.43–44 and 50.
62
Tacitus, Ann. 15.44.
63
I suggest that this might have run: ‘Lucius Titius put himself on record as accusing Per-
petua of being guilty against the public discipline of ancestral custom, in that she did . . .’.
64
But not always; Tert. ad Scap. 4.3 records the proconsul Vespronius Candidus sending a
Christian back to his home town for a punishment which must by definition have been
less than capital; another proconsul, Valerius Pudens, refused to try a Christian on the
basis of an examining magistrate’s written statement, and released him; Cingius (or Cin-
cius) Severus simply dismissed confessed Christians; all these were in Africa. In Asia,
another governor, Arrius Antoninus, exasperated with a crowd of would-be martyrs, exe-
cuted a few, but told the rest that if they wanted to die they could easily find a rope or a
cliff (ad Scap. 5.1). Peregrinus, who became a Christian before turning to Cynic philoso-
phy, was released by the legate of Syria without even a beating, admittedly to avoid his
martyrdom making too big a stir (Lucian, Peregrinus, 14). And it is worth remembering
that capital punishment could be imposed for repeated hooliganism (D 48.19.28.3, Call.).
108
the courts if they persisted in their confession and refused to provide coun-
ter-evidence – it required no more – by performing a sacrifice before a statue
of the emperor.65 Sporadic repression never completely ceased.66 During the
third century, however, things changed. This was an age of increasing
superstition, of belief in the occult, in dreams and visions, for Christians as
well as pagans. Oracles became popular again; Diocletian was to consult
Apollo of Miletus before embarking on his persecution.67 Miracle-working
attracted widespread belief.68 Demons and sorcerers were seen as rife.69
The emperors responsible for the criminalization of Christianity, Decius,
and then Valerian, were of traditional, though not Roman or even Italian,
senatorial families, brought up to respect the Roman gods and view their
cultivation as essential for the well-being of Rome. This respect had been
observed in the millennial games of April 248, offered by the Emperor
Philip and his son; traditional Rome had done well, and would continue to
do well, by following ancestral custom. Further, Rome needed the friend-
ship of the gods in her struggles against the Goths and other barbarians,
and the recurrence of plague. Decius had been brought up in this tradition
and, in view of the new religious competition, it must have seemed rea-
sonable to him, soon after he came to Rome in late 249,70 to declare a
supplicatio by the whole Roman people, all the inhabitants of the Empire,71
a unanimous sacrifice to the gods. Jews, as an identifiable people, following
their own mos maiorum, could be exempted from such a requirement,72 but
Christians had no such respectability. As Clarke has said:
If the rally was to be really effective the leaders of these dissident

Christian communities would need to be sought out so that they
would bring their flocks with them to the public altars of the gods
of Empire (their own god they might continue to worship).73
65
Pliny, Ep. 10.96.5.
66
E.g. Cyprian, Ep. 39.3, on Celerinus’ martyred uncles and grandmother.
67
Lact. MP 11.7; he also records that Galerius’ mother was highly superstitious and influ-
enced her son.
68
Philostratus, Vita Ap. passim.
69
Flint (1999), 281–92; Alfoldy (1974).
70
Pope Fabian was dead by 20 January 250.
71
This universality is proved from Cyprian, Ep. 15.4 (concerned with treatment of the
lapsed), where he refers to ‘qui propinqui et adfines et liberti et domestici esse adsever-
entur’ of the person receiving the certificate recording that sacrifice had been made; also
Ep. 55.13.2 refers to those who sacrificed on behalf of wife, children et domum totam. Cf.
Eusebius, Mart. Pal. 9.2, for participation in the sacrifice required from slaves and babies
in the Great Persecution. See also Keresztes (1975a).
72
Smallwood (1976), 540; cf. D 50.2.3.3, Ulpian.
73
Clarke (1984), vol. I, p.24.
109
The edict has not survived verbatim, but the libelli, the certificates recording
obedience to the edict, record that the recipients ‘make sacrifice, pour liba-
tion and taste of the sacrificial victim’, and before witnesses.74 Local autho-
rities were responsible for putting the edict into effect; there was a
commission of five prominent citizens together with the city magistrates in
Carthage, whereas in the town of Capsa there seems to have been just one
magistrate.75 The libelli were fairly clearly part of the original organisation;
they seem to have been drafted to a standard formula and were counter-
signed by a commissioner. Perhaps, as with the Egyptian census, there
might have been multiple copies, one kept by the signatory, the other by
the relevant authorities.76 It is not, however, clear what lists can have been
used by the local officials to tick off the sacrificers; local census returns and
tax registers were unlikely to include slaves, and possibly might be limited
to adults, or even to adult males. Hence it seems probable that some
Christians, perhaps many in some areas, were never called,77 but of course
they risked delation by their neighbours, unless they took refuge either in city
crowds,78 or in the countryside.79 After the time for the supplication was defi-
nitely past, latecomers seem to have been sent before the provincial governor,
and it seems quite likely that after twelve months the special commissions
were dissolved. At any rate, Bishop Cyprian was planning his public return
to Carthage before the end of March 251;80 the persecution arising from the
edict seems simply to have petered out.81 After all, if the supplicatio had
been designed as one glorious gesture, it would be counter-productive to be
too concerned with it a year afterwards. There is no evidence that Decius was
particularly hostile to the Christians, and there is enough to indicate that
his intentions were positive, for the good of Rome.82 However, it is quite
clear that the government suspected that the Christians would be troublesome;
the leaders of the churches in the most significant cities were seized early in
74
E.g. FIRA iii 189, p. 593, taken from the forty-one (all papyri) edited by J.R. Knipfing
(1923b). On the fixed time, see Cyprian, de lapsis 3.
75
Cyprian, Ep. 43.3.1; 56.1.1. In Asia we find a temple warden and colleagues (ACM,
Pionii, 3.1).
76
Rives (1999), also citing D 50.15.3–4, Ulpian.
77
They are known as the stantes, and were often treated as potential confessors (e.g. Cyprian,
Ep. 19.2.2).
78
Cyprian, Ep. 21.4.1; 30.8.1 for those who went to Rome. Others came to Carthage;
Cyprian was anxious that they should be properly looked after, and provided the means
(Ep. 5.1.2; 7.2; 8.3).
79
Eusebius, HE 6.42.2; Cyprian, Ep. 8.1.1, from the Roman to the African clergy on
Cyprian’s withdrawal. See, more generally, Tertullian de fuga, passim. In a later persecution
Agape and her companions were to take to the hills, ACM, Agape et al. 1.2.
80
Cyprian, Ep. 43.1.2; 55.3.2–6.1
81
Celerinus, newly ordained lector, is, among other confessors, under no constraint
(Cyprian, Ep. 39.1.1).
82
Pohlsander (1986).
110
250 and put to death, if they had not hidden themselves – Pope Fabian at
Rome, Babylas at Antioch, Alexander at Jerusalem, fell into the first category,83
Dionysius of Alexandria84 and Cyprian of Carthage the second.85 And Cyprian’s
flight was not unnoticed; he suffered confiscation as a result, whether as a
penalty or, more probably, a contumaciously absent accused.86
Pionius
Pionius, a priest (presbyter), was arrested in Smyrna87 on 23 February 250,
along with a holy woman called Sabina and one Asclepiades; the Acta claims
to be based on his own writing, but seems to have been edited to make
close the comparison with Polycarp. Polemon, the temple warden, and
clearly one of the commission designated to enforce the Decian edict in
Smyrna, came with his men to take them, as self-confessed Christians, to
the agora to offer sacrifice and taste forbidden meats.88 He led them off
without any physical restraint, but they were wearing woven chains around
their necks, which Pionius had made for them, to make clear that they were
not going to the agora of their own free will, nor intending to apostatize, as
others had.89 Once there before the tribunal, Polemon told Pionius he would
be wise to offer sacrifice like everyone else, and thus avoid punishment.
Pionius was apparently allowed to make a lengthy speech, to an attentive
crowd, rebuking both Greeks and Jews, and maintaining the Christian
faith. The commissioners attempted persuasion, but to no avail.90 The people
here were not hostile (unless this is a passage interpolated from much later
when the world was largely Christian), but wished to adjourn to the theatre
to hear more. Polemon, however, was warned that this might lead to a riot.
Nevertheless there were further attempts to persuade the confessors, with Sabina
being cautioned that she risked being put into a brothel (eis porneion); even if
83
Eusebius, HE 6.39.1–4. But Fabian was for months the only martyr in Rome – to be
deduced from Cyprian Ep. 21, and comment by Clarke (1984), vol. I, p. 314.
84
Eusebius, HE 6.40: a soldier was sent to arrest him in the same hour as the edict was
published; in HE 6.41–42 Bishop Dionysius recounts the pogrom in Alexandria in 248,
but this was seemingly spontaneous, under no legal authority. A succession of terrible
earthquakes had led to a similar unofficial pogrom in Cappadocia c. AD 235 (Cyprian, Ep.
75.10; cf. Eusebius, HE 6.28).
85
Cyprian, Ep. 5; 7.1; 20.1.
86
Cyprian, Ep. 66.4.1 records the public notice, inhibiting his debtors, among other things;
cf. D 48.17.5pr and 3, Modestinus.
87
Eusebius, HE 4.15.47; Eusebius places Pionius as a contemporary of Polycarp, but the
demands made on him and his companions indicate that it was in the Decian persecution,
as ACM, Pionii, 2.1, states. The fullest treatment of this martyrdom is in Robert (1994).
88
St Paul, in 1 Corinthians 8 and 10.14–33, had held that there was no harm in itself in
eating foods dedicated to false gods, because they did not exist; the harm lay in the
scandal it could cause.
89
ACM, Pion. 2.1–3.7.
90
ACM, Pion. 4.1–6.5.
111
they were Christians, could they not be persuaded to sacrifice to the

emperor if not the gods? On their repeated refusal, the notary was brought
in, to take down the prisoners’ details for the record; Sabina gave a false name,
as she had been cast out by her former mistress when she was converted.91
This is perhaps a suitable place to point out that the provincial governors,
like the authorities at Rome, were aided by a significant staff, some attached
to them in their capacity of magistrate, others seconded from the local army
unit, but in both cases men who were permanently based in a particular
province.92 Those whom we find arresting Christians were sometimes from
the office staff,93 sometimes soldiers,94 and sometimes from the local city.95
Then there were the officials of the governor’s own judicial staff, among
them the commentariensis, a senior post, in charge of criminal proceedings,96
while there were secretaries to write things down;97 criers or heralds98 would
also be here. There might also be lawyers at the court.99 There were prison
guards,100 soldiers to escort the prisoners,101 and, obviously, torturers.
There were those at the amphitheatre, executioners,102 and also gladia-
tors.103 However, the Christian use of technical terms is not always accurate.
91
ACM, Pion. 7.1–9.9.
92
D 12.1.34, Paul; they were therefore not subject to repetundae restrictions, but able to
lend money at interest to the provincials. Lopuszanski (1951); Jones (1964); Breeze
(1974); Robinson (1992), 191–95.
93
Probably the strator and equistrator who arrested Cyprian, ACM, Cyprian 2.2; Felix, 9;
frumentarii in Cyprian, Ep. 81.1.1.
94
The beneficiarii, senior NCOs, who arrested Fructuosus, were also at the amphitheatre
(ACM, Fruct. 1.2; 4.1); stationarii, mentioned in Marian 4.3, were soldiers stationed for
policing duties at major crossroads and near cities; a stationarius of senior rank arrested
Agape and companions (ACM, Agape 3.1).
95
Probably true of the attendants (prosecutores) in Perpetua 3.1; Polemon, the neokoros or
temple warden, in Pionius, 3.1; Felix’ deductor was a local decurion (Felix, 22).
96
At least in the Later Empire (Lydus de mag. 3.16) it was his responsibility to see to the
arrest and safekeeping of the accused, his production before the governor, the correct
recording of the proceedings, the questioning of the accused under torture, and the car-
rying out of the sentence on conviction. He was present in the amphitheatre for the
death of Pionius, 21.1; he is reading the charge to the court in Agape 3.1; and again in
Crispina 1.1, where he is also the one to see that her head is shaved, 3.1.
97
As in Pionius 9.1 and 19.1; Crispina 4.1.
98
Found in Polycarp 12.1; the Scillitan martyrs 16.
99
Many in the Acta Phileas (XII/4.1; 5.5; 6.2 and 4; 8.1).
100
In ACM, Perpetua, the chief warder (praepositus carceris), Pudens, who became a Christian,
was an optio, roughly a sergeant (9.1); we also hear of ministri cataractariorum [sic] (Perp.
15.5; these are also mentioned in Mont. 17.1).
101
Mont. 4.2; Felix, 31.
102
The confector in Pionius 21.3; the speculator to whom Cyprian gave 25 aurei, ACM, Cyprian
5.4; the carnifex in Marian 12.1 and in Mont. 15.1; the slave Zosimus, whose duties were
wider (Agape 5.8 and 6.1), seems to have been the city executioner; simply a minister in
Iren. 5.6; carnifices in Acta Phileas 9.3.
103
In Perpetua, 18.9; 19.5; 21.9, the gladiators were venatores, perhaps men condemned to
the hunting games.
112
Then Pionius and his two companions were taken to the prison, there to
await the arrival of the governor; Polemon pointed out to the now restive
crowd that the local authorities did not have jurisdiction. In the prison they
found other Christians. Pionius made the gaolers angry by refusing to
accept gifts from the visiting faithful; clearly it was normal for those
Christians who were not under arrest to bribe the gaolers to allow this, or
else for the gaolers to take their share of what was brought. So they were
put into the inner prison, dark and stifling, as we know from other sources,
but they remained so affable that the prison warden relented, and they were
allowed to discourse and to pray, night and day, in the company of many
visitors.104
Prisons in the ancient world seem to have been at least as nasty as modern
ones, dark places of stifling heat (in our Mediterranean sources; Romano-
British prisons will undoubtedly have been cold and damp), thirst and
hunger.105 We hear little about them in the sources, except for the martyr-
doms, where the view is from below; normally prisoners’ very condition
made them invisible people. Perhaps on the model of the carcer and the
Tullianum at Rome, most prisons seem to have had an outer and an inner
area.106 Prison was deliberately a place of terror,107 designed to strip the
prisoner of all dignity, and to induce confessions by both physical and psy-
chological means. There were rations,108 but they were minimal, for friends
and family were expected to supply prisoners’ wants; there seem to have
been few visiting restrictions. Such visits, of course, offered prison guards an
opportunity to demand bribes,109 and it is clear that this practice was
widely accepted. Only in the Later Empire, perhaps under Christian influ-
ence since Christians will have been prepared to acknowledge imprison-
ment, were there serious attempts to improve prison conditions.
Constantine tried to shorten the time spent in prison by speeding the
holding of a trial; he forbade ill-treatment by the guards, in particular
starving the prisoners. The prisoner brought to court should not be
in manacles made of iron that cleave to the bones, but in looser

chains, so that there may be no torture and yet the custody may
remain secure. When incarcerated he must not suffer the darkness
of an inner prison [which was presumably for bandits, or those who
104
ACM, Pion. 10.1–11.7. There does not seem to be segregation of the sexes in this prison.
105
E.g. Eusebius, HE 5.1.27; Cyprian Ep. 22.2. See generally the essays in Bertrand-
Dagenbach (1999); Lovato (1994) is concerned with Romans rather than provincials.
106
E.g. Acts of the Apostles 16.24; ACM, Perp. 3.7; Pion. 11.4; Felix 26; CTh 9.3.1, AD 320.
107
Seneca, ep. 24.3, reckoned imprisonment ranked between exile and death.
108
They were mentioned very unfavourably in Montanus and Lucius 6.2–5; 9.3; 21.12; Irene,
in Agape 5.8, was to receive a ration, but of merely one loaf a day.
109
ACM, Perp. 3.7; Pionius, 11.3–5. There is unsuccessful bribery, hoping to be given the
bodies to bury, in the Lyons affair, HE 5.1.61.
113
had attempted escape], but he must be kept in good health by the

enjoyment of light . . . 110
Proper records were to be kept of those assigned to ‘squalid custody’.111

Sexual segregation was ordered.112 Governors were to inspect prisoners
weekly, see to it that food – two or three libellae (a tenth of a denarius, so
presumably as much bread as this would buy) – was supplied to those who
did not have it, and that they had a weekly bath.113
Another attempt was made by the local officials to persuade them to
sacrifice, saying that Euctemon, apostate bishop of Smyrna, and one Lepi-
dus, were asking for them in the temple of Nemesis; Pionius said that they
preferred to await the arrival of the proconsul. However, the local cavalry
commander (hipparchos) had them brought forcibly – Pionius struggled so
hard that six soldiers were needed to carry him – to the agora, and to the
temple of Nemesis where Euctemon was still in an attitude of worship, and
Lepidus was cursing Christ. Pionius rebuked the authorities for their lack of
respect for their own laws: ‘You punish us for disobeying, and yet you too
do not obey; you were ordered to punish us, not to force us against our
wills.’114 The public slave who was standing there with the sacrificial meat
did not dare approach any of the prisoners, but simply ate it himself.115 All
were then sent back to the prison, but Pionius was clubbed on the head by
one of the soldiers, doubtless in retaliation for the struggle he had put up
against the hipparchos’ order.116
The proconsul of Asia, Quintillianus, arrived in due course; Pionius was
brought before the tribunal on 12 March, and testified, with minutes being
taken down by secretaries. There was a fairly formal exchange between the
two men, with Pionius giving his name, identifying himself as a Christian
and a presbyter, and refusing to sacrifice, although the proconsul, perhaps not
seriously, said that he could sacrifice to the air.117 Then it seems that Pionius
was put to the torture, being tortured by his fingernails, but he continued
110
CTh 9.3.1, AD 320; cf. 9.1.18, AD 396.
111
CTh 9.3.2, AD 326; 9.3.4, AD 365; 9.3.6, AD 380.
112
CTh 9.3.3, AD 340.
113
CTh 9.3.7, AD 409. Bishops too had a role as prison visitors, to heal the sick, feed the
poor and console the innocent, but also to make sure that prisoners were brought before
the competent judge and not left to languish (Sirm. 13, AD 419).
114
ACM, Pion. 15.1–16.6; this attitude, and the correct response by the Roman authorities,
occurs in ACM, Perp. 18.5–6, and Cyprian 1.5; it is also noteworthy that the authorities
do not seem to have wrested the sacred books from Felix.
115
ACM, Pion. 18.5; it will have speeded up the proceedings considerably if the authorities
normally provided the already sacrificed and cooked meat, cf. 18.13–14.
116
ACM, Pion. 18.10.
117
ACM, Pion. 19.1–13. D 48.3.6, Marcian, makes clear that a governor must not act as
though charges made against a remand prisoner had been proved, but must make an
examination ab initio.
114
his refusal to sacrifice. Remarking that volunteer gladiators equally despised

death, Quintillianus sentenced him to the fire. ‘The sentence was then read
in Latin from a tablet: ‘‘Whereas Pionius has admitted that he is a Christian,
we hereby sentence him to be burned alive’’.’118 He went immediately to
the amphitheatre, where he was burned together with another Christian,
from the Marcionite heresy. The fire seems to have been extinguished before
the body was consumed, but there is no mention of any coup de grâce.119
Rather disappointingly, we hear nothing of the fates of the others; they may
even have been released. More likely they were just left in prison, where the
confessors could think that the emperor had ordered that they should die
from hunger and thirst in the sweltering inner prison.120
The lapsed
The Decian persecution petered out, perhaps partly because it had been
difficult to administer. But unlike previous, and perhaps later, persecutions,
there were very many who had denied their faith and sacrificed121 because,
as Christianity had spread more widely, Christians were no longer ‘saints’
but ordinary men and women.122 Some of these were true apostates, but as
the letters of St Cyprian show, many had simply not had courage enough to
risk their lives and had sacrificed, so to speak, with their fingers crossed.123
As Cyprian wrote, there was a significant difference between one who had
volunteered to sacrifice and one who only did so under compulsion,124
118
ACM, Pion. 20.1–7. Reading out the sentence as written on a tablet or a sheet of papyrus
seems to have been the proper way of issuing it: cf. the Scillitan Martyrs, Cyprian, Agape
and Irene, and Crispina. It is also how Augustus, in the afterlife, gives his sentence on
Claudius (Seneca, Apoc. 11).
119
ACM, Pion. 21–22; cf. ACM, Polycarp, ss. 12–16. Gusty winds might make a fire unre-
liable, and the beasts were not always eager to attack human beings (ACM, Perp. 19.6,
and 21; Eusebius, HE 5.1.40). Spectacular executions could go wrong, so it was better to
have men at hand who could make sure.
120
Cyprian, Ep. 22.2.
121
Even bishops – as well as Euctemon of Smyrna, described above, two in Spain are men-
tioned in Cyprian, Ep. 67.1.1.
122
See Cyprian, Ep. 54 on the tares as well as the wheat within the Church.
123
Two women known to Cyprian, Numeria and Candida, had sacrificed, but since then
they had been busy meeting refugees and other visitors at Rome’s harbour and escorting
them to the city; at the time of writing they had looked after the needs of sixty-five
confessors (Cyprian, Ep. 21.4.1).
124
There was a woman named Bona, who was dragged to the temple by her husband; ‘she
did not sully her conscience, but they, by holding her hands, thus made the sacrifice
themselves. She then started to cry out in protest: ‘‘I did not do it; you have done it.’’
And so she too was exiled’ (Cyprian, Ep. 24.11). Ste Croix (1954) points out that there
were no canons on sacrifice and incense at the Council of Arles held in 314, unlike the
Council of Ancyra in the East. In the West thurification does not seem to have been
considered a very serious lapse.
115
between one who had brought his whole family and one who sacrificed on
their behalf, thus protecting them at the cost of endangering his own
soul, and similarly between a landowner who had forced his tenants to
sacrifice and one who spared them and welcomed refugees.125 Offering
incense (thurification) was perhaps a less blameworthy form of sacrifice,
since it was not aggravated by the eating of sacrificial meat.126 Others had
not sacrificed, but had acquired a libellus recording their conformity. Some
of these might have done so by offering payment to avoid what was for-
bidden;127 others seem to have acquired libelli through proxies.128 These
two groups were known as the sacrificati and the libellatici.129 There were
also those who, for some reason given a second chance to confess their faith,
redeemed themselves by doing so; these seem to have been sent into exile.130
There is no evidence for fresh persecution, but there may have been new
delations, perhaps for fulfilling such Christian duties as visiting the sick,
burying the dead, helping widows and orphans, visiting and bringing relief
to prisoners.131
Valerian and the criminalization of Christianity

This problem of dealing with the repentant lapsed took up most of Bishop
Cyprian’s energies132 until persecution was resumed in or before August
257 under Valerian. The reasons for this resumption after nearly four years
of his reign are obscure, but there had already been fears of persecution
under Gallus,133 and the prevalence of plague made people ready to find a
scapegoat. One possibility is that the church had become sufficiently weal-
thy for its property to be attractive to an emperor enmeshed in a financial
crisis.134 Another is that in the province of Pontus, the Christians seem to
have given aid to the invading Goths.135 But Bishop Dionysius of Alexan-
dria assigned to Macrianus, Valerian’s a rationibus (roughly, chief secretary to
125
Cyprian, Ep. 55.13.2.
126
Cyprian, Ep. 55.2.1 and 55.11.
127
Cyprian, Ep. 55.14.1; cf. 21.3.2.
128
Cyprian, Ep. 30.1.
129
The distinction was also made at Rome (Cyprian, Ep. 30.3.1–2). Ste Croix (1954) points
out that in the East, in contrast to the West libellaticii were not held blameworthy, as the
Ancyra canons show.
130
Cyprian, Ep. 24.1.
131
As in Cyprian, Ep. 8.3; 13.7. It could even be said, by a hostile source, that some went
to prison to get to enjoy the luxuries that were brought in (Lucian, Peregrinus, 14);
Cyprian had seen this danger, and wrote that drunkenness and debauchery were to be
found among soi-disant Christians (Cyprian, Ep. 13.4.1).
132
Eusebius’ two references to Cyprian are both in this context (HE 6.43.3; 7.2.3).
133
Cyprian, Ep. 57.1.2; 58.
134
Bovini (1948), ch. iii.
135
For both these views, see Frend (1965), 422–23.
116
the imperial treasury), a religious motivation for his encouragement of the

persecution.136 Whatever its proximate cause, Valerian’s first edict forbade
Christians to hold assemblies, including such events as funerals, under pain
of capital punishment, and required some recognition of the Roman rites,
without going so far as to require worship of the Roman gods, or the
abandonment of other gods.
On 30 August 257 Cyprian was called, or brought, before the proconsul
of Africa, Aspasius Paternus, in private (in secretario). Paternus asked
Cyprian, whom he quite likely knew and whose position he certainly knew,
what he had to say to the edict. On Cyprian’s replying that he served the
one God, and prayed to Him for the health of the emperors, Paternus asked
if he would be willing to go as an exile to the town of Curubis (only some
50 kilometres away), and he agreed. Paternus then asked for the names of
the presbyters in Carthage, presumably since they too were leaders of the
church. Cyprian replied that it was a good and useful provision of the laws
that delators were forbidden; therefore he could not give this information.
They were living quietly in their communities, ‘since our discipline forbids
anyone to surrender voluntarily’, but if they were sought they would be
found.137 Paternus then reiterated that the emperors had ordered Christians
not to hold meetings or enter cemeteries.138 Temporary exile seems to have
been widely applied;139 his discretion, rather than his orders, probably led
the legate in Numidia to condemn some clergy to the mines.140 Cyprian
remained for a while in Curubis. The legal position is unclear. He was per-
haps technically relegated from Carthage,141 but we find him a year later
back in Carthage, staying on his own estate.142 Some who were exiled
undoubtedly also suffered loss of property, although Cyprian does not seem
136
Eusebius, HE 7.10.
137
ACM, Cyprian 1; Cyprian, Ep. 77.2.1–2. The Early Church was in general hostile to
those who actively sought martyrdom because of the risk of recantation; see ACM,
Polycarp, 4. Christ himself had left Judaea for Galilee (Ev. John 7.1; 10.39–40).
138
‘ne in aliquibus locis conciliabula faciant nec coemeteria ingrediantur.’ The concept of a
cemetery was a new one, arising from the burial of martyrs close to a church building.
Pagan Romans were buried in plots along, for example, the via Appia, or in private land
(see FIRA iii 86, p. 276).
139
E.g. Eusebius, HE 7.11.3–11 and 14–17, on Dionysius of Alexandria and some of his
clergy.
140
Cyprian Ep. 76.2.2 and 4; 77.3.1; this was technically a capital penalty (D 48.19.28pr,
Callistratus).
141
Governors did not have the power to deport – a capital penalty (D 48.19.2.1; 48.22.6.1;
48.22.15.1) – but they could relegate, fine, and sequester or confiscate property (D
48.17.2pr, Macer; 48.17.5, Modestinus; 48.22.4–5, Marcian).
142
At much the same time Dionysius of Alexandria had been recalled from distant Cephro
to a town much closer to Alexandria (Eusebius, HE 7.11.10–17). Cyprian will not have
returned without permission; in Ep.13.4.1, he rebuked those who did because, if caught,
they would now be condemned not as Christians but as criminals. It is just possible that
this was a form of house arrest (D 48.22.9, Ulpian, and 10, Marcian).
117
to have fallen into this category;143 he had already suffered some loss of
property in the Decian persecution.
Cyprian had received advance information from Rome about Valerian’s
second edict, for he was expecting to be summoned again before the gover-
nor, now Galerius Maximus.144 This second edict, in the form of an oratio to
the Senate, and also sent as a mandate to provincial governors, may have
sought information on the enforcement of the earlier edict;145 it was pub-
lished sometime in the summer of 258. It had reached Rome by August, for
Pope Sixtus, along with four deacons, was put to death on 6 August in the
cemetery of Callistus,146 and the persecution was in full swing under the
prefects.147 Bishops, priests and deacons were to be summarily executed,
while senators, egregii, such as imperial procurators, and equestrians who
persisted in adherence to Christianity were to lose their status and forfeit
their property; obduracy would bring capital punishment (probably nor-
mally meaning deportation). Matrons, presumably women of senatorial or
equestrian rank, were to face confiscation of all property and relegation.
Caesariani, most likely meaning those serving as lower officials in the imperial
household, perhaps mostly freedmen, who had either confessed earlier or did
so now, were to have their goods confiscated and be sent in chains to forced
labour on imperial estates.148 We know too that some of those sentenced
under the earlier edict were now recalled from exile and executed.149
Cyprian
News was brought that Cyprian was to be arrested and taken to Utica (by
soldiers – frumentarii – of the proconsul’s officium); he was advised to avoid
this by withdrawing temporarily from his country estate. This he did, not
to escape his martyrdom, but so that he would not be forced to confess his
faith in a city other than that of his own see; the proconsul would soon
return from the assize and be back in Carthage.150 He must soon have
143
Cyprian, Ep. 19.2.3; 24.1.1.
144
ACM, Cypriani 2.
145
Unlike the reaction to Decius’ edict, which was often cowardly, this first edict of Valer-
ian seems to have been widely and flagrantly flouted. This was not tolerable, but Decius’
universalist approach had been shown to be unworkable.
146
But his informant must have left Rome almost immediately, because there is no mention
of Lawrence and his companions who were martyred on 10 August (Cyprian, Ep. 80.1.4).
147
Cyprian uses the plural, perhaps referring to the Urban Prefect assisted by the praefectus
vigilum, perhaps to the Praetorian Prefects – see further, Clarke (1975).
148
Cyprian, Ep. 80.1; this letter was written to a fellow African bishop, who had pre-
sumably asked if Cyprian could confirm the rumours.
149
Not just Cyprian but, for example, bishops Agapius and Secundinus (ACM, Mar. and Jac. 3).
150
Cyprian, Ep. 81. In this letter to his clergy and laity, Cyprian reiterated his instruction
that they were to remain calm, and not stir up trouble by pushing forward for voluntary
martyrdom; only if arrested and questioned must a Christian do more than profess his
faith, he must confess it.
118
returned, for it was there that, on 13 September, two fairly senior officers151
on the proconsul’s staff arrived at the estate, and took him in a wagon to a
suburban estate where Galerius Maximus was nursing his health – in fact,
he was to die only a few days after Cyprian’s execution. Cyprian was
remanded until the following day, and spent the night at the proconsular
palace in Carthage, in the care of the strator. Here all the Christians of the
city were able to visit him.152 The proconsul did not come into the city, but
remained at the ager Sexti, where Cyprian was arraigned before him in the
Sauciolan hall. Galerius Maximus formally checked his identity, and asked if
he had performed the required religious rites (under the first edict). On
Cyprian’s denial, the proconsul bade him be careful, but Cyprian replied
that he should carry out his orders, for in a matter so legally clear there was
no need for carefulness.153 Galerius Maximus consulted with his consilium,
his advisers, and then spoke reluctantly, condemning, as an example,
Cyprian for his persistence in sacrilege, conspiracy and enmity to the gods
of Rome. In the customary manner, he read his decision from a tablet:
‘Thascius Cyprian is sentenced to die by the sword’, to which Cyprian
replied, ‘Thanks be to God’ (Deo gratias).154
He was led out into the grounds of the estate. He removed his cloak so
that he could kneel on it, then removed his dalmatic and gave it to his
deacons – so clearly this governor at least was reluctant to execute summa-
rily the lesser clergy – and told his friends to give the executioner (spec-
ulator) 25 gold pieces.155 He then himself bound his eyes with his kerchief,
although a priest tied the knot for him, and thus he went to his death. His
body was laid out nearby and remained there until nightfall, to satisfy the
curiosity of the pagans. Then it was taken up by the faithful and buried,
openly not secretly.156 It is evident that Galerius Maximus (whose final ill-
ness might have affected him either way) was reluctant to impose death
151
strator and equistrator a custodiis; Lopuszanski (1951). Strator seems to vary between
groom and stablemaster via equerry, but always horsy, so why equistrator? Often the rank
is clearly sub-clerical, on a par with praecones and standard-bearers, but Symm. Rel. 38
describes a palatine official who seems to be of some standing.
152
ACM, Cypriani 2.
153
ACM, Cypriani 3; ‘in re tam iusta nulla est consultatio.’
154
ACM, Cypriani 4.
155
D 48.20.6, Ulpian, states that prisoners could keep their own clothes, the small change
in their money belts, rings of low value, and so on, right up until they were stripped for
execution; the proceeds from such things were not the executioners’ perquisites but kept
by the governor as petty cash. It is clear, however, that Cyprian was receiving the special
treatment appropriate to someone of the upper ranks.
156
ACM, Cypriani 5, despite this being explicitly forbidden in the first edict. In earlier
times the bodies, or the ashes, of those executed were to be delivered to their relatives or
friends, except in cases of treason (D 48.24.1, Ulpian, and 3, Paul). See also ACM,
Polycarp, ss. 17–18, where this was done, and Lyons, where it was not (Eusebius, HE
5.1.57–62).
119
even on the bishop, the leader of the local church, and that he left alone the
other clergy, and made no attempt to interfere with the illegal funeral.
After Galerius’ death there were other martyrdoms in Africa, at which
again due process seems to have been observed. The prisoners had to wait
for several months until the arrival of a new governor, and then they were
sentenced to the sword.157 In Numidia we hear of the deaths of Marianus
and James and their companions.158 In Spain, in January 259, Bishop
Fructuosus of Tarragona was given time to change his slippers for sandals
before being led to prison.159 He was questioned by the governor, appar-
ently without torture, and sentenced to the fire.160 The crowd is here por-
trayed as sympathetic rather than hostile; many persons offered Fructuosus
drugged wine to drink. The Christians were able to collect the ashes with-
out hindrance.161 In spite of there now being a general law against the
practice of Christianity, its enforcement was clearly going to be sporadic.
This persecution too seems to have petered out; it was effectively ended in
261 (after the Persian capture of the Emperor Valerian) by Gallienus who
wrote to the bishops of Egypt, not legitimating the church, but restoring to
the Christians their places of worship, including cemeteries, and ordering
none to molest them.162
The ‘great’ persecution

Years of peace and reconstruction followed for the Church, although there
were occasional bad moments, such as the martyrdom of Marinus, which
arose from his jealous delation by a rival for promotion to the centur-
ionate.163 Then came the ‘great’ persecution, urged by Galerius, at that time
157
ACM, Montani & Lucii; one of the group, whose friends had (falsely) denied that he was a
deacon, was only sentenced after convincing the governor of his status (Mont. & Luc.
23.12.3; 23.20).
158
ACM, Mar. & Jac.
159
ACM, Fruct. 1.
160
ACM, Fruct. 2. The governor seems to have enjoyed black humour. He asked Fructuosus
if he knew that the (pagan) gods existed, and when the bishop said ‘No’, he responded
‘You will’; when he asked Fructuosus if he was a bishop and received ‘I am’, he replied
‘You were’.
161
ACM, Fruct. 3.1–2; 6.1–2.
162
Eusebius, HE 7.13.
163
Eusebius, HE 7.15. The martyrdom of Maximilian in 295 is obscure. He refused
recruitment into the army, on the grounds that Christians could not serve, but this was
simply not true, as the proconsul pointed out (ACM Max. 2.9; cf. Juli 2); perhaps he was
a member of the Montanist or some similar sect. What seems reasonably certain is that
he was refusing conscription; army service was no longer just for volunteers. The change
of heart in the same year of the senior centurion Marcellus is also unexplained; it must
be relevant that it sprang in both recensions from the celebration of the emperors’ official
birthdays (Marc. (M)1.1; (N) 2.1). Both these martyrs were punished under military law
rather than for Christianity as such.
120
Diocletian’s Caesar in the East, and agreed to by Diocletian. (It should be

noted that this only occurred nearly twenty years after Diocletian’s acces-
sion.164) It was prefigured by Diocletian’s edict against the Manichees, per-
haps in 297 but more likely 302, which has survived.165 (Manichaeism was,
of course, the religion of the Persians, the only external enemy on a par with
the Roman Empire.) The Manichaean leaders and their books were to be seized
and burned, other adherents of the sect were to suffer simple death and con-
fiscation, and although the lives of honestiores were to be spared, they were to
be sent to the mines (which, however, was legally a capital sentence, and
was likely to result in physical death) and their estates confiscated. The actual
trigger for the persecution of Christians was relatively trivial.166 Eusebius
seems to understand the renewal of persecution as a punishment on a church
which had succumbed to pride, sloth and sectarian fighting.167 Unfortunately,
perhaps because of the natural emotion of one who was for much of the time
an eye-witness,168 Eusebius is much less useful on any legal aspects for this period
than when he was reporting earlier persecution, often from trial accounts.
The first edict, and the martyrdom of Felix

There were four edicts against the Christians, which can be fairly safely
reconstructed. The first,169 issued at Nicomedia, on 23 February (Lactan-
tius) or March (Eusebius) 303, and also published in the West, said that
those who persisted in the faith were to lose any juridical privileges they
had enjoyed, becoming subject to torture,170 and that any action could be
brought against them in court but that they could not sue for injuries done
to them;171 further, all Christian churches were to be destroyed, all sacred
164
Baynes (1956), 662–65.
165
Coll. 15.3. Bruce (1983), like Molthagen (1970), argues for the earlier date, Corcoran
(1996), 135–36, together with Mommsen (1899), for the later.
166
Lact. MP 10–11, gives the casus; Christians in attendance on the emperor crossed
themselves during the consultation of the entrails by the haruspices, and in consequence
there were no signs as to the future even after repeated sacrifices; the sign of the Cross
was understood both by Christian and pagan as very effective against demons and pagan
gods. Eusebius and, according to him, Constantine, could find no rational explanation
for the renewal of persecution. Frend (1965), 477–81, thinks it was based on many of
the same factors that had motivated Decius, the traditional values of Rome.
167
Eusebius, HE 8.1, especially at 8.1.7.
168
Eusebius, HE 8.9.4.
169
Eusebius HE 8.2.4; 9.10.8; mart. Pal. pr. 1, which says April; Lact. MP 13.1.
170
CJ 9.41.11, Diocletian, cites Marcus Aurelius as having held that the higher equestrian
grades, down to and including their grandsons, should not be tortured or given plebeian
punishments. This implies that those lower in the social scale were subject to torture,
but the borderline may have been elsewhere before the constitutio Antoniniana. For Ulpian
(D 50.2.2.2), some fifty years later, the same privilege applied to decurions and their
children.
171
Lact. MP 12.
121
books handed over to be burned, and freedmen serving the emperor as offi-
cials were to be reduced to slavery.172 Assemblies of Christians were pre-
sumably forbidden. (There were different reactions by Christians in West
and East to those who handed over the scriptures (traditio); it was not seen
as a serious matter in the East, whereas in the West it justified the removal
of a man from his clerical status.173) In the West generally the edict was
sporadically enforced. The evidence shows Constantius, who was the Caesar
controlling Gaul and Britain, ‘contenting himself with the perfunctory
demolition of churches’.174 However, Maximian, Augustus of the West,
pursued a rather more vigorous policy in Africa, Spain and Italy until his
enforced abdication in May 305. In Africa Proconsularis the decree was not
promulgated until 5 June 303. In the city of Tibiuca the Christian clergy
were summoned, but bishop Felix was away, apparently with the divine
books, as his clergy attested; they were remanded in custody. On Felix’
return the following day he was summoned before the curator civitatis;175 as
usual, there was a formal identification.176 He refused to hand over whatever
books or parchments he had, and was given three days to reconsider, after
which he was remanded before the proconsul; his escort (deductor) to Carth-
age was a decurion. The next day, before the legate, he again refused to
surrender the books, and was sent to the inner part of the prison where he
stayed sixteen days until the arrival of the proconsul, Anullinus; Felix was
then, on his continued refusal, sentenced to be beheaded.177 It is interesting
that apparently no attempt was made to wrest the books from the middle-
aged bishop; as Pionius had said, the governor had lawful power to punish,
but not to force men to do things against their will.178
The later edicts

Not many months later, disorders in Syria and Armenia led to a second
edict which ordered the arrest of all Christian clergy.179 A third edict, of
September or November 303, probably linked with Diocletian’s celebration
172
Eusebius, HE 8.2.4; other sanctions for continuing to possess the sacred books are not
clear.
173
Ste Croix (1954), 84ff, citing the Council of Arles.
174
Ste Croix (1954), 106.
175
The curator, or logistes, of a city was supposed to act as a control on the city’s financial
management; at this period it was an imperial appointment, in the fourth century it was
to become an elected magistracy.
176
This very reasonable step is recorded quite frequently: e.g. for Polycarp, Pionius,
Cyprian, and Fructuosus.
177
ACM, Felicis 23–31. The note on where he was buried (s. 31) suggests that the burial
was carried out by fellow-Christians.
178
ACM, Pion. 16.6.
179
Eusebius HE 8.2.5; 8.6.8–9; mart. Pal. pr. 2. The presidents (proedroi) of all the churches
were to be imprisoned and then compelled to sacrifice.
122
of his Vicennalia, in view of the authorities’ struggle with the sheer numbers
of prisoners, offered amnesty to those who would sacrifice, penalties for
those who refused.180 Then, early in 304, during Diocletian’s illness and
clearly emanating from Galerius, came the fourth edict, ordering all the
Roman world, men, women and children, to sacrifice, on pain of death.181
Eusebius describes how registers of the inhabitants were compiled in 306,
throughout Caesarea at least, designed presumably to catch the urban poor,
from whom most Christians came, who would not be on the normal tax
registers. There were also reports of impersonation, the purchasing of
immunity, and even bogus torture sessions.182 ‘It is difficult to decide
whether these collusive arrangements testify more strongly to the humanity
or the venality of the officials concerned’183 – the officials themselves may
not have known. In the West, the complete absence of references to libelli
certifying sacrifice, in marked contrast to Decius’ persecution, suggests
strongly that Constantius I, now Augustus in succession to Maximian, made
no effort to enforce the edict, although he made no attempt to check the
persecution in the East.184 In his own sphere there continued to be toler-
ance, even after his death in 306, since his son Constantine, future emperor
and future Christian, ruled in Spain, Gaul and Britain, while Maxentius,
who controlled Africa and Italy until overthrown by Constantine in 312,
was also tolerant.
In the Eastern Empire things were different. Diocletian abdicated on 1
May 305.185 Galerius, who became Augustus in his place, with Maximin
Daia as his Caesar, embarked on a policy of cutting away the privileges
against torture; he allowed torture to be used not only on decurions, but
also on all below the rank of senator, officials and landowners described as
egregii or perfectissimi, and even in civil as well as criminal cases.186 To use
torture on free men, let alone honestiores, in civil cases was quite unheard of,
although it was used on slaves (and infamous persons such as gladiators); it
is hard to imagine anything more outrageous to the Roman sense of dignity.
The use of fetters (compedes, the kind that cleaved to the bones), and cruci-
fixion as a death penalty, were extended to these honestiores. Females of high
rank became liable to be sent to the gynaeceum, forced labour in the imperial
180
Eusebius, HE 8.6.10. In mart. Pal. 1.3–4, Eusebius describes the extraordinary lengths
to which the authorities went to be able to class a man as having sacrificed.
181
Eusebius, mart. Pal. 3.1.
182
Eusebius, mart. Pal. 4.6 and 8 and 14; cf. Council of Ancyra, c.1.
183
Ste Croix (1954), 100.
184
Ste Croix (1954), 87.
185
Lact. MP 19.
186
D 22.3.7, Paul; 22.5.21.2, Arcadius; PS 5.16.1 and 2. Senators were clarissimi; high
officials, who would normally be of senatorial rank, were spectabiles; the holders of the
very highest posts, Urban Prefect, Praetorian Prefect, Quaestor of the Sacred Palace,
Magister militum, were illustres.
123
weaving and dyeing establishments.187 Eusebius and other historians see

this as an attack on the whole social order of the Roman state. Furthermore,
it was at this stage of the persecution that, on grounds of humanity, the
emperors abandoned the imposition of the death penalty; instead they
passed sentences of deliberate mutilation, in particular the gouging out of
an eye and the maiming of a foot.188 This strange understanding of the
imperial virtue of clemency was part of Galerius’ character, perhaps even of
his policy, until his death; it was not restricted to his dealings with the
Christians.
Agape and her companions

Because the effect of the edicts was cumulative, it is not necessarily clear to
us, and may even not have been clear to the governor concerned, which
edict was the legal authority for the arrest of these or those Christians. In
late March 304 a group of young women from Thessalonika were arrested
by a stationarius, a beneficiarius called Cassander, for refusing to eat sacrificial
food;189 it seems possible that they were a group of consecrated women who
had fled to the hills to evade the first edict, for they still had considerable
numbers of sacred books and other writings with them, which they had
secretly held on to; these were now to be burned.190 They were brought
before Dulcitus, the governor, and the charge was read by the commentar-
iensis, in the presence of both Cassander and the defendants. They were
questioned on their refusal to sacrifice or eat the sacrificial meat; and per-
sisted in their rejection. One of them, a widow, was pregnant, and so she
was remanded to gaol,191 as were four others because of their youth, but
two of them, Agape and Chione, were condemned. The governor read from
a sheet that he sentenced them to the fire for ‘adhering to the worthless and
obsolete worship of the Christians which is hateful to all religious men’.192
The following day Irene, another of the group, was brought before Dulcitus,
and after the possession of sacred books had been dealt with, he described
her – obscurely – as guilty even before she ran away, so perhaps she was a
fugitive slave; hence her punishment was to be prolonged. She was to be
placed naked in the town’s brothel, under the supervision of public notaries
and of the town’s executioner, and to receive a ration of only one loaf a day;
187
Lact. MP 21.3–4; cf. 22.5 on lack of due process.
188
Usually the right eye and the left foot (Eusebius, HE 8.12.10). William the Conqueror
similarly was to replace the death penalty with mutilation (blinding and castration) in
eleventh-century England (Stubbs (1900), 84–85).
189
ACM, Agape et al. 3.1
190
ACM, Agape et al. 5–6.1.
191
As had been the similarly situated Felicitas (ACM, Perp. 15; D 1.5.18, Ulpian; 48.19.3,
Ulpian; PS 1.12.4).
192
ACM, Agape et al. 3–4.
124
he threatened the notaries and the executioner with severe penalties if she
were removed.193 There is sufficient evidence of this being seen as appro-
priate treatment for obstinately virginal Christians;194 moreover, women
condemned to the mines were not expected to work with pick and shovel
but to service the miners (in ministerium metallicorum).195 However, we are
told that Irene’s chastity was not attacked or even insulted, so she was
recalled; the governor asked for a sheet of papyrus and wrote on it that since
she had refused to sacrifice she was sentenced (like the other two) to be
burned alive.196
Some brief accounts: Irenaeus of Sirmium; Phileas of Thmuis;

Crispina
A bishop who suffered martyrdom in the spring of 304 was Irenaeus of
Sirmium, arrested and brought before the governor of Pannonia. He refused
to sacrifice and was put to the torture, and locked up in prison for many
days, but still refused.197 The governor then condemned him, around mid-
night, at first simply to be thrown into the river (in fluvium praecipitari), but
Irenaeus made an objection, that he had expected many tortures but then to
be put to death with the sword, so the governor altered his sentence to
beheading, and it was only the dead body which was thrown into the
river.198 Irenaeus was in the right, because there were legal restrictions on
the ways in which the death penalty could be imposed.
Another bishop who died for his faith was Phileas of Thmuis in Egypt.
On his fifth appearance, the only one recorded in the Acta, before the Prefect
of Egypt, Culcianus, perhaps early in 307,199 Phileas persisted in his refusal
to sacrifice. Some of the lawyers in attendance tried to check him;200 other
lawyers, presumably aiming to save Phileas, claimed that he had sacrificed
in secret, but he denied this.201 The governor offered to release him as a
favour to his brother, who was one of the lawyers, and remarked that
193
ACM, Agape et al. 5–6; cf. ACM, Pion. 7.5.
194
Tert. apol. 50.12: ‘Nam et proxime ad lenonem damnando Christianam potius quam ad
leonem’: you admit we see loss of chastity as worse than death. The threat was also made
in ACM, Pot. & Bas. 2; Pion. 7.6; Eusebius, HE 8.12.3–5; it was essentially intimida-
tion, not penalty. In March 2004, prisoners from Guantanamo Bay alleged that, as a
form of torture, the Americans paraded naked prostitutes before devout Muslims. At
Abu Ghraib prison in Iraq, soldiers have been charged with assault, including forcing
prisoners into sexual acts (The Week, 15 May 2004, etc.).
195
D 48.19.8.8, Ulpian.
196
ACM, Agape et al. 5.8–7.2.
197
ACM, Iren. 1–2.
198
ACM, Iren. 4–6.
199
ACM, Phileae A I. See Knipfing (1923a).
200
ACM, Phileae B 4.1.
201
ACM, Phileae B 5.5.
125
Phileas’ great wealth could be used for the benefit of the whole province,
an appeal to his benevolence.202 The lawyers tried for a postponement on
Phileas’ behalf, which the governor would willingly have granted, but
Phileas rejected it. Finally Phileas refused to see his wife and children,
despite being implored to by the lawyers, the office staff, the logistes, and
his kin.203 The governor finally condemned him to die by the sword; on his
way to execution his brother cried out that he requested an appeal, but
Phileas denied that he wished to make an appeal. Then he was beheaded,
together with a mysterious tribune called Philoromus who had intervened
on his behalf.204 Why Philoromus, a man of the upper ranks since he is
described as a tribune, should be so precipitately sentenced to death
is a mystery, particularly when the lawyers were interfering with the course
of justice without being rebuked. But their presence and their initiative are
interesting.
After 305 these edicts were not effectively applied in the Western half of
the Empire, although a year earlier, in an Africa still governed in December
304 by Anullinus (who had condemned Felix), Crispina refused to offer
incense, despite being told – hardly truthfully – that all Africa had sacri-
ficed; her obduracy led to the governor ordering her head to be shaved, but
she remained firm, and was sentenced to beheading.205 In the East, however,
Eusebius could say that for ten years there was no respite, although admit-
ting that the persecution eased somewhat in 311.206 It was then that
Galerius, on 30 April, in his final illness, issued an edict allowing Christians
to be free to live as such, provided they did nothing contrary to public
discipline; it said nothing, however, about the restoration of confiscated
church property.207 Yet in spite of this relaxation, Maximin Daia continued
fervently to repress Christians in Egypt, Syria and Asia Minor,208 until the
so-called edict of Milan, issued by the Emperors Constantine and Licinius in 313,
enforced toleration everywhere.209 There was occasional local harassment of
202
ACM, Phileae B 5.1 and 4.
203
ACM, Phileae B 6.2–4.
204
Epistula Phileae; ACM, Phileae 7.3–8.1; 9.3; cf. Eusebius, HE 8.9.6–8.
205
ACM, Crispinae. The order to shave her head has been seen as a later elaboration, but half
a century earlier Cyprian had written consolingly to those who had been condemned to
the mines and had, among other trials, had their heads half-shaven (Cyprian, Ep. 76.2.4);
on shaving the head linked to condemnation to opus publicum, see Apul. Met. 9.12;
Catullus, Carm. 59.5; Artemidorus, Oneirocrit. 1.21.
206
Eusebius, HE 8.15; 8.16.1.
207
Lact. MP 34; Eusebius, HE 8.17. It allowed assemblies of Christians, ‘ita ut ne quid
contra disciplinam agant’, and opened the prisons; in return Christian prayers for state
and emperors were required.
208
Lact. MP 36.3–7; Eusebius, HE 8.12.10. In this last period of persecution, alleged to be
at the request of the cities themselves (which suggests that Christians were still alien to
popular paganism), mutilation had replaced the death penalty.
209
Lact. MP 48; Eusebius, HE 10.5.
126
Christians in the next decade or so, and again under the pagan Emperor
Julian,210 but from Constantine onwards one can reasonably refer to the
Christian Empire, even though many pagans remained.
Popular pressures and the rule of law

Popular pressure, sometimes erupting as mob violence, was always an
important factor in the trials of the Christians. It is stated by Tacitus,
implied by Suetonius and Pliny, and may be assumed for the Scillitan mar-
tyrs; it is explicit with Polycarp, at Lyons, and with Montanus and Lucius;
Cyprian thought it safer for himself and his clergy to keep a low profile
even when no edict of persecution was in force.211 Emperors enforced gen-
eral persecution, governors enforced local persecution or repression, but both
were more often reacting rather than leading, despite the rhetoric of many
Acta, and the understanding of many Christians. While we find the accusa-
tions of incest and cannibalism recorded only in the rhetoric of the Chris-
tian apologists, it is clear that even if Christians were not common
criminals, they were indeed atheists in the view of the ordinary Roman.
Official religion may not have been much concerned with personal spiri-
tuality,212 but it was concerned with social goals. Penal policy in the third
century and at the start of the fourth was to repress Christianity as hostile to
the structure of the state and to the loyalty the provinces owed to the
Roman gods, however defined. The edicts of persecution focus, reasonably
enough, on destroying the leaders, as obstacles to widespread recantation;
there was no attempt at a total annihilation of all Christians, it was enough
to try to wear them out. Recantation was what was wanted by the autho-
rities, not the death of the confessor.213 And it is probable that there were
recantations on a considerable scale, not only in the persecution of
Decius.214 Their numbers cannot be known, still less how many recanta-
tions were sincere, or how many simply reflected people keeping their heads
down until times improved. This explains why Cyprian was so preoccupied
with the problem of how to treat those who had lapsed but were now
repentant; comparably, it was also to be a major concern of Augustine as
regards the re-baptized after the Donatist schism.
When public opinion changed, then the persecutions ceased. In many
provinces of the East, the people may have been sick of bloodshed, of the
horrors of the great persecution. Sympathy for Christians had occasionally
210
Lenski (2002), 214.
211
E.g. Cyprian, Ep. 5.2.1; 7.1.
212
Cf. Brown (1998) on the contrast between asceticism as practised by pagans and by
Christians.
213
As was explicitly stated in ACM, Polycarp 2.4.
214
For example, a recantation in Bithynia after two years of pressure, to the great joy of the
governor (Lact. div. inst. 5.11.15).
127
been evident before, as it had briefly been for Perpetua and Felicity,215 or for
Fructuosus. Admiration in many cases may have succeeded exasperation at
the courage and constancy of the martyrs. ‘Spontaneous popular hostility to
Christianity seems to have virtually ceased by the end of the third cen-
tury’.216 When the apologists, such as Tertullian or Eusebius, using the
language of the educated, had come to convince intellectuals that the claims
of Christianity were not actually contrary to reason,217 when the curial class
came to recognize its good citizenship, when practitioners of religion came
to believe in the superior magic of the Christian God, when more people
came to have good neighbours who were Christians, then the motives lead-
ing to persecution disappeared. As Tertullian had said, it was ignorance that
brought about hatred; once men ceased to be ignorant, they not only left off
hatred but became Christians.218 And it can be no coincidence that sym-
pathy with Christianity had spread into the imperial house; Constantine was
to be the first Christian emperor. The Christians had worn down the Roman
government, not the other way around.
What would the jurists have said? Although there are instances of both
repression and true persecution, in most of the martyrdoms the governors
try to persuade the Christians to recant, and only reluctantly put them to
death; the tortures are often explicitly for the purpose of moral suasion.
There is little blood-thirstiness to be observed in the official classes, in spite
of the capital penalties imposed; aggravated death penalties, such as fire and
the beasts, are mentioned, but many died by the sword (for practical as well
as legal reasons). Only in the account of the Lyons martyrs do we get clear
irregularities, of which the worst was accepting the testimony of slaves
against their owners.219 In one of Cyprian’s letters we hear of a sizeable
group of martyrs, one of whom died in the mines, one in prison, two as a
consequence of their torture, and thirteen who starved to death in prison,
presumably voluntarily.220 But other, lesser, penalties were imposed, and
sometimes none; confessors, such as Aurelius, were by definition released,
sooner or later.221 It is clearly wrong to think of death as the normal fate of
an arrested Christian, even when it was the penalty of the law. Had Pionius’
companions in prison been put to death, one can be sure it would have been
noted. Cyprian’s clergy, supporting him in his last moments, were appar-
ently untouched, despite the terms of Valerian’s second edict. The Donatus
to whom Lactantius addressed his de mortibus persecutorum had qualified as a
215
ACM, Perp. 19–20.
216
Ste Croix (1954), 103.
217
Cf. Pionius’ use of Greek philosophers (ACM, Pion. 17).
218
Tert. apol. 1.6.
219
Eusebius, HE 5.1.14; cf. D 48.18.1.1 and 5, Ulpian, citing Hadrian and Antoninus
Pius; 48.18.18.6–8, Paul.
220
Cyprian, Ep. 22.2.2.
221
Cyprian, Ep. 38.
128
confessor nine times, before three different governors;222 death was not as
common as the martyrologies make out.
Treatment of prisoners was brutal in the Roman world, but there is no
reason to think it was more so for Christians than for others. Torture had
become a normal instrument of judicial inquiry; the difference with the
Christians is that there was no problem about getting them to admit the
criminal facts, so that one could argue that torture was legally unnecessary,
but, of course, for them it had a different function, to persuade them to
recant. In executions, suffering and humiliation were what the public
expected, and enjoyed, but by no means all executions were public displays;
there is no evidence that Christians were intended to suffer more than other
criminals. Ulpian admitted that many people did die under torture,
although that was not the intention.223 The practice of Roman criminal law
is not a topic for the squeamish, but the rules of procedure were there, and
they mostly seem to have been followed. In general, indeed, the Roman
authorities acted with correctness, sometimes even with restraint, although
mob pressure might be an important factor.
222
Lact. MP 16.3–11; cf. Tert. apol. 12.5; 39.6.
223
He will have known; the jurists did not only write in their studies, most of them played
a part in public life, as ‘the authorities’.
129
Chapter 6
SOME TRIALS FOR TREASON AND
M A G I C I N T H E F O U RT H C E N T U RY
In this chapter, we seem to be living in a different legal world. There was

continuity, certainly, from the classical period of law, but also marked dif-
ferences from the Principate. The focus in these trials is more political than
in Piso’s case, partly because our literary source is contemporary, and indeed
involved, with the events described. But we have also formal legislation
from the period, and it is noteworthy that both sources often share a hys-
terical, or rhetorical, tone. This is how Romans of this period perceived
treason and magic, and criminal procedure could be bent to conform. First,
however, a little background history seems advisable, particularly as the
names and relationships of the emperors can be confusing.
The historical background

In the fourth century Christianity became more and more favoured by the
emperors, and the number of Christians grew very considerably, particularly
in the cities and towns, but paganism was still strong. ‘We should therefore
see the fourth century, after the death of Constantine, as a time of ferment
and competition between pagans and Christians, when despite imperial
support for Christianity, the final outcome was still by no means certain.’1
The conflict over removing or keeping the pagan Altar of Victory in the
Senate house is an obvious example.2 Even at the end of the century senior
officials were being threatened with heavy fines for practising pagan wor-
ship.3 Another factor was that the patronage of the emperors meant that the
Church became involved in politics; bishops quarrelled and emperors inter-
vened. Constantine’s search for doctrinal unity among Christians was
enthusiastically followed by his sons.4 Imperial officials, on a mission in
1
Averil Cameron (1993b), 13; cf. Barnes (1995); Salzman (2002).
2
Symmachus, rel. 3, in Barrow (1973); Sheridan (1966).
3
CTh 16.10.10 and 11, February and June 391. By this time Gratian had repudiated the
office of pontifex maximus, and his stance was followed by all later emperors; see Alan
Cameron (1968).
4
Drake (2000).
130
TRIALS FOR TREASON AND MAGIC
346–47 to distribute funds to the Church in Africa, were seen to support

the Catholics against the Donatists; violence followed, and the Donatists
saw the days of persecution return. This was a legacy that St Augustine,
born in 354, had in due time to cope with as bishop of Hippo.
Constantine, who in AD 313 had issued what is known as the edict of
Milan, legalizing the practice of Christianity, died in 337. His three sons,
Constantine II, Constans and Constantius II, who succeeded him, rapidly
fell to fighting; Constantine II soon died while in conflict with Constans.
Thereafter Constans, in the West, and Constantius, in the East, ruled jointly
from 340 to 350. In 350 Constans was overthrown, a fate which may have
been linked with the cost of his wars to hold back the Germanic peoples
beyond the Gallic frontier; an army officer called Magnentius declared
himself his successor. Constantius was sole Augustus, in West as well as
East, from 350 until 361, but he was initially preoccupied with the East,
where he was trying to thwart Persian designs on Armenia and Mesopota-
mia. When that matter was temporarily settled, he took time to summon a
church council at Sirmium in 351 – he was inclined to the Arian heresy –
before coming to the West to deal with the ‘tyrant’ Magnentius, which he
finally did in 353. Constantius seems to have held a purge of the Roman
Senate and various senior officials, but from a distance; he did not visit the
City until 357. He also called a council at Arles in 355, which brought
most of the bishops – but not Liberius of Rome – into line against Atha-
nasius, the frequently deposed bishop of Alexandria.5
Constantius had then to deal with his cousin Gallus, who had been his
Caesar (or junior colleague) in the East since 351, but who now came to
manifest an independence that could only be viewed as treasonable. Con-
stantius’ new Caesar in the West, sent in 355 to defend the Gallic frontier,
was Gallus’ half-brother, Julian; he was successful in crushing the Ala-
manni. In 357 Constantius paid a visit to Rome. During that visit he
removed the Altar of Victory from the Senate house, but otherwise took no
steps against official paganism.6 He was called back to the East by further
Persian aggression, but Julian refused to send reinforcements from Gaul to
Mesopotamia, and was proclaimed Augustus by his soldiers. When Con-
stantius did feel able to leave the eastern frontier to face Julian, he died of a
fever en route; Julian was now the sole heir of the house of Constantine, and
5
One of the charges against Athanasius, apart from doctrine, was that he was highly skilled
in the interpretation of prophetic lots, and the omens indicated by birds, and that he had
foretold future events. Liberius, quite rightly, held that Athanasius should be offered the
chance to refute such charges; for this he was deposed (Amm. Marc. [hereafter cited in this
chapter as AM] 15.7.6–10). Athanasius won in the end; his definition of orthodox Chris-
tianity overcame Arianism, after a century or so of debate.
6
‘The earlier emperors venerated our ancestral religious rites; the later did not abolish
them’, as the pagan Prefect of the City later wrote, asking for the altar’s restoration
(Symm. Rel. 3.3). Magic and astrology were different matters, see infra.
131
the last. Two years later, in June 363, he was killed in the Persian wars,
while retreating from Ctesiphon. He is principally remembered because,
although brought up as a pious Christian, he apostatized, and tried to
restore the traditional religion of Rome. Jovian, the next emperor, who
made peace with the Persians at the price of surrendering the Roman
dependencies east of the Tigris, was a Christian, and declared Christianity
the official religion of the Empire. But before he could reach Constantinople
to be installed as consul, he died in mysterious circumstances.7
After the very brief reign of Jovian, a new, Pannonian, dynasty appeared
(which did, however, have marriage ties to the house of Constantine) when
Valentinian I (364–75), an orthodox Nicene Christian, became emperor,
together with his brother Valens (364–78), who was Arian. Valentinian
ruled in the West, Valens in the East. Valens was killed in the disastrous
defeat of the Romans by the Goths at the battle of Adrianople in 378.
Valentinian’s son Gratian became joint-emperor with his father as a boy
(367–83), but his brother, Valentinian II (375–92), was not raised to
imperial rank until the death of his father. Theodosius I (379–95) succeeded
Valens in the East; he too granted his sons imperial power, Arcadius in 383
and Honorius in 393 for the West. On his death they ruled jointly until
408 when Arcadius died and was succeeded by his young son, Theodosius II
(408–50), the ruler responsible for the Theodosian Code.
Fourth-century issues
The fourth century has been described as an age of contradictions. The tra-
dition of the classical period was strong; in particular the traditional edu-
cation in Latin rhetoric marked out the upper ranks, even, or especially, in
the eastern half of the Empire. The identification with Rome was important.
‘The normal description of the peoples of the Empire as Romani in the later
third- and fourth-century writers’8 is in contrast to the barbarians at the
gates, or at least the frontiers.
[T]he struggle to save the Empire from the barbarians is set in the
first place by every source, however meagre, and must take pre-
cedence even over the very real internal discord and oppression,
from which the provincials sought relief not in nationalistic risings
but in the imperial power itself, so that the crisis strengthened
rather than weakened the hold of the Roman name on the Roman
world.9
7
This outline is based on Hunt (1998).
8
Sherwin-White (1973), 445.
9
Sherwin-White (1973), 451f; also 461ff, on this aspect of St Augustine’s De civitate Dei.
132
Yet the imperial response to the external threat was accompanied by novel-
ties, such as attempts by emperors to legislate over men’s beliefs and insig-
nificant actions, and to control their subjects’ private lives.10
The image of the law was new. The third-century governors who had
executed the Christian martyrs (see chapter 5) were mostly polite, if inex-
orable. The hectoring tone of imperial legislation in the fourth century
seems to have led to a similar tone in the practice of the courts, as we shall
see. While proximity to emperors had always had its risks,11 the temper of a
despot could now affect men who would normally have thought themselves
outside his orbit.12 Yet, in spite of the dangers of the emperors’ attempted
policy of despotic micro-management, their absence (remote in their pomp
or away at the frontier) from the judicial scene opened the way for judges
(normally the provincial governors) and advocates to take advantage of their
positions.13 The emperor was guardian of his people, as well as a menace
when he acted hastily; many laws were therefore aimed at the repression of
abuses by provincial governors, as well as other officials.14 Hence one of the
reasons for the importance of senatorial and curial embassies to the emperor
was to tell him what was happening on the ground.15 This theme of corrupt
officialdom is recurrent in the legislation of the period.
Corruption was evidently becoming endemic, even before the reign of
Constantine. The reasons are not entirely clear, but are presumably linked
with the instability of imperial rule in the years between Severus Alexander
10
E.g. disputes involving a boundary strip more than 5 feet wide must be heard by the
provincial governor (CTh 2.26.3, AD 331); ‘Nobody whatsoever may employ any sort of
weapons without our knowledge and permission’ (CTh 15.15.1, AD 364); sacrilege could
be committed inadvertently, through ignorance or negligence (CTh 16.2.25, AD 380).
11
For example, when Tiberius’ litter got caught up in some brambles, he had the man who
was supposed to be clearing his path, a senior centurion, thrown to the ground and flog-
ged half to death (Suet. Tib. 60); Domitian put to death a pupil of Paris, the actor, for
being too like his master, and threw to the dogs in the arena a man who spoke slightingly
of a Thracian gladiator (Dom. 10). Comparable is Valentinian’s having a hound boy, who
released his hound too soon, beaten to death (AM 29.3.3).
12
The story is well-known (AM 28.6.17–23) of the unfortunate decurions of Lepcis in Tri-
poli, on an official embassy to the Emperor Valentinian, who were making true com-
plaints about the desert barbarians; these were denied by the official investigator who
should have supported them, while the provincial governor who confirmed their asser-
tions was put to death; when their tongues were ordered to be cut out, the decurions fled
into hiding, only emerging some six years later.
13
AM 30.4.2. In 30.4.3–22 Ammianus gives his own, unfavourable, view of lawyers.
14
Diocletian’s reforms of the imperial administration had included splitting the old pro-
vinces into several smaller ones; vicars were appointed to administer groups of provinces,
known as dioceses. For example, Britain, once one province, became five, while Gaul
south of the Loire became a diocese, containing seven to eleven provinces. Over the vicars
there were four Praetorian Prefects for the whole empire.
15
Not that these were new; Ameria sent an embassy to Sulla (see ch. 2). See also the role of
defensores civitatis and of the episcopalia audientia: Frakes (1993–94); Manino (1984); Per-
gami (1995); Jaeger (1960).
133
and Diocletian, with the economic problems of this period, and with a loss
of moral certainty, of social cohesion.16 Perhaps there was also a change of
perspective when those who were powerful within the administration – in
contrast to the potentes when on their country estates – were emphatically to
be seen as servants of the emperor. To illustrate the point with a few
examples:17 in 319 Constantine laid down that the documentation of any
case appealed was to be sent on within twenty days, failing which the office
staff were liable within the next twenty days for the whole value of the case,
which they were assumed to have suppressed; this value was to be assessed
by a rationalis (a fiscal official), under threat of capital punishment if he
failed to do this honestly.18 An extraordinarily vehement enactment of 325,
addressed to all provincials, commanded them to approach the emperor
with their complaints if any official had done them wrong.19 A few years
later another imperial law was addressed to the provincials:
The rapacious hands of the apparitors [court officials] shall imme-

diately cease; they shall cease, I say, for if after due warning they do
not cease, they shall be cut off by the sword. . . . the ears of the
judge shall be open equally to the poorest as well as the rich.20
Constantine almost certainly meant these threats metaphorically, but later

they were taken literally – as is shown by the interpretatio (the Visigothic
commentary) to the Theodosian Code. Towards the end of the century
another enactment addressed to the provincials gave them the right to resist
marauding soldiers, ‘For it is better for a man to fight back at the proper
time than to be avenged after his death. . . . Let no man spare a soldier who
should be resisted with a weapon as a brigand.’21 A year later judges guilty
of peculation were no longer just to be fined, but to be tortured and put to
death.22 Senior and junior officials alike were threatened with ever severer
penalties. On this last point, some penalties more than trebled within fifty
years: in AD 343 a governor failing to accept a properly made appeal was
liable to a fine of 10lb of gold and his office staff a fine of 15lb; in 364 the
sums were 20lb and 30lb, and in 393, 30lb and 50lb.23
16
MacMullen (1988). The appearance of eunuchs in politics may perhaps have played a part:
Hopkins (1963).
17
See Liebs (1978); Daube (1979); Noetlichs (1981); Rosen (1990); Wacke (1978) and
(1980).
18
CTh 11.30.8, AD 319.
19
CTh 9.1.4, AD 325; very similar is 9.27.6, AD 386.
20
CTh 1.16.7, AD 331; cf. 10.10.2, AD 319, on informers: their delations were to be stran-
gled in their throats and the tongue of envy cut off. This too was probably intended
metaphorically.
21
CTh 9.14.2, AD 391.
22
CTh 9.28.1, AD 392; cf. AM 27.7.5.
23
CTh 11.30.22, AD 343; 11.30.33, AD 364; 11.30.51, AD 393.
134
Nobody can think that power, wealth and influence did not carry weight
in the period of classical law, but in the fourth century the government
explicitly recognized that the rule of law itself could not be taken for
granted.24 But the theoretical absolutism of the imperial power was not
linked to any practical means of controlling what went on in the provinces.
The sons and other relatives of Constantine who ruled for most of the fourth
century often appear weak, vacillating, susceptible to flattery, cruel, and also
superstitious, at least according to Ammianus Marcellinus who lived under
them, and who was himself a believer in portents and predictions.25
There was seemingly a general growth in belief in the supernatural. The
boundary between religion and magic was far from clear. Magic could be practised
by both pagans and Christians; it was ‘confessionally neutral’.26 It also had
close links with science, and philosophy, particularly the Neoplatonism of
Plotinus and his followers. Prayers might have the same end as charms and
incantations, but the latter can (usually) be distinguished by their attempt
not only to manipulate, but also to compel the divinity. Further, the practice
of magic was private, in contrast to public worship, and therefore suspect in
the eyes of government. It is hard to be sure what difference Christianity
made, but I suspect it led its followers to accept the solid reality of unseen powers
in a systematic way, unlike the worshippers of Jupiter, or even of Isis and
Osiris. The acceptance of Christianity in some sense validated the reality of magic
and miracles, and of demons and angels. MacMullen, looking for more objective
changes, came to the conclusion that the only real change brought about by
Christianity was in the sexual sphere; erotic poetry ceased to be acceptable, and
harsh criminal penalties were imposed on any deviant (as contemporaries
understood it) sexual behaviour.27 Admiration for celibacy was certainly a
novelty; celibacy had no traditional place in either Roman or Jewish culture.28
The sources
Our main source for the trials for treason and magic under Constantius and
Valens is a contemporary one. Ammianus Marcellinus was born around 330,
in Syria, perhaps in Antioch, of good family, probably more elevated than
the curial class. He joined the protectores domestici, officers of the imperial
bodyguard, probably by direct commission,29 and was soon attached to the staff
of Ursicinus, the eastern magister equitum, who was then under the immediate
24
The emperors acknowledged that they themselves broke the laws against giving rewards
to informers (CTh 10.10.15, November 380).
25
E.g. AM 19.12.19–20; 21.1.7–14. See also Camus (1967), 200–22.
26
Fowden (1998), 549; see also Flint (1999), Gordon (1999).
27
MacMullen (1986b).
28
Constantine repealed the anti-celibacy provisions of Augustus’ marriage laws (CTh 8.16.1, 320).
29
Matthews (1989), 77–79, citing CTh 6.24.2–3 for the operation of the system; see also
Barnes (1998), 59f.
135
command of Gallus Caesar; it was in this capacity that Ammianus came to

witness the treason trials at Antioch in 354.30 After a period of semi-disgrace
in Milan following the fall of Gallus, Ursicinus, still accompanied by Ammianus,
went to Gaul to deal with Silvanus, who had succeeded briefly to Magnentius.31
When Julian came to Gaul as Caesar, Ammianus must have met him, and
Julian became his hero. Ammianus served in some capacity under Julian in
his Persian campaigns; he returned to Antioch after Julian’s defeat and death.
It is likely that Ammianus then remained some time in Antioch, because he
seems to have been an eye-witness of the trials of AD 371 held there. He apparently
went to live in Rome after the disastrous defeat of Adrianople in 378. Rather
oddly for such an admirer of the pagan Julian – but then, Ammianus was
foreign and not of senatorial rank – he does not seem to have been a friend
of Symmachus, or generally of members of the pagan party in the Senate.32
It was in Rome that he wrote his Res Gestae, dealing in the surviving part (from
Book XIV on) with events of which he had frequently been an eye-witness,
or about which he was at least able to consult other such witnesses. He
declared himself to be a man who aimed to tell the truth,33 but it seems
unlikely that he was as impartial in his views of the domineeringly Chris-
tian emperors as he alleges; he certainly felt strongly in support of tradi-
tional Rome, its values and its gods. He has been described as interested in
political and legal, not religious, matters, as a historian writing on cruelty,
illegality and corruption, as a Roman describing half-barbarians.34 However,
his avoidance, indeed marginalization, of religious issues may well be the
caution of an apostate Christian.35 He also, naturally, wrote in the rhetorical
style appropriate for his day, and one must make allowances for this.36
The other source for this chapter is the Theodosian Code, a collection of
imperial enactments, none dating from before Constantine; it was published
in 438. The compilers of the Code were ordered to collect all laws of general
application, regardless of whether they were still in force,37 and to arrange
30
As Hunt (1998), 25, has pointed out, these trials were actually of Constantius’ own
agents, investigating the loyalty of Gallus Caesar. See also AM 14.1. On agentes in rebus,
curiosi, and other policing agents of the imperial administration, see, for example, Sinni-
gen (1959), Blum (1969), Purpura (1973).
31
AM 15.5–6.
32
Alan Cameron (1964); Blockley (1975), 11–12.
33
E.g. AM 15.1.1; 26.1.1. It is true that he could even be critical of Julian, his hero, e.g.
22.10.7; 22.12.6–8.
34
Funke (1967).
35
Barnes (1998), 81–83.
36
For example, he describes somebody as so disembowelled that he had no parts left to
torture, and then that he was led off to execution, railing at the wickedness of the times!
(AM 14.9.6). On Ammianus’ use of language, see Seager (1986).
37
This explains the survival of, for example, CTh 9.38.11, AD 410, pardoning civil servants
who had served Attalus or Stilicho. It also explains why there are inconsistencies, as we
shall see, between the rulings of different emperors. See further in ch. 7.
136
them in chronological order under topics, known as ‘titles’. Thus some laws
were split up and parts of them are found in several contexts in different
titles. The laws in this Code took for granted the juristic background later
collected in the Digest, from which we have quoted much in earlier chap-
ters, which is one reason why they are so much more concerned with
administrative details and questions of enforcement. The contrast is the
sharper because, while the jurists in most cases wrote simply and directly,
with few flourishes, these laws were nearly all drafted in a high rhetorical
style, to enhance the imperial dignity.38 This can lead to extraordinary
statements, at least to our eyes. A statute laid down that a deadly plague
was to carry off those who practised necromancy;39 this can only mean that
the governor was to punish such persons severely, but the vagueness must
have led to serious judicial anxiety as to whether this had been done satis-
factorily. All the texts in the Theodosian Code must be described as ‘law’,
but they need much more decoding than the Digest texts, and often more
than those appearing in Justinian’s Code.40
Constantius and the trials of 359

After the death of Constans in 350, Constantius had had to cope with
usurpers, several of them; his fears of treason were not necessarily irrational.
The followers of the ‘tyrant’ Magnentius were undoubtedly guilty of trea-
son.41 Furthermore, Magnentius had been a pagan, and one who permitted
nocturnal sacrifices.42 Pagan sacrifices and the worship of images were
declared capital offences by Constantius shortly before his visit to Rome.43
Even in the pagan Empire, nocturnal sacrifices had been problematic:
Those who celebrate or arrange the celebration of impious or nocturnal

sacrifices that are designed to enchant, curse or bind someone, are
either crucified or sent to the beasts. Whoever performs a human sacrifice
or makes propitiatory sacrifices with his blood, or pollutes a shrine
or temple, is to be sent to the beasts or, if of the honestiores, be
decapitated. It is agreed that those complicit in magic arts are to be
punished with the aggravated death penalty, that is, sent to the beasts
or crucified. But magicians (magi) themselves are to be burned alive.44
38
See Honoré (1986); Harries (1988); Robinson (2000); Matthews (2000).
39
CTh 9.16.5, 357.
40
See Matthews (2000); see also ch. 7.
41
AM 14.5; so were those of Silvanus, Magnentius’ perhaps reluctant successor.
42
CTh 16.10.5, 353.
43
CTh 16.10.6, 356.
44
PS 5.23.15–17. The Sententiae of Paul may have been revised under Diocletian; their
confirmation along with the other works of Paul by Constantine (CTh 1.4.2, 327) argues
strongly for their belonging essentially to the late classical period.
137
There could, of course, be proper nocturnal sacrifices (sollemnibus redditis

sacrificiis per noctem), such as those necessary when a corpse must be trans-
ferred from a permanent burial-site and interred elsewhere because of river
floods or other natural threat, but they were rare.45
Constantius was also fearful of magic and divination.
For if anyone consulted a skilled soothsayer about the squeaking of

a shrew-mouse, or a meeting with a weasel, or some similar portent,
or used some old-wives’ charm to relieve pain, he was indicted, he knew
not by whom, dragged into court, and suffered death as the penalty.46
Yet Constantine, Constantius’ father, had laid down that the courts were to
take care that guilt was proved.
If any person is about to pronounce sentence, he shall maintain such

moderation that he shall not pronounce a capital sentence or a severe
sentence against any person until such a person has been convicted
of the crime of adultery, homicide or magic, either by his own
confession or, at least, by the testimony of all witnesses who have
been subjected to torture or to questioning, when such testimony is
concordant and in agreement, pointing to the same end of the
matter. Thus the accused shall be so revealed as to the crime charged that
even he himself can scarcely deny the crime which he committed.47
The witch-hunt conducted in the Orient by one Paul, an official known as

the Diabolical, or ‘the chain’, in AD 359 illustrates the new imperial atti-
tudes. Ammianus tells us the story. There was a town in Egypt, called
Abydum, where there was a well-known oracle. Some came to consult the
god there in person, others sent in written petitions or requests, which were
often filed. Some of these documents were, maliciously, sent to the emperor.
Constantius was both suspicious and petty (suspicax et minutus) – also cruel
and superstitious – and he sent Paul to the East with discretionary powers
to investigate and punish; a similar commission was given to Modestus,
then comes per Orientem.48 Both noble and obscure persons were under suspi-
cion; some were put in chains, others merely wasted away in prison.49
45
PS 1.21.1.
46
AM 16.8.2.
47
CTh 9.40.1, 314; compare Ammianus’ comment: ‘Nobody easily recalls the acquittal of
anyone in the time of Constantius when an accusation against him had even been whis-
pered’ (AM, 14.5.9).
48
AM 19.12.1–6. CTh 9.16.4–6 probably fit into this particular context, Barb (1963), 109.
Contrast Trajan’s rejection of anonymous denunciations, Pliny, Ep. 10.97.
49
AM 19.12.7–8. Note the contrast between fetters and simple confinement, which might
mean merely house arrest.
138
Ammianus gives an impression of dozens of accused, at least, but we are

told only four names. Simplicius, son of a former Praetorian Prefect and
consul, was indicted because he was alleged to have asked the oracle about
gaining imperial power; a letter from the emperor ordered his torture, but
somehow he was merely exiled to a designated place, and with a whole
skin.50 Parnasius, ex-prefect of Egypt, was also tried on a capital charge,
unspecified, and also sent into exile. Andronicus, a scholar and poet, was
acquitted; Demetrius, a philosopher, was released after torture. Ammianus
tells us that others died under torture, while others still were condemned
and their property confiscated.51 Trivial grounds, he says, sufficed. If anyone
wore an amulet against the quartan ague or other malady, or had passed by a
grave of an evening, ill-wishers held this as a sign that he was a dealer in
poisons, or someone gathering the horrors of the tombs and the empty
vanities of the ghosts wandering there, in order to conduct sorcery – as
Horace’s witch Canidia snuffled round burial places52 – and he was con-
demned to death.53 It is hard to judge how serious the affair was, or how
remote from due process.
Ammianus admits that the safety of the prince was a reasonable concern,
necessary for social stability. It was for this reason, he continues, that the
‘Cornelian laws’, by which he presumably meant the lex Iulia maiestatis,
exempted nobody, of whatever status, from examination under torture in
questions of treason.54 This was, of course, not an accurate description of
either the lex Cornelia or the lex Iulia, but it was valid for the law of his
time.55 Torture of free persons had already become common before the end
of the third century, as we saw in the previous chapter; in the fourth century
it was more and more readily extended to include even the higher ranks.
The position of decurions, the ‘gentry’ of the Roman world, provides a
measure for the growth of savagery. Decurions, as honestiores, had been an
exempt class, except when there were charges of treason or magic. Even
when decurions were debtors to the fisc, whether on their own account or as
being responsible for the collection of taxes, they could be pursued in non-
violent ways: ‘severity has many means which it may take to enforce the
discipline of public office, so that it may abstain from such bloody ones’.
But this law went on to state that, while all decurions were exempt from
torture with fidiculae (the rack), those who were not of the decemprimi56 could
be afflicted by ‘beatings with leaden scourges, which we do not approve
50
He seems to have fared better than Libo, mentioned in ch. 3.
51
AM 19.12.9–13.
52
Horace, Ep. 5.17; Sat. 1.8.
53
AM 19.12.14.
54
AM 19.12.17.
55
CTh 9.5.1, Constantine; 9.35.1, 369.
56
A Republican term for the ten senior members of a town council, apparently revived in
the Later Empire; cf. CTh 9.35.6, 399.
139
when inflicted upon the bodies of freeborn persons [sic]’, but ‘moderation in
the use of this punishment shall be exercised by the judge’.57 That Valen-
tinian II, or his officials, could draft a law in such terms is breathtaking.
The prohibitions on magic under Constantine and his

sons
Constantine and his sons are remarkable, although not so extraordinary in
their time, for their fear of magic and astrology. Constantine had forbidden
soothsayers (haruspices) to visit the homes of other men, even old friends, on
pain of being burned alive, while the friend was to be exiled with confisca-
tion of property. Accusation of such a crime was not to be counted as dela-
tion, by now so much restricted that it was normally itself a crime. Public
performance of pagan rites was not, however, penalized, so it was the
secrecy, the happenings behind closed doors, with which the emperor was
concerned.58 He seems to have recognized the need to keep the peasants
reassured:
The science of those men who are equipped with magic arts and
who are revealed to have worked against the safety of men, or to
have turned virtuous minds to lust, shall be punished and deserv-
edly avenged by the most severe laws. But remedies sought for
human bodies shall not be involved in criminal accusation, nor the
assistance that is innocently employed in rural districts in order
that rains may not be feared for the ripe grape harvests, or that the
harvests may not be shattered by the stones of ruinous hail, since by
such devices no person’s safety or reputation is injured, but by their
action they bring it about that divine gifts and the labours of men
are not destroyed.59
Astrologers, however, not only understood the stars but could predict the
future from them; when this involved the future of the imperial house, the
threat of treason could not be far away.60 Astrologers, soothsayers, sorcerers
57
CTh 9.35.2, 376. The cruellest illogicality, however, is probably in Constantine’s decree
that coloni who meditate flight must be put in chains and reduced to a servile condition,
‘so that they may be compelled to perform the duties which befit free men’ (CTh 5.17.1,
332).
58
CTh 9.16.1, 319/320; 9.16.2, 319, added priests to the prohibited persons: ‘But we do
not prohibit the ceremonies of a bygone perversion to be conducted openly’.
59
CTh 9.16.3, 317/19. Cf. 16.10.1, 321, where soothsayers were to be consulted if light-
ning struck the imperial palace or other public building, but there were to be no private
sacrifices.
60
Coll. 15.2.1–6, Ulpian 7 de off. proconsulis, but, for imperial interest in astrology, see also
Tac. Ann. 6.20–1; SHA, Hadrian 16.7.
140
and magicians had been regularly repressed throughout the Principate;61 in

the fourth century they came to be refused the right of appeal, along with
murderers and adulterers.62 Comparably, the grounds on which a woman
could divorce her husband without penalty – a change from the classical law
of free divorce brought about in the Christian Empire – were if he were
proven to be a homicide, a sorcerer (medicamentarius) or a destroyer of tombs,
just as he could only divorce her without penalty if she were proven an
adulteress, a sorceress (medicamentaria) or a procuress.63
Constantius’ language was stronger than his father’s:
Let none consult a soothsayer (haruspex) or astrologer (mathematicus),

or diviner (hariolus). Let the wicked doctrines of augurs and seers
(augurum et vatum) fall silent. Let not Chaldeans, magicians (magi)
and others, whom the mob call malefici because of the depravity of
their offences, undertake anything of this sort. Let curiosity for the
future be perpetually silenced for all men, for the sword will carry
them off otherwise.64
And in the same year – AD 357 – he issued another edict to the people,
which has already been mentioned:
Many have dared to disturb the elements with magic arts and have
not hesitated to shake the lives of the innocent; they dare to agitate
with summoning hands the spirits of the dead so that someone may
destroy his enemies through evil arts. May a deadly plague carry off
such men.65
The following year the emperor was making it clear that although the
bodies of the upper classes were normally exempt from torture, this did not
apply to practitioners of magic arts; even those among the imperial retinue
would not escape the bloody torments of the torture horse or the iron
claws.66 Those condemned for high treason or magic suffered total con-
fiscation of property, leaving nothing even to the close family; this had been
lifted for other capital crimes in 356 but was reintroduced in 358.67
61
As discussed briefly at the start of ch. 5.
62
CTh 11.36.1, 314/315; 11.36.7, 344/348.
63
CTh 3.16.1, 331; repeated in Ed. Theo. 54.
64
CTh 9.16.4, AD 357; demons are introduced in the interpretation: ‘Quicumque pro cur-
iositate futurorum vel invocatorem daemonum vel divinos quos hariolos appellant vel
haruspicem qui auguria colligit consuluerit, capite punietur.’
65
CTh 9.16.5, 357.
66
CTh 9.16.6, 358; the ruling covered magi, malefici, haruspices, harioli, augures, mathematici,
the interpreters of dreams, and all similar persons.
67
CTh 9.42.2 and 4, Constantius; total confiscation was limited to conviction for treason in
9.42.6, 364.
141
(Interestingly, Constantius saw the violation of tombs primarily as a way of

dishonestly acquiring building materials, although the practice did both
despoil the dead and contaminate the living.68 It was Julian who stressed
the sanctity of tombs, and the pollution involved in holding funerals during
the daytime.69 Later legislation in this area was primarily directed against those,
including the clergy, hunting for or trafficking in relics of the martyrs.70)
Astrology as science
Under Valentinian and Valens paganism was partially tolerated.
What bothered the emperors was the specter of the occult. Indeed,
the fear of magic more broadly, and of its near relative astrology,
haunted both emperors in the extreme. . . . It was sorcery and
astrology then, the mysterious and private side of ancient religion,
that troubled the emperors.71
Thus we find that anyone who was subsequently detected at night per-
forming nefarious prayers, magic doings, or dire sacrifices was to be visited
with suitable – and clearly horrible – punishment.72 Then there was a more
formal prohibition:
The teaching of astrology shall cease (cesset mathematicorum tractatus).

For if any person, either in public or in private, during the day or
during the night, should be apprehended while engaged in this
forbidden charlatanry, each of the two persons involved shall be
stricken with a capital sentence. For the crime of learning forbidden
doctrines is not unlike that of teaching them.73
Yet astrology was viewed as a science, an academic discipline, and there

were textbooks, and academic debates, so this law could be seen, especially
by the pagan party, as anti-intellectual, like – and linked with – the perse-
cution of philosophers.74
68
CTh 9.17.4, 357/356; cf. 9.17.1–3.
69
CTh 9.17.5, 363.
70
CTh 9.17.6 and 7, 381 and 386.
71
Lenski (2002), 218–19.
72
CTh 9.16.7, 364; ‘Ne quis deinceps nocturnis temporibus aut nefarias preces aut magicos
apparatus aut sacrificia funesta celebrare conetur.’ The interpretation to CTh saw demons
as the objects of the sacrifices or incantations.
73
CTh 9.16.8, 370/373. Compare Diocletian: ‘Artem geometriae discere atque exercere
publice intersit, ars autem mathematica damnabilis interdicta est’ (CJ 9.18.2, AD 294).
74
We have one complete work, a textbook, the Mathesis of Firmicus Maternus, of which
there is an English translation: Bram (1975). See also Cramer (1954); Gage (1968);
LeBoeffle (1989); Potter (1994).
142
Astrologers, or at least the more reputable among them, were often gen-
uine astronomers; it was their ability to calculate the movements of the
planets and the constellations that gave them their other title of
mathematici – or Chaldaei, since Chaldaea seems to be where astronomy was
first practised. Firmicus Maternus (who flourished in the middle third of the
fourth century) had started off as a lawyer, but: ‘Those who like myself
practise in the courts, particularly for the defence, acquire ill-will from our
constantly opposing those who delight in mischief, or who exploit strangers
from motives of greed, or who terrorize others with the threat of the law.’75
So he abandoned the law for astrology, which he took very seriously as a
profession. He warned the young astrologer never to give responses to
anyone asking about the condition of the state or the life of the emperor. It
was not right to speak about the condition of the republic, and it was
wicked to speak about the destiny of the emperor. Besides, he added care-
fully, it was pointless, because the emperor was the one man not subject to
the stars in their courses, as he was a god. If asked such a question, the
astrologer should refuse an answer and warn the questioner to change his
mind. But the astrologer should not report such a question to the autho-
rities, because it was not fitting for one who was in some sense a priest to
bring about a death.76
Firmicus Maternus’ instructions to an aspiring astrologer used the same
general self-admiring approach as those of Vitruvius to architects or Quin-
tilian to orators. An astrologer should be a model of excellence. ‘He who
daily speaks about the gods or with the gods must shape his mind to
approach the likeness of divinity.’ Study hard, be easy of access. ‘Be modest,
upright, sober, eat little, be content with few goods.’ Speak out publicly
with a clear voice.77 Have a wife, a home and many friends; in other words,
do not live life as a vagabond. Keep away from quarrels, never give false
witness, demand no interest. Never attend nocturnal sacrifices, nor even the
spectacles. Be chaste. Learn your books, but use your intelligence to go
further.78
But it is not cheerful stuff, and not only because of Firmicus’ own deter-
minism; there are more bad than good things in the fates. For example,
from his description of those born under (that is, natives of) Mars:
But I myself know, as I have often discovered in computing charts,

that many who have Mars on the ascendant have been sent into
exile, but are now good and diligent government officials; when the
waxing Moon is in opposition and Mars is in the fifth house by day,
75
FM, Math. 4.pr-1.
76
FM, Math. 5.30.4–7.
77
FM, Math. 5.30.1–3.
78
FM, Math. 5.30.8–15; there is similar advice in 2.30.
143
the natives will suffer condemnation and prison; if the Sun is in

opposition to Mars, in the seventh house, the native will be burned
alive.79
Jupiter, in aspect to Mars in the third house, indicates a ruling
position with very great powers and honour; the native will be
superior to all of his rank. If Mars in this house is in his own house,
terms or exaltations, and Jupiter is in aspect, this makes governors
of frontier provinces, generals, vicars, praetorian prefects, and other
holders of imperium.80
The Sun is not quite as dangerous as Mars, but also powerful.
Venus on the ascendant by day makes the natives oversexed,

unchaste, of ill repute. They will be linen weavers, embroiderers, or
artists in paints, dyers, inn or tavern keepers. Saturn in aspect to
Venus in any way will make the natives effeminate, homosexuals, or
engaged in sedentary activities.81
He has personal knowledge that Mercury has often produced jugglers.82
By day [as opposed to a nocturnal chart] the waning Moon (moving

from Venus towards Saturn) makes the natives weak and afflicted
with malignant humours. They will have laborious activities
around water: they are forced to draw water from deep wells, or
ordered to clean sewers or wells; or they will be gardeners, but
poor; sailors or water carriers; fishermen or divers.83
Valentinian I and the trials at Rome for magic

and adultery
Perhaps Valentinian was convinced by all this specious learning, for a little
later he relaxed the ban on another form of foretelling the future. In a
communication to the Senate, he wrote:
79
FM, Math. 3.4.4; 3.4.15; 3.4.21.
80
FM, Math. 3.4.8: ‘faciet praesides riparum, duces, vicarios, praefectos praetorio et quibus
frequenter committatur imperium.’ I am grateful to John Dillon for suggesting that
praesides riparum refers to provincial governors along the Rhine and Danube.
81
FM, Math. 3.6.4.
82
FM, Math. 3.7.15.
83
FM, Math. 4.13.6. There does not seem to be any reference to forced labour here: ‘aut
enim ex altis puteis cotidiano opere aquam levare coguntur, [aut] iubentur adsidue lacu-
nas cluacasque [sic] purgare.’
144
I judge that divination (haruspicina) has no connection with cases of

magic, and I do not consider this superstition, or any other that was
allowed by the men of old, to be a kind of crime. . . . We do not
condemn divination, but we do forbid it to be practised harm-
fully.84
This may have referred to the pursuits of the rich and idle, since it is likely
to have been written in the context of the series of moral corruption trials
among the senatorial class in Rome. Probably in 369,85 Maximinus, at that
stage prefect of the grain supply, and a fellow-Pannonian of the emperor’s,
was made judge in the case of a Roman senator named Chilo and his wife,
who alleged that their lives were at risk from sorcery (venenis). The Urban
Prefect, Olybrius, pleaded ill-health as his excuse not to examine this and
related matters; in fact, his brother Alypius was among those subsequently
accused. Maximinus investigated and sent a report to the emperor that ser-
ious crimes were afoot; in consequence he was made vicarius of Rome, and
ordered to treat cases of magic and adultery as treason.86 This, of course,
made even senators subject to torture. (One problem in the administration
of the criminal law, and the law of treason in particular, was the lack of
juridical definition. The only enactment preserved in the Theodosian title
on treason is that of Constantine, laying down that, since the accused in a
treason trial was liable to torture no matter what his rank, the same must
apply to an accuser who did not prove his case, and to any accomplice.
Further, slaves or freedmen who attempted to accuse their owners or patrons
were at once to be crucified, unheard.87) A Senate delegation went to the
emperor, and Valentinian denied that he had wanted senators tortured, and
rescinded the law.88 Indeed, Valentinian had a year or so before, perhaps
when immorality and superstition among the upper ranks first became a
scandal needing investigation, told the Prefect of the City that the emperor
must be consulted when punishment of exceeding severity was due to be
inflicted on a member of the senatorial order because of the gravity of his
crime.89 At what must have been quite a late stage in the investigation, the
emperor wrote that, although strict inquiry into the practice of magic by
84
CTh 9.16.9, May 371.
85
See Barnes (1998), 241–46, on the timing of events.
86
AM 28.1.8–11. Earlier instances of magic and poisoning among the Roman upper classes
are known from 364, including a senator apprenticing his slave to a teacher of evil arts
(AM, 26.3.1–4). The vicarius urbis Romae was not the Urban Prefect’s deputy, but reported
to the Praetorian Prefect responsible for Italy; cf. Sinnigen (1959).
87
CTh 9.5.1, AD 314; confirmed in 9.35.1, July, AD 369, when Olybrius was still Urban
Prefect.
88
AM 28.1.24–25.
89
CTh 9.40.10, 367; cf. Matthews (1989), 210. See 9.40.13, 382/390, for a later attempt to
allow the emperor time to change his mind.
145
members of the senatorial order was to be made through the Urban Pre-
fecture, from which office Maximinus operated (at least in some matters),90
where the business could not be satisfactorily completed the persons
involved and all the records were to be passed on to the emperor himself.91
Nevertheless, in a series of trials over several years, while we do hear of
harsh punishment for some, we do not hear of many persons of rank
accused, let alone condemned.92 A senator was beheaded for adultery, and
two women of high birth put to death for the same offence; in their case the
executioner was subsequently burned alive for leading one of them to her
execution stripped of her clothes.93 Some senators were put to death for
sorcery, but no evidence of sedition or conspiracy is reported;94 then others
were executed for adultery and magic practices.95 ‘Treason’ seems to have
been defined here as that which was contrary to the discipline of the times,
which included the ‘fierce puritanism’ that made adultery a capital offence,
even deserving of the penalty of the sack.96 Ammianus’ complaint about
Maximinus’ purge of the morals of the Roman upper ranks seems to be
grounded in Maximinus’ acceptance of any report as though it were a formal
accusation,97 and his imposition of punishment which was out of proportion
both to senatorial dignity and to the offences.98 Maximinus was a Panno-
nian (like the emperors), next door to a barbarian; this was the gravamen of
the complaint. Ammianus does not assert the innocence of those accused,
and it is possible, if not very likely, that there was a real plot.99 There were
90
Sinnigen (1957), 112.
91
CTh 9.16.10, December 371. It is not clear how the Urban Prefect, by now Ampelius,
and Maximinus were intended to cooperate.
92
Hamblenne (1980), who gives the fullest details; Lenski (2002), 221–22.
93
AM 28.1.16 and 28.
94
AM 28.1.26 and 29; cf. CTh 9.16.9, 371. And some were only exiled (AM 28.1.16;
28.1.17–23).
95
AM 28.1.45 and 50 and 54–56.
96
CTh 11.36.4, 339; the adulterers were to be sewn into the sack, but then burned alive,
not drowned. The English phrase is Matthews (1989), 257. Cf. the stern treatment of
adulterers at Vercellae, recorded in Jerome, Ep. 1, of c. 374. At much the same time,
Basil, Ep. 46, offering the path of repentance to a fallen virgin, remarks that adulterers are
put to death if there are two or three witnesses, which, of course, would be seldom. Cf.
the story of Susanna and the elders (Daniel 13).
97
AM 28.1.36–37, even when coming from a ‘sting’.
98
Some distinction was made between honestiores and humiliores; most of the senators seem to
have been beheaded, whereas at least one soosthsayer was burned, and a couple of wres-
tlers beaten to death (AM 28.1.8 and 29).
99
Thompson (1947), 102–07, thinks this whole episode one where to have told the full
truth would have been dangerous. He cites Jerome: ‘Maximinus, praefectus annonae,
maleficos ab imperatore investigare iussus, plurimos Romae nobilium occidit’ (Chron. a.
375). He suggests that the elder Theodosius may have been properly executed for treason
linked with these events at Rome, and that, since Theodosius I was the reigning emperor,
Maximinus had to be blackened. Hamblenne (1980) thinks this theory ridiculous.
146
acquittals, however, and surely less injustice than Ammianus’ rhetoric

would imply. It was probably in the context of these trials that Valentinian
issued a letter to the Senate:
A pardon, conscript fathers, brands those persons whom it frees; it

does not take away the infamy of crime but grants remission of
punishment as a favour. In the case of one or two accused persons,
this may be the right course. He who pardons the Senate condemns
the Senate.100
Valentinian was here exercising very neatly a moral superiority over a group
whose political importance no longer matched their social standing.
Formalities in the criminal procedure of the fourth century

Laws regulating accusation continued to be issued. Constantine had laid
down that no oral charges were to be accepted, but only written ones, in
accordance with ancient practice.101 He had also cut back on the old free-
dom to prosecute, forbidding delations and punishing delators.102 He had
restricted prosecutions for adultery to the husband, father or brothers of the
woman concerned, so that marriages should not be disturbed.103 Indeed,
from his time, prosecution ex officio, that is by the competent official, nor-
mally acting on a formal complaint, but sometimes on rumour, was
becoming nothing unusual, although prosecution by the victim seems to
have remained common.104 But prosecution ex officio was not to mean that
persons should be imprisoned by the examining magistrate before a formal
charge had been made.105 Maximinus himself, as corrector of Tuscany, had
received a reminder that formal written accusations were required.106 The
accuser must bind himself to pursue a truthful indictment,107 and persons
under accusation themselves were not allowed to prosecute others, so as to
100
CTh 9.38.5, 371: ‘Indulgentia quos liberat notat, nec infamiam criminis tollit, sed
poenae gratiam facit. In uno hoc aut in duobus reis ratum sit; qui indulgentiam senatui
dat, damnat senatum.’ Somebody found guilty, but subsequently proved innocent, was
technically restitutus, restored to his former status, not ‘pardoned’. Cf. Seneca, clem. 2.7,
on the distinction between pardon, the remission of a deserved punishment, and mercy,
the means to natural justice.
101
CTh 9.1.5, 320; D 48.2.3.2, Paul; 48.2.7pr-1, Ulpian.
102
CTh 10.10.1 and 2, 313 and 319; Pietrini (1996). This was not the first attempt: FIRA
i 94, pp. 458–61; Giglio (2002); Barnes (1976); Corcoran (1993).
103
CTh 9.7.2, 326.
104
As indicated by the opening sentences of CTh 9.3.1, 320.
105
CTh 6.29.1, 355; 9.3.4, 365. The regulation of prisons in this period was described in
ch.5.
106
CTh 9.1.8, 366; cf. AM 28.1.6. Repeated to the Prefect of the City (CTh 9.1.9, 366).
107
CTh 9.1.11, 373/368.
147
prevent counter-accusations, or even the threatening of the judge with pro-

secution.108 Julian had ordered that the record of the charge must be issued
to the accused, without his having to ask, and that the accuser should not
be able to obtain postponements.109 There was further legislation on dela-
tors from Constantius, Valentinian and later emperors.110 The accuser was
required to bind himself against calumny before an accusation took effect;
further, people could not use mandataries to make their accusations for
them, but must be present in court, even if they were potentes, that is of the
powerful landowning class.111
A significant difference between classical law and that of the fourth cen-
tury was that in earlier times the accuser was only liable for calumny if his
charge was malicious or rash, but in the later period, partly because of the
ready application of torture, the accuser who could not make good his
charge was liable to whatever had befallen the accused.112 Also, with private
accusation becoming less common, the other procedural offences of praevar-
icatio and tergiversatio had largely disappeared, although the terms might be
used of corrupt fiscal officials compromising or abandoning suits for debts
to the treasury.113 Yet another difference was the development of the use of
amnesty, to cancel current accusations, and of pardon, to release petty
criminals.114
At least in civil cases, the burden of proof was firmly on the pursuer: ‘Not
only the logic of law but also equity itself justifies the requirement that the
person suing for the money must bring proofs with him and must convict
the debtor.’115 Witnesses were always on oath, and those of higher status
deserved greater credence. The rule that one witness was insufficient for full
proof became formalized.116 Written instruments had great force, although
they could be challenged.117 Even in cases of magic it was legally possible
to demand proof, or at least confession, which was considered the best of
proofs, despite its known unreliability when extracted under torture.118
Evidence of magic has always been difficult to obtain, although proofs of
attempted magic are another matter. The picture given by the constitutions
108
CTh 9.1.12, 374/375. Cf. 9.1.19.1, 423; also D 48.2.4, Ulpian.
109
CTh 9.1.6, 362–63.
110
CTh 10.10.4, 338; 10.10.10, 365. The main target seems to be delators to the fisc.
111
CTh 9.1.14, 383; 9.1.15, 385, and 17, 390; 9.1.19pr, 423. See also AM on Petronius
Probus, 27.11.1; 30.5.4–10; Wacke (1978).
112
Cf. CTh 9.37.2 and 4, 369 and 409; see the treatment of procedural offences in Ch. 4.
113
E.g. CTh 10.15.3, 340.
114
See Waldstein (1964); Robinson (1999).
115
CTh 2.28.1, 422. In cases concerning right to property, the burden might be switched
to the defender (CTh 11.39.1, 325).
116
CTh 11.39.3, 334; on the latter point, see Metro (2001).
117
CTh 11.39.5, 362.
118
See chs 2 and 5.
148
in the Theodosian Code of this period is still one of due process struggling
to be observed.
The trials at Antioch in 371–72
The origins
The events at Rome in 369–71 were the western background to the more
devastating trials of AD 371–72 at Antioch, of which Ammianus seems to
have been an eye-witness, when men of the senatorial order, and therefore
possible aspirants to the throne, were accused of practising magic, treason-
able magic. The Emperor Valens was staying in Antioch in the autumn of
AD 371, after concluding an armistice with the Persians, the external enemy,
when he almost fell victim to domestic plots; he had already escaped various
attacks.119 The story is somewhat complex. A certain Procopius, who
appears to have been acting simply as a delator,120 charged two minor offi-
cials with having made an attempt on the life of their superior, For-
tunatianus, count of the privy purse (comes rei privatae), because they had
been ordered to restore monies which they had misappropriated. Once con-
vinced that magic was involved in the attempt, Fortunatianus referred the
matter to the court of the Praetorian Prefect, who was the same Modestus as
had presided over the trials of 359. Fortunatianus also handed over as pos-
sible witnesses one Palladius, who had allegedly been hired as a poisoner by
the pair, and an interpreter of horoscopes called Heliodorus. When his
interrogation became severe, Palladius claimed that, if they would only let
him, he could speak of much more serious matters, plots far advanced,
which threatened the very state.121 On being told to speak out, he said that
Fidustius, a former provincial governor, and one Pergamius, a court official,
had secretly learned, by the detestable arts of divination, the name of the
man who would succeed Valens as emperor. Fidustius happened to be in the
neighbourhood, and he was at once arrested, brought in secretly, and con-
fronted with Palladius. He did not attempt to deny the plot, but disclosed
its details. He, together with Hilarius, a former member of the palatine
guard, and Patricius, who were both skilled in divination, had sought to
learn about the next ruler. The predictions produced by secret arts had
named the coming of an excellent emperor, and also a grievous end for those
119
AM 29.1.4 and 15–16.
120
Despite Constantine’s prohibitions, renewed by Valentinian and Valens in 365 (CTh
10.10.10).
121
Ulpian would not have been so sympathetic – D 48.9.6pr: ‘For who doubts that they
have recourse to these expedients for the sake of escaping punishment, and that they
deserve heavier punishment for having left unsaid so long that which they claim to have
to say concerning the emperor’s well-being? For they ought not to have been silent for so
long over so important a matter.’
149
inquiring. They understood the man indicated to be Theodorus, a fairly

senior civil servant, a man of a noble Gallic family, well-educated, eminent
for all the virtues. Fidustius, near to death from the tortures he had suffered,
added that Theodorus had learned of all these predictions from him through
the intermediary of Euserius, recently ruler pro praefectis of Asia. Euserius too
was arrested and imprisoned.122
When the reports of these interrogations were read to the emperor, as was
the custom, Valens was enraged, and his rage was encouraged by Mod-
estus.123 Orders were given that Theodorus should at once be brought back
to Antioch from Constantinople, where he had gone on private business. In
the meanwhile, arising from various preliminary inquiries which were being
held both day and night (ex praeiudiciis variis quae diebus exercebantur et noc-
tibus), many men of rank and birth were being dragged from widely sepa-
rated localities. Not only were the public prisons full to overflowing, but
the private houses of those who might suitably have custody of detainees of
the better sort124 were insufficient for the crowds of prisoners, many of
them in chains, all in dread for themselves and their families. Then Theo-
dorus himself arrived, prepared for death and in mourning; he was hidden
away in a remote part of the district.125 Yet it was Valentinian, and Valens
in theory as co-emperor, who were responsible for a law requiring the proper
forms of written accusation, with statement of the charge brought, since no-
one should be allowed to bring terror to another with the rumbling of a
criminal affair.126
Ammianus does not deny that Valens’ life was indeed in danger, from
simpler attempts at assassination as well as from conspiracies by aspirants to
the throne. There clearly was a palace conspiracy, even if the great crowds of
conspirators reported by Ammianus must be an exaggeration. Valens was
quite entitled to protect himself from treason. What was unforgivable was
that his despotic rage led him to prosecute guilty and innocent alike, under
the same law, making no distinction as to what they deserved. While there
was still doubt concerning the charge, the emperor had no doubts about the
penalty, and men were condemned to death before they even knew they
were under suspicion. This stubborn purpose grew stronger, stirred on by
his own greed, and that of his courtiers, for the estates of the condemned;
any mention of clemency was rejected as stupidity, yet the semblance of mercy
was claimed, for sparing some lives. Unfortunately Valens was both exposed
122
AM 29.1.5–10.
123
Modestus was the man who advised the emperor not to bother with judging civil causes,
and thus opened the way to the greed and wickedness of judges and advocates (AM
30.4.2; cf. Symmachus, rel. 38; CTh 9.27.5 and 6, 383 and 386).
124
House arrest, in their own home or in the house of a senior official, remained common
for upper-class suspects.
125
AM 29.1.10–14.
126
CTh 9.1.8, AD 366: ‘Non sinendum est ut quisque negotii criminalis strepitu terreatur’.
150
to schemers and prone to blind anger, and too proud to doubt that what was
whispered to him was not true and certain.127 This is the kind of thing that
had been said before about emperors, and although it may be a commonplace,
it may also be true. Ammianus was morally outraged by the savagery and cor-
ruption of absolute power. But it does tell us that not all caught up in the
conspiracy were executed; the bloodbath was somewhat exaggerated. What one
can be sure of is that some people took the opportunity to pay off old scores.128
Theodorus on trial
The Praetorian Prefect and the other investigators resumed the interroga-
tions, presumably under Valens’ directions. Ammianus’ language about the
presence of the instruments of torture and the, obviously deliberate, terri-
fying yells of the interrogators, may even mean that he was himself present,
as judge or witness.129 Pergamius, the former court official, appeared; he did
not wait to be questioned by the judges but shouted out an endless flood of
names of those complicit in the plot, men from all over the Roman world.
He was rapidly executed, as were others after him in flocks; then they came
to Theodorus.130
The judges of the court now in session might call attention to the pro-
visions of the laws, but they acted in accordance with the wishes of their
ruler, and terror gripped everyone, as a result of Valens’ ragings. Patricius
and Hilarius, the soothsayers and Fidustius’ tools, were brought in and
ordered to give a coherent account of what had happened. Their accounts
were not identical to start with, but various tortures cured that. Hilarius
explained that they had constructed a tripod on the model of the one at
Delphi, consecrated it by secret incantations, and after much practice at
length made it function – roughly speaking, like a cross between table-
skittles and a ouija board. In a room in a purified house, a plate of various
metals was set on the tripod, with the letters of the (Greek) alphabet
engraved individually around its rim with spaces between them. Above this
was suspended a ring on a fine thread; this was set moving by a man dressed
all in linen, reciting the correct formulas; it indicated various letters. What
it spelled out was ‘Theod’, whereat everybody agreed that this must mean
Theodorus, and nothing further was done.131 Theodorus, Hilarius added,
had known nothing of all this. The pair were then asked if their own fates
had not been foretold, to which they replied that they had been, but so too
127
AM 29.1.18–22. Informers were clearly still being rewarded (cf. CTh 10.10.11, AD 369;
and 12, AD 380, January).
128
As they had in the days of Sulla (see ch. 2).
129
AM 29.1.23–24.
130
AM 29.1.25.
131
The incantations must have been performed properly; Theodosius was to be the next
emperor.
151
were the Furies threatening the emperor himself; verses of ill omen were
then quoted. (Ammianus adds elsewhere132 that this prophecy much dis-
turbed the emperor, and was indeed applicable to his death in AD 378.)
Then the two, shattered by the torture hooks, were removed, senseless.133
To further the inquiry, a group of distinguished persons was led in,
allegedly the leaders in the affair. Since, as Ammianus says, each had regard
for nobody but himself and each tried to shift his downfall onto another,
Theodorus was given permission to speak. He first prostrated himself in a
prayer for pardon, but not surprisingly he was forced to reply to the point.
He said he had learned of the affair from Euserius, who had prevented him
informing the emperor, as he had several times attempted, on the grounds
that no unlawful ambition but some inevitable working of fate would bring
him to the throne. Euserius, under bloody torture, made the same confes-
sion. But the court refuted Theodorus’ claims to innocence with letters of
his own,134 written in oblique terms to Hilarius, a former member of the
palatine guard as well as a soothsayer, in which, with hopes strengthened by
the soothsayers, he sought to know the right time to achieve his desire.
Theodorus and Euserius were removed under restraint. Eutropius, then
governing Asia with proconsular imperium, was accused of being an accom-
plice in the plot, but he escaped unharmed, being cleared by the philoso-
pher Pasiphilus who, although cruelly tortured to pervert justice with a lie,
could not be turned from the truth. The philosopher Simonides was also
accused of having heard of the affair from Fidustius; he saw that the trial
depended not on truth but on the nod of one man, and he said that he had
heard of the predictions but that he had kept silent as to them.135
At this stage of the inquiries, the emperor gave his response to the
judges. The court may have formally been his, rather than the Praetorian
Prefect’s, whose jurisdiction was always technically vice sacra. In one con-
sidered sentence, he ordered all to be put to death, and so they were all led
away and strangled (iugulati), except for Simonides, who was ordered to be
burned alive. It was clearly the strangling which aroused popular shock and
horror; it was by this period a death which did not respect the rank of the
condemned.136 In the ensuing days many others were interrogated. Some
were put to death, even while inquiry was being made as to whether they
deserved punishment. It was like a slaughterhouse.137 In the aftermath of
132
AM 31.14.8.
133
AM 29.1.27–33.
134
We do not know under what powers the court obtained these letters; earlier the court
could certainly demand access to the financial accounts of an accused.
135
AM 29.1.34–37. Note the involvement of philosophers with divination and politics.
136
‘This Republican form of execution (strangulatus in carcere) was rare in imperial times,
when the tendency was to humanize the execution of citizens.’ Sherwin-White (1966),
165. He must be thinking only of the early Principate.
137
‘ut pecudum ubique trucidatio cernebatur’ (AM 29.1.38–40; cf. Tac. Ann. 6.19).
152
the inquiries, the philosopher Maximus was beheaded – an honourable

death, at least – in his home town of Ephesus, since he too had heard of the
predictions although he had not talked of anything secret. Diogenes, a
former governor of Bithynia, was also executed, probably for the sake of his
estates. Alypius, former vicar of Britain, although long retired, was accused
together with his son, Hierocles, of magic practices, on the sole evidence of
a (different) Diogenes, a man of humble origin. The accuser was tortured
and burned, but Alypius was sent into exile, after confiscation of his prop-
erty;138 Hierocles escaped with his life, after popular clamour.139
Dangerous writings
The judges, perhaps to provide a distraction from the unpopularity of the
killings, ordered the burning of innumerable books as unlawful, and huge
heaps of volumes were pulled out from men’s houses, although most of
them dealt with the liberal arts, or even the law.140 It has been held that
‘the trials virtually wiped out the remaining pagan philosophers of the east’,
because of the loss of so many of their libraries.141 However, it has also been
remarked that
the Neo-Platonist Academy at Athens entered one of its most bril-

liant phases in the fifth and early sixth century, and pagan philo-
sophers travelled in the sixth century on religious pilgrimages to
sacred spots in Syria and wrote important and lasting commentaries
on Aristotle.142
Perhaps it just took time to copy out the books again.

Book burning was not new. Books dealing with magic had often been
held at best dangerous, at worst evil and eventually criminal. The Emperor
Augustus had more than 2,000 scrolls of prophetic writings burned in 13
143
BC, retaining only the Sibylline books – and not all of them. In Ephesus,
at the end of the first century AD, under the influence of St Paul, many
brought their books of magic art to be burned.144 In the Digest we read
that someone charged with the division of an inheritance who found harm-
ful drugs and poisons (mala medicamenta et venena) should not distribute
them but rather destroy them, as he should books on unacceptable subjects,
138
AM 29.1.39–44.
139
The whole city running to the Hippodrome, according to John Chrysostom, or. 3.7
(=PG 48, col.726).
140
Cf. AM 28.1.26.
141
Curran (1998), 93, n. 43, citing R.T. Ridley, Zosimus: New History (Canberra, 1982).
142
CAH XIV (2000), 977–78, in the editorial Conclusion.
143
Suet. Aug. 31.1.
144
Acts 19.19.
153
on magic or anything of that sort.145 There would seem to have been leg-
islation to this effect:
Nobody is permitted to possess books of magic art; if someone is

found in possession of such books, after his property has been con-
fiscated and the books publicly burned, he is deported to an island
or, if humilior, capitally punished.146
The men who had books of this sort, books which might seem dangerous
enough to be ordered to be burned, clearly had a literate, even scholarly,
tradition; there were professional authors as well as professional magicians.147
Meanwhile, Palladius (the man whom Fortunatianus had arrested as a
hired poisoner in the pay of the two embezzlers, but had then handed over
to the Praetorian Prefect’s court) was busily spreading disaster. He had
clearly been given an amnesty. He named ever more persons as having
dabbled in forbidden arts, indulged in the use of poisons, or been accom-
plices of those intending treason. Officials were immediately sent to search
and seal the houses of those accused; while doing this, they often planted
written incantations and amorous potions to bring about their victims’
ruin.148 When these were read out in court, no attempt was made to dis-
tinguish truth from falsehood but, without opportunity of defence even
though guilty of no crime, young and old alike had their property con-
fiscated, their limbs tortured, and then were carried off in litters to their
execution. (We are given no figures.) In consequence, throughout the eastern
provinces whole libraries were burned by their owners for fear of something
similar.149 At that time, says Ammianus, ‘we all crept about as if in Cim-
merian darkness’, in terror of unannounced destruction. It has been sug-
gested that ‘terror was used by these emperors as a political weapon against
counter-forces in the state, both real and potential’.150 And pagans may
have been particular targets, although it is clear that it was treason and
magic rather than religion that led to their downfall; the neo-Platonist
philosophers did, after all, dabble in theurgy and magic.
The resumption of the inquiries

Heliodorus too, the astrologer and partner of Palladius, was now operating
under secret instructions from the imperial palace. He held the office of
145
D 10.1.4.1, Ulpian: ‘in libris improbatae lectionis, magicis forte vel his similibus, haec
enim omnia protinus corrumpenda sunt.’
146
PS 5.23.18.
147
Ogden (1999), 54–57.
148
Compare the articles found in Germanicus’ room (see ch. 3).
149
AM 29.2.4; cf. John Chrysostom, Hom. ad Acta Ap. 38.5 (= PG 60, 274–76).
150
Blockley (1975), 119; 121.
154
praepositus cubiculariis officiis, which gave him access to the women’s apart-
ments, where he freely displayed the imperial warrants (elogia) which were
to cause such grief. Through these warrants, he was able to give titbits of infor-
mation to Palladius on how to make his accusatory speeches more effective.151
Heliodorus himself went so far as to accuse the brothers Eusebius and
Hypatius, brothers-in-law of the late Emperor Constantius, who had been
consuls in AD 359, of treasonable aspirations in these troubled days, even
alleging that royal robes had been prepared for Eusebius. Valens was ready
to believe anything; he summoned from the furthest regions those described
as witnesses by the accuser, a man treated as free from the bonds of law as
regards calumny,152 and ordered an inquiry to be made. Although Heliodorus
persevered in his calumnious accusations, severe tortures could force no confes-
sions but showed the distinguished pair as free of any guilty conscience.
Nevertheless, Heliodorus retained his position, and they were punished with
exile and fines, although admittedly soon afterwards they were recalled, the fines
returned and their dignities restored. Yet when Heliodorus died, whether
naturally or murdered, many men of rank, including the consular brothers,
were ordered to dress in mourning and lead the funeral procession. Valens
was earnestly besought to refrain from such inexcusable insult, but refused
to listen;153 this is a whole world away from Augustus or the Antonines.154
Oddly, Valens spared the military tribune Numerius. He was convicted,
on his own confession, of having cut open the womb of a living woman to
remove her unborn child to use in his invocations of the dead. This may not
have been murder, for she could well have been his own slave, but it was
undoubtedly nefanda. Yet in spite of the protests of the whole Senate, he
escaped unpunished in any way.155 Ammianus’ dating is unhelpfully vague,
but it is possible that legislation was passed as a direct consequence of the
affair: ‘If anybody should be convicted of making a sacrifice by killing an
infant, it will be a capital offence.’156 Valens, says Ammianus, had never
learned that royal power is best understood as care for others’ welfare, that it
is the duty of the good ruler to restrain his anger and hesitate before
inflicting that which cannot be undone.157 It was the lack of opportunity to
151
All this confirms that there had been a real palace conspiracy, even if it had not spread so
widely as the emperor was ready to believe.
152
Zosimus commented on the freedom from the danger of calumny with which the accu-
sations could be made (4.14.4).
153
AM 29.2.6–16.
154
Consider the calm end of Thrasea Paetus in AD 66, after an evening discussing philoso-
phy; he and Barea Soranus were allowed to choose their own deaths, while others
implicated were exiled from Italy, and yet this was a trial for treason where magic
practices were admitted (Tac. Ann. 16.21–35).
155
AM 29.2.17.
156
CTh 9.14.1, 7 Feb. 374, issued by Valentinian: ‘Si quis necandi infantis piaculum
aggressus aggressave sit, erit capitale istud malum.’
157
AM 29.2.18. Cf. Seager (1986), 131–38.
155
make a defence, that basic lack of due process, which seems so to outrage
Ammianus, and to mark a departure from earlier practice, even in the trials
of the Christians.
The continued prohibition of pagan sacrifices and

divination
The use of magic, and also pagan practices, continued to be forbidden.
Sacrifices by day or night in order to consult future events were condemned
again by Theodosius I.158 Soothsaying and haruspication were the target
four years later:
No mortal shall assume the audacity of performing sacrifices so that

by the inspection of the liver and the presage of the entrails of the
sacrificial victims he may obtain the hope of a vain promise or,
what is worse, he may learn the future by an accursed consultation.
The torture of a very bitter punishment shall threaten those persons
who, in violation of our prohibition, attempt to explore the truth of
present or future events.159
There was further severe legislation in 389, clearly referring to some parti-
cular scandalous episode involving a charioteer.160 Sacrifices and entry, at
least reverent entry, into pagan temples and shrines continued to be for-
bidden, as did the worship of the lares and of images, but scrying the future
remained the most feared activity:
If any man should dare to immolate a victim for the purpose of

sacrifice or to consult the quivering entrails, it is permitted to all
persons to accuse him as with someone guilty of high treason, and
he shall receive the appropriate sentence even though he has made
no inquiries contrary to, or with reference to, the welfare of the
emperors. For it is sufficient to constitute an enormous crime that
any person should wish to break down the very laws of nature, to
investigate forbidden matters, to disclose hidden secrets, to attempt
interdicted practices, to seek to know the end of another’s life, to
promise the hope of another person’s death.161
158
CTh 16.10.7, 381.
159
CTh 16.10.9, 385.
160
CTh 9.16.11, 389, but charioteers were frequently in trouble, e.g. AM 15.7.2ff; 26.3.3;
28.1.27; 28.4.25. Cf. Procopius, Anec. 1.12–13.
161
CTh 16.10.12.1, 392. It was only in s. 2 of this statute that thurification, the sacrifice of
incense to the gods, was forbidden; it offered fewer opportunities for divination than
animal sacrifice.
156
In 409 astrologers (mathematici) were to be banished not only from Rome

but from all municipalities unless they were, after seeing their books burned
under the supervision of the bishop, prepared to forswear any further prac-
tice of their false doctrine and become Christians; deportation was the pen-
alty for disobedience.162 Justinian did not include all of these laws in his
Code, nor did he himself legislate on the topic, presumably because in his
more disciplined and more fully Christian society they posed no real
threat.163 Procopius, however, describes Justinian and Theodora as bitterly
hostile to astrologers, in spite of their being old men and respectable in
every way.164 According to him, magic and poisoning were still charges
used as sticks with which to beat the disgraced;165 but even in his veno-
mous account, they do not feature very prominently under Justinian.
162
CTh 9.16.12, 409.
163
CJ 9.18 has nine constitutions, as opposed to the Theodosian twelve; see Robinson
(1995), 93f.
164
Procop. Anec. 11.37–41.
165
E.g. Procop. Anec. 9.39; 22.32.
157
Chapter 7
JUSTINIAN THE LEGISLATOR
So far this book has been concerned with ‘famous trials’ primarily from the
viewpoint of the historian (Livy, Tacitus, and Ammianus), of defence counsel
(Cicero and Pliny) and prosecuting counsel (Pliny), and of the victims
(ACM). In the absence of adequate evidence for the course of any fifth- or
sixth-century trial, we must move away from trials, and consider finally the
legislator, the Emperor Justinian (527–65). Legislative sources have been
used in previous chapters, but largely as supplementary to the literary ones;
there were the SCC which dealt with the Bacchanalians and with Piso, and,
of course, the Theodosian Code, a witness to legal attitudes in the fourth
century. However, Justinian’s legislation, in both wide and narrow senses, is
particularly important for the understanding of Roman law; in its light, as
well as that of some less juridical sources, one may consider how far theories
of punishment explain penal policy.
Justinian and the Corpus Iuris Civilis

In the wider sense Justinian is the creator of the Corpus Iuris Civilis. He did
not write the texts of Digest, Institutes or Code, but he (through Tribonian
and the other compilers) preserved them, edited them, arranged them. A
code, if no more, must have been a project he had already been meditating
while heir to Justin, for he became emperor in 527 and the first edition of
his Code was published in 529. The works comprising the Corpus give us
his view of law as it should be known to the lawyers of his Empire, to the
law schools, to the courts and their clients. Almost all our knowledge of the
Roman legal sources1 comes to us through Justinian. The Corpus has affec-
ted all subsequent law in Europe and in the wider world influenced by
Europe. Roman criminal law was less influential than Roman private law,
but it was still important, and it also had an indirect influence on later
developments through the canon law. So, while our main purpose is to look
1
For the various interpretations of this term, see Robinson (1997), with further information
on the Corpus Iuris Civilis.
158
J U S T I N I A N T H E L E G I S L AT O R
at Justinian’s attitudes, as well as those of other Romans, to penal practice

and policy, we must not forget that he passed his views and his principles to
our ancestors, and thus helped shape our attitudes to criminal jurisprudence.
Some of his views on interrogation and punishment took an unfortunately
long time to disappear. Of course, the views he passed on were not precisely
the attitudes of his day, but a composite of earlier and existing Roman
attitudes, with input from the first century of the Empire onwards.
It seems likely that it was the compilation of the Digest that led Justi-
nian to order a revised version of the Code. Since the enactments in each
title of the Code were arranged chronologically, new legislation did not
need a new Code, merely the addition of new laws at the ends of titles, a
scribal task. But the system used in the Digest may well have led to the
introduction of the titles on the crimina extraordinaria in Book 9 of the
revised Code. Justinian actually says in Tanta, the Latin form of the enact-
ment publishing the Digest:
Next there are two terrifying books on delicts and private crimes
and then public crimes, which describe the whole severity and
harshness of penalties. With these are mingled the provisions that
have been made concerning audacious men who try to hide them-
selves and display themselves as contumacious, and also the penal-
ties that are inflicted on – or remitted to – condemned persons and
their property.2
The juxtaposition of the contents of Digest Books 47 and 48 was thus quite
deliberate. The only major delict not included in Book 47 was liability for
damage to property under the lex Aquilia,3 and this was presumably exclu-
ded because it was essentially treated by the jurists in terms of negligent
fault (culpa), not malice (dolus).
Justinian’s own legislation in Code, Book 9

In the narrow sense Justinian’s legislation is to be found in (the second
edition of) his Code, and in the subsequent Novels. There are seven of his
laws in Book 9 of the Code, the Book devoted by his compilers to criminal
law, five of them dated to 529. The first, in Greek, to Mena the Praetorian
Prefect and dated 18 January, is concerned with issues of procedure, with
the preliminaries to a trial. It restricts to the higher magistrates at Rome,
and to governors and defensores civitatis in the provinces, the power of
2
Tanta, s.8a; Dedoken, s.8a, the Greek version, talks separately of extraordinary crimes and
delicts, explicitly making the former intermediate in seriousness between delicts and
crimes of the ordo.
3
D 9.2.
159
remanding an accused in custody. It lays down that it is the bishop’s duty to

visit prisons weekly to discover the charges made against the prisoners,
whether they are slave or free, whether they are there for debt or for some
criminal charge. Slaves must be brought before the court within twenty
days, and either punished or returned to their owners; if no owner appears,
they are to be let go. A free man on remand on a criminal charge is to be
freed on giving sureties; if he cannot provide security he may be held six
months, or at most a year, within which time the case, unless it is capital,
must be decided. Someone accused not by a private citizen but ex officio
cannot get bail, but the case must still be heard within six months. No bail
is to be granted, however, where there is a presumption of guilt (cum autem
praesumptio extiterit eos obnoxios esse). Magistrates and their office staffs who
fail to observe these regulations are to be liable to a fine of 10lb of gold; it
is for the local bishop to denounce them.4
A longer law, separated in the Code from the one just cited but pre-
sumably issued originally as part of one complex Novel since it has the
same date and addressee, was concerned with regulating the penalty of exile,
in particular exile to a designated place. This forbade those sent into exile to
be kept imprisoned in the places to which they were sent, and forbade
anyone to be relegated to the fortress of Gypsus (a mining town in Egypt)
or to other garrisons (praesidia). Those exiled for a capital crime, whether to
perpetual or temporary exile, were also not to be kept under prison condi-
tions but sent to the province specified by the judge, with the right to live
in any part of that province;
, they were not, however, allowed to leave it, or
to act turbulently (asajsx|) while remaining within it. For such turbulent
behaviour the exile was to suffer the death penalty, imposed by the governor
either of the first province or of the province to which he fled. Those thrown
into prison in the capital were not to remain there longer than the six
months or year already specified.5 In the provinces too inquiries into crimes
should not be delayed; if anybody seemed deserving of exile, he should not
be imprisoned but relegated at once to one of the permissible provinces, on
terms again that he was to suffer the ultimate penalty if he fled the province
or acted turbulently therein. Only the governors of Alexandria and the
Thebais were permitted to relegate to Gypsus or the Great Oasis, and then
only for six months, or at most a year; thus these could not be used for
perpetual exile. The office staff of each court was to keep the governor
reminded that nobody was to be held beyond the fixed period of his exile
but to be released immediately, without loss or delay; anybody who had
dared to accept something (perhaps as a bribe for the due release) must
restore it fourfold. The local bishops were responsible on behalf of those
4
CJ 9.4.6, 18 Jan. 529.
5
In CJ 9.4.6, as above.
160
relegated, whether temporarily or in perpetuity, for seeing that these reg-

ulations were observed.6
Private prisons, whether in town or country, were totally prohibited in
another law (originally, one presumes, also part of the same long Novel),
again addressed to Mena the Praetorian Prefect and dated 18 January.
Anyone establishing a private prison, whatever his status, was to serve as
many days in the public prison as persons had been shut up in his private
prison; further, he was to forfeit his case against anyone thus illegally
imprisoned. The bishop and the governor were to see to this, and a governor
who neglected his duty was at risk for both his property and his personal
safety (salutis).7 The first law in this title of the Code is dated 486, from the
Emperor Zeno, again to the Praetorian Prefect. Nobody was to run a private
prison in Alexandria or Egypt or anywhere else in the empire, whether in
the country or at his private house; it was the duty of the Prefect of Egypt
and other provincial governors to check the arrogance of such wicked men.8
If they did not punish them as treasonable, it would be held akin to treason
in them too, and the senior members of the office staffs were under the same
threat. The penalty for keeping a private prison was, as for treason, the
aggravated death penalty (ultimum supplicium).9 It is possible that Justinian,
like Zeno, was thinking particularly of conditions in Egypt, since the part
of the law regulating exile seems particularly concerned with Egypt. So
Justinian retained Zeno’s law, with its minatory approach, in the Code, but
his own penalty was considerably more realistic, and probably more deter-
rent. Perhaps the governor had the discretion to apply Zeno’s penalty in
aggravated circumstances.
Another law, again addressed to Mena – this one is in Latin – but dated 1
April, also deals with procedure, in this instance with the time to be taken
to bring a case to a conclusion. It requires the whole criminal process fol-
lowing litis contestatio to be completed within two years, with no further
postponements; if the matter had not been concluded by then, the accused
was to be released. Judges and their staffs who allowed litigants to prolong
matters were liable to a fine of 20lb of gold.10 The one-year period laid
down by Honorius and Theodosius had clearly been found too short;11 in
Justinian’s Code, in which that enactment is preserved but edited, the
reference is only to ‘the fixed time’.12 Older laws on procedural time limits
had largely been aimed at preventing the parties, particularly the defence,
6
CJ 9.47.26, 18 Jan. 529; so also to Mena.
7
CJ 9.5.2, 18 Jan. 529.
8
The practice was not new; consider the fate of Marcus Aurius in the Social War (ch. 2).
9
CJ 9.5.1, 486.
10
CJ 9.44.3, 1 April 529.
11
CTh 9.36.2, 409.
12
CJ 9.44.2, 409: certum tempus. This neatly illustrates the way Justinian’s compilers might
use and update the Theodosian Code.
161
prolonging matters indefinitely; Justinian seems more concerned with the

judges’ minding their duty.
In September 529, in another law again addressed to the Praetorian Pre-
fect, here Demosthenes, the slaves of a disputed inheritance, including those
freed in the testator’s will, were permitted to be tortured to reveal any
unknown facts, including the whereabouts of corporal property in their
charge; not only were they to be tortured, but upon oath.13 The reference to
the torture of slaves is presumably why this is placed in Book 9, but the
context is really the private law; the rest of what seems to be the same law
is elsewhere in the Code, in the title on the oath against calumny, where it
is stated that torture is only to be used when other proofs fail.14 The pre-
sence in Book 9 of a law of October 532, when John is the Praetorian Pre-
fect addressed, probably has the same rationale. On the occasion of a divorce
for adultery, the slaves of both spouses and of their parents are to be in effect
sequestered for two months in case their evidence – under torture – is
needed; this is also to apply after a wife’s death, in case an allegation of
adultery should affect the dotal actions.15
There was, however, one innovatory enactment issued by Justinian in 533
concerned with the substantive law, de raptu virginum et viduarum.16 Raptus is
an ambivalent term; it connotes plundering and carrying away. It seldom
means rape in the modern criminal sense, which probably fell between stu-
prum and vis, but there is an element of violence which makes ‘ravishing’ a
rather more suitable translation than ‘abduction’ – ‘if anyone . . . ravishes a
woman against her will or abducts a willing one’.17 It was, however, some-
times linked with abduction-marriage.18 This law of Justinian’s did not
introduce a new crime, but a radically new treatment. The earlier legisla-
tion, appearing under the same rubric in the Theodosian Code, laid down
that if a man, without previously having come to an agreement with a girl’s
parents, ravished or abducted her with a view to acquiring her patrimony,
and hoped to obtain protection by her consent, this would avail him noth-
ing, even if she did then agree to marry him, because of women’s frivolity
and fickleness; rather she was to be punished as his accomplice. Corrupted
nurses or attendants were to have their throats stopped with molten lead.
The girl was to be punished with the same severity as the ravisher if she had
13
CJ 9.41.18, 529; why this should need to be said is obscure; cf. already CJ 9.41.10, 290.
14
CJ 2.58.1, 529, as had been said by Antoninus Pius (D 48.18.9pr, Marcian 2 de iud. pub.).
15
CJ 9.9.35, 532; no accusation had yet been made. It is slightly different from CTh 9.7.4,
385, which limits the liability of slaves to be questioned to those who were in the house
at the time of the alleged offence.
16
CJ 9.13.1, 533; it also covered the ravishment of married women and of fiancées, ss. 1a
and b.
17
CTh 9.24.1pr, 320: ‘si quis . . . invitam eam rapuerit vel volentem abduxerit.’
18
Evans-Grubb (1989) and also (1999). On an apparent abduction-marriage in fifth-century
Gaul, see Koptev (2004).
162
agreed to his advances; if it was against her will, she ought to have stayed at
home and, if the doors were broken open, to have screamed for the neigh-
bours, but she was to be punished more lightly, simply denied the right of
inheritance to her parents. A ravisher convicted beyond doubt – indubitate
convictus, a loaded statement – was to have no right of appeal. A slave who revealed
an abduction which had been covered up or compromised was to get his
freedom as a Junian Latin (with citizenship for one who was already a
Latin), and the parents were to be deported. Accomplices were to be capitally
punished, being burned if servile.19 Constantius had modified the penalty to
simple capital punishment, while retaining the flames for any slaves.20
Valentinian, Valens and Gratian dealt specifically with abduction-marriage; they
allowed a five-year period from the deed within which to bring an accusation,
after which the right lapsed, and any children must be held legitimate.21
Justinian chose to exclude these laws from his Code, although retaining
in his own words certain of their provisions. His is the only constitution
under this rubric. The original law seems to have been much longer; one
part of it dealt specifically with the ravishing of consecrated virgins and
deaconesses,22 and another with the constitution of marriage, even without
a dowry, and the dotal consequences of both unjustified and justified divorce
by the man.23 In the law as published in Book 9 of the Code, the ravisher
was to be pursued wherever he fled throughout the Empire. He was denied
the right of appeal, explicitly following Constantine’s model, but the charge
against him must be properly proven;24 the penalty was death and con-
fiscation of all property. A freeborn victim acquired the entire confiscated
property of her ravisher, which could be added to her dowry or remain in
her full ownership. This reward was Justinian’s particular innovation, but
freedwomen or slaves did not benefit from it. The victim was to be allowed
to marry whomsoever her parents wished, except the ravisher. The ravisher’s
active accomplices like him suffered confiscation and death, but indirect
accomplices, male or female, although also put to death, could leave their
property to their families. Parents who tried to cover up the affair were to suffer
deportation; treacherous slave attendants were to be burned, regardless of
sex, as Constantine had laid down. The law explicitly abrogated the lex Iulia
19
CTh 9.24.1, 320.
20
CTh 9.24.2, 349.
21
CTh 9.24.3, 374.
22
CJ 1.3.53, 533; it gave the estate of the ravisher to the victim’s convent or diocese,
reserving for her a competence. It completely replaced CTh 9.25.1–3, and was slightly
amplified in NovJ 123.42 of AD 546.
23
CJ 5.17.11, 533. Two other possible parts of the same law, since all are addressed to
Hermogenus, magister officiorum, are CJ 7.24.1, abolishing the SC Claudianum, and
11.48.24. All take a relatively enlightened attitude towards women, like his treatment of
prostitutes in NovJ 14.
24
CJ 9.13.1c: ‘post legitimas et iuri cognitas probationes.’
163
(presumably referring to Augustus’ marriage legislation generally) and later

legislation on rape and ravishment,25 perhaps including the five-year pre-
scription on bringing an accusation. The woman’s consent was no defence,
but Justinian did not seem inclined to blame her.
To clarify some points he revised the law in a Novel of 563. The victim
was not permitted to marry the ravisher in any circumstances – he ought, of
course, to have been executed; if her parents consented to such a marriage
they were to be deported. If she married him against her parents’ will, they
received the ravisher’s entire estate; if they were dead it was to be claimed
for the fisc as ultimus haeres. The law was to have retroactive effect.26 In pre-
Justinianic legislation the victim is presumed to be responsible for her fate;
to judge from the rhetoric, Constantine’s main concern seems to have been the
punishment of the woman who was seduced. Justinian’s attitude was not directed
against the unfortunate women, but aimed to ensure the transfer of the
property of the ravisher or would-be ravisher to the victim, or, in the case of con-
secrated women, to the appropriate religious establishment, which is pre-
sumably why that part of the law was placed in Book 1, not Book 9, of his Code.
Justinian’s legislation on criminal matters in

his Novels
In his legislation subsequent to the publication of the (second) Code in 534,
that is, in his Novels, Justinian introduced little of substance into the penal
law or its procedure. Most references to matters criminal were simply laying
down what constituted just grounds for divorce or disherison, or giving
orders in generalized terms to officials to repress wrongdoing in their pro-
vinces.27 Where there was something more specific, it is clear that Justi-
nian’s particular concern was with offences against morals, sexual offences.
We have already mentioned Novel 143 (= 150), an amending statute on
ravishment. There are three Novels on incestuous marriages.28 In Novel 12
of 535, addressed to Florus, count of the privy purse (comes rerum priva-
tarum), Justinian deplores the lax attitude taken by earlier emperors, and
insists on the punishment of the guilty. Yet he seems primarily concerned
with the rights of any legitimate children from a previous marriage; their
existence gives them succession to the whole estate, which otherwise is
confiscated.29 The man in the union is to be deprived of any office and sent
25
‘Omnibus legis Iuliae capitulis, quae de raptu virginum vel viduarum seu sanctimona-
lium sive [in] antiquis legum libris sive in sacris constitutionibus posita sunt, de cetero
abolitis, ut haec tantummodo lex in hoc capite pro omnibus sufficiat.’
26
NovJ 143 (= NovJ 150), 563.
27
Wal (1964), 47, fn 1; e.g. NovJ 22.15 and 117.15 on divorce; 115.3–4 and 117.8–9 on
disherison.
28
NovJ 12, 535; 139, no date; 154, no date.
29
NovJ 12.1–2.
164
into exile, after being flogged, if of humble status; the woman too is liable
if she knew the law.30 Those truly ignorant of what counted as incest are
merely deprived of their property, of which a quarter goes to the fisc and
three-quarters to any children.31 In spite of the preamble, although the tone
of this Novel is harsher, the ruling is not so different from earlier enact-
ments. Novel 139, addressed to the same Florus and undated, remits the
penalty for illicit marriage to certain inhabitants of Sinde (a village a couple
of miles from Tyre) and to the Jews of Tyre. They had not paid the fine of a
quarter of their property; nevertheless, he allows their entreaty that they be
allowed in their old age to retain their wives, and that their children should
be their legitimate heirs, but for this concession each must pay 10 lb of
gold. This lenient treatment is not, however, to set a precedent.32 The third,
also to Florus and undated, dealt with a shocking, but unspecified, rumour
about illicit marriages in the provinces of Osroene and Mesopotamia; it was
hard to believe that the inhabitants dared violate the laws of the Romans,
but they were rustics who had endured many invasions, therefore inquiries
into the past would not be made. But for the future anyone, whatever his
status, who contracted an illicit marriage was to be punished by the loss of
all his property and a portion of his body, and in specially serious cases by
death.33
There is quite a long Novel on pimps (lenones), addressed in 535 to the
citizens of Constantinople.34 This also dealt with prostitutes, showing some
sympathy for the girls caught up in the trade. The pimps were accustomed
to go round the provinces, luring the wretched girls with promises of slip-
pers and fine clothes, and then shutting them into brothels in the city; they
enticed even girls under ten years old in order to prostitute them. Justinian
urged women to prefer chastity to luxury; he wanted to protect both free-
born and slave. Any guarantees or promises they had given to the pimps
were henceforward invalidated. Pimps were to be flogged and expelled from
the city. The trade of prostitution was forbidden.35 Procopius tells us that
on one occasion more than 500 prostitutes in Constantinople were rounded
30
NovJ 12.3.
31
NovJ 12.4. This presumably refers to cases where there was an agnatic bar but no blood
tie.
32
NovJ 139. Were the Jews engaging in levirate marriages?
33
NovJ 154: ‘solitum et romanis legibus dignum ordinem [omnes] esse servituros’; Justi-
nian seems particularly concerned with the failure to observe traditional Roman law.
‘Cum non solum substantiae partem auferamus sed etiam totam substantiam et partem
corporis { . . . } forte etiam ipsam animam’: was castration the appropriate form of muti-
lation?
34
NovJ 14.
35
Cf. NovTh 18, of 439, which laid down that pimps were to be flogged and expelled the
city; prostitutes who were slaves were to be freed, and free women released from the
brothels. Earlier attempts to forbid prostitution in Rome had not met with success (SHA,
Tac. 10).
165
up and enclosed in a convent on the other side of the Bosphorus; he adds

that some of them threw themselves from the parapet at night, and so
escaped enforced virtue.36 A Novel of the following year, addressed to John
the Praetorian Prefect, was really a supplement, since it was concerned with
releasing actresses from any security they might have given to their
employers for the provision of sexual services. They could withdraw from
such immoral contracts without running any risk of perjury, a risk now
borne by anyone claiming the fulfilment of the contract. Any pimp making
such a claim was to be fined 10 lb of gold, as was anyone knowingly per-
mitting prostitution from his house; the fines were to go to the woman to
help her start a new and more moral life.37
Some months earlier a Novel was issued, addressed to John the Praetorian
Prefect, entitled ‘concerning the governor of Cappadocia’, but in fact deal-
ing with a number of matters, including the principles of punishment.
Harsh punishment was to be imposed for adulteries, ravishings, violences,
murders and other crimes, specifically as a deterrent, ‘for by the punishment
of a few, the remainder would be permanently restrained . . . This is not
inhumane, but rather true humaneness, since by the chastening of a few,
many are saved.’38
Some twenty years later, in 556, a Novel was issued, addressed to the
Urban Prefect, which dealt with a wide range of topics, disciplinary as
much as criminal; its rubric, in two of the versions, referred to adulterous
women, although this was hardly the dominant theme of the law. In one
chapter, on offences in general, it was laid down that governors were to
pursue the actual offenders and not others vicariously, nor were the inhabi-
tants of a district to be punished just because a crime had been committed
in that locality. Whole villages were not to be punished, but the actual
perpetrators should undergo the penalty of the laws; exile was to be the
penalty for unjust judges.39 The next few chapters were also concerned with
due procedure. Justinian strongly disapproved of prison for women, where
they might be exposed to the abuse of their gaolers. The law laid down
specifically that no woman was for any reason to be confined or held in a
public prison. If a woman was faced with a criminal charge which would
normally involve remand to prison, she could find security, or simply swear
that she would appear; if it was a really serious charge, she might be
required to live in a convent or under house-arrest under female supervision,
36
Procopius, Anec. 17.5–6.
37
NovJ 51. Any such oath by one of these actresses was ‘turpe et absurdum et ad perniciem
ducens’. Justinian again shows practical sympathy for fallen women in passing the fine
over to the victim.
38
NovJ 30.11pr: ‘utpote paucorum hominum supplicio omne quod reliquum est perpetue
temperetur, sitque cum lege castigator subtilis delinquentium. Non enim inhumanum est
hoc, maxima magis humanitas, dum paucorum correptione multum salvum est.’
39
NovJ 134.4.
166
but in the interests of chastity she was never to be put in the custody of
men, in a prison or elsewhere.40 While adultery was still a capital offence
(as it had been under Constantine), at least if it were repeated, the normal
penalty for an adulterous woman was to be confined in a convent. There was
a period of two years in which she could be reclaimed by her husband; if he
did not do so, whether by choice or as a result of his death, she must stay
there for life.41 This enactment implicitly abolished the liability of a hus-
band for lenocinium in the form of condonation, since it permitted him to
forgive his erring wife and continue the marriage. The final chapter of this
law dealt with the penalty of mutilation; we shall return to this.
Luxuria, which included homosexuality, and blasphemy were crimes
against nature, which, it was believed, could cause famine, earthquake and
plague, occasioned by the wrath of God.42 Those guilty of such crimes were
to incur the ultimate punishment. Procopius, in his Secret History, remarks
on Justinian’s zeal against homosexuals and pederasts.43 In 559 the people
of Constantinople were the recipients of another Novel on this topic. Here
Justinian began with a brief disquisition on repentance and forgiveness; the
emperor wished to see sinners, specifically male homosexuals, change their
way of life. However, for those who continued in this practice, there were to
be unspecified very harsh penalties,44 which, as we hear from Procopius,
might include castration.45 Linked in the legislator’s mind with homo-
sexuality was the practice of castration for sexual ends. Here the penalty was
talio, castration for the wrongdoer (unless, of course, female), along with
confiscation of property and perpetual exile; a castrated slave, even one
castrated for medical reasons, was to receive his liberty.46 Presumably the
eunuchs who had been a feature of palace life since the fourth century
should now have disappeared from the scene, but the ruling of Constantine,
more than two centuries earlier, that the making of eunuchs was a capital
offence, had clearly had no great effect.47 Leo had made the trade in eunuchs
illegal, except for those of barbarian race made so on barbarian soil.48
40
NovJ 134.9.
41
NovJ 134.10. Divorce, other than on authorized grounds (cf. NovJ 22.12), was also
penalized by lifelong confinement in a monastery (134.11–12).
42
NovJ 77.1.1; the undated Novel is addressed to the people of Constantinople.
43
Procop. Anec. 11.34–35; 19.11; 20.9. Accusations of sodomy or pederasty and heresy
were, according to Procopius, standard charges, rather as adultery and treason had been in
an earlier period.
44
NovJ 141.1.
45
Cf. Procopius, Anec. 11.36; 16.19–21.
46
NovJ 142, of 558, addressed to the comes rerum privatarum; cf. CJ 4.42
47
CJ 4.42.1, Constantine; cf. Hopkins (1963).
48
CJ 4.42.2, 457–65.
167
Punishment was another issue with which the emperor was concerned.
Alongside the concept of the death penalty as a deterrent,49 we find that the
notion of reform might affect the punishment; after all, homosexuals had
been given the opportunity to repent. In one of the various Novels addres-
sed to provincial governors, and commonly dealing in platitudes, the lan-
guage of cure is used for those guilty of violent offences. ‘Let torture be
applied to them by all means if they are irremediably sick, but if only
moderately, let punishment turn them to better things.’50 Novel 134, that
compendious statute, also required some restraint in the imposition of
punishments. Justinian abolished various corporal penalties, including the
amputation of both hands, or of a foot, and the disarticulation (dislocation?)
of the joints.51 His explanation, that this was ‘to protect human weakness’,
was probably aimed at leaving the criminal able to earn his living, rather
than a recognition of humanity’s moral weakness.52 On the margins of the
criminal law were Justinian’s Novels repressing pagans, Jews and heretics.53
In general he imposed no corporal penalties on them, but severely limited
their patrimonial rights – harsh enough, but at least not bloody.
Justinian’s Code and the Theodosian Code

The above is all there was in the way of Justinian’s own legislation in the
field of penal law. There is remarkably little of it for a reform-minded
emperor54 who reigned for nearly forty years, which confirms the view that
Justinian, at least after AD 534, saw the Corpus as expressing his legislative
views. But before turning to the Digest, it is illuminating to compare Jus-
tinian’s Code with the Theodosian. To start with, there was a significant
difference between the principles on which they were compiled. Theodosius
ordered the collection of all general legislation since the reign of Con-
stantine, whether in force or not,55 whereas Justinian told his compilers to
select only those laws that were still operative, to cut out the superfluous
49
NovJ 30.11pr, already cited.
50
NovJ 25.2.2, 535: ‘et violentos si quidem inmedicabiliter aegrotant, etiam omnino tor-
queat; si vero mediocriter ad meliora convertat.’
51
NovJ 134.13. When the Empress Theodora put to the torture two young members of the
faction supporting the Green team in the Circus races in her pursuit of John the Cappa-
docian, she finished by having their right hands cut off (Procopius, Anec. 17.44).
52
Manfredini (1995).
53
NovJ 45; 109; 129; 132; 144; 146. Cf. Procopius, Anec. 11.21–33; 19.11; 28.16–19.
54
Procopius, e.g. Anec. 14.1–10, saw him as always innovating, changing things for the
sake of change. In the area of family law and succession he was a radical, in effect abol-
ishing the agnatic family in Novel 118 of AD 543, supplemented by Novel 127 of 548. It
is true, however, as Alan Watson points out, that he made virtually no changes to the law
of property or obligations. This may well be because there is a definitely Christian angle
to the legal treatment of the family.
55
CTh 1.1.5, 429.
168
and the obsolete, and to correct where necessary.56 Other differences are that
Justinian’s Code includes not only general legislation but also rescripts,
which were the emperors’ responses to individual problems submitted to
them by officials or even private citizens, and that it includes imperial
enactments which go back to the time of Hadrian, and so come from the
period of classical law, and from the pagan world. This was because Justi-
nian told his compilers to take material from the Gregorian and the Her-
mogenianic as well as the Theodosian Codes; the former were collections of
imperial legislation made under Diocletian (284–305).57 Justinian’s Code is
rather more systematic than the Theodosian, although both, logically
enough, deal with procedural matters, particularly accusation and arrest, at
the start of Book 9, and with trial and sentence at the end. But as well as
the formal crimes, the crimes of the ordo, Justinian devotes titles to the
crimes outside the ordo, mostly lesser crimes or even delicts, such as the
crimenexpilatae hereditatis, rapina, stellionatus and de iniuriis.58
Where Justinian did take the constitutions of the Theodosian Code into
his Code, this was frequently without changing them; if a change were
made, it was always towards the less rhetorical, the less threatening, the less
savage. The one change in the opposite direction was introduced not into
the new Code but the Institutes, his elementary textbook. The penalty for
parricide, as we saw in chapter 2, was to be sewn into a sack and thrown
into running water. Other forms of death penalty seem to have been current
in the Principate, but for Constantine the sack was to be the sole punish-
ment for the murder of a parent.59 Snakes might be included in the sack,
and perhaps an ape; in the Institutes we find a dog and a cock as well.60 My
guess, however, is that the disproportionate treatment given to the penalty
of this crime in the Institutes was designed to entertain the students, to liven
up the final lecture, since in the Code it is the simpler version which is preserved.
In his Code Justinian omitted Constantine’s wild address to the pro-
vincials, imploring them to accuse corrupt officials,61 although he preserved
a rather similar one from Valentinian.62 He did not preserve the penalty of
56
c. Haec quae necessario, the law ordering the making of the Code, regularly printed as a
preface to it. Sometimes the state of the law was left problematic, as we saw with CJ
9.5.1 and 2, on the penalties for keeping private prisons. Two editions of the Code were
published, in 529 (by the law Summa) and 534 (by Cordi), but there is no reason to think
they were compiled on different principles, although the arrangement of the titles may
have differed.
57
See Corcoran (1996), 25–42; we are in agreement that they were official compilations.
58
CJ 9.32–35.
59
CTh 9.15.1, 318; cf. CJ 9.17.1. Yet consider the unemotional tone of CJ 9.1.14, 294.
60
Inst. 4.18.6, as we do in D 48.9.9, Mod. 12 pand. Perhaps it should be added that Jus-
tinian’s Institutes in including a final title de iudiciis publicis, on criminal courts, did not
follow their chief model, Gaius.
61
CTh 9.1.4.
62
CTh 9.27.6 = CJ 9.27.4, and also CTh 9.14.2 = CJ 3.27.1, on marauding soldiers.
169
the sack for adulterers, simply the sword,63 but he did keep Constantine’s
hysterical denunciation of homosexual practices.64 He continued to make
corruption by senior officials capital, but without the rhetoric.65 Sometimes
Justinian simply preserved a reasonable generalization from a longer, more
rhetorical law: ‘Guarding, with knowledge of the crime, the spoils of one
who took by force, is a crime akin to taking by force’.66 He also preserved
an extraordinarily ambiguous law of Theodosius I:
If any person, insensible to decency and ignorant of propriety,

should think fit to assail our Name with wicked and impudent
abuse, and thus riotous with drunkenness he disparage Our times,
we do not wish him to be subjected to punishment or to sustain
any harsh or severe treatment, since, if such conduct proceed from
levity it must be treated with contempt, if from insanity it is most
worthy of pity, if from a desire to injure it should be pardoned.
Wherefore the case shall be referred to Our knowledge with all its
details unchanged, so that We may consider the words on the basis
of the character of the man, and that We may decide whether the
offence should be overlooked or duly prosecuted.67
Justinian may of course have been motivated by humanitas here, but it is

hard to believe this of the original authors of the law. Of some forty-
four rhetorically heightened texts in the Theodosian Code, Justinian omit-
ted eleven, and preserved the sense but diminished the colouring in
eight; he modified the substance of eight, but let the colour remain, while
sixteen texts were unchanged.68 Rhetoric had its place in revealing the
importance and the power of the emperor, but Justinian made less use of it
than had Theodosius and his predecessors; he sounds less desperate to
have his commands obeyed. Perhaps his diminished empire was some-
what easier to govern than had been the old empire, before the barbarian
settlements.
Justinian’s own legislation was for the most part rational in tone and
enforceable. Whether or not influenced by all their reading of the classical
jurists, who very rarely heightened their language, the compilers’ preference
was normally for the practical. The raucous phase of Roman criminal legis-
lation was just a phase, quite a long phase but now largely over. Of the
63
CTh 11.36.4 (burning alive was the alternative; cf. CJ 9.9.29).
64
CTh 9.7.3, = CJ 9.9.30. On the other hand he omitted the more rational CTh 9.7.6, 390.
65
CTh 9.28.1, 392; cf. CJ 9.28.1, 415.
66
CTh 9.28.2, 415; cf. CJ 9.12.9: ‘crimen non dissimile est rapere et ei qui rapuerit scien-
tem delictum servare.’
67
CTh 9.4.1 (9-8-393) = CJ 9.7.1.
68
Robinson (2000).
170
three principal topics rhetorically treated in the Theodosian Code, magic,

sex and corruption, Justinian omitted several of the Theodosian texts
banning astrology and divination, but left others as they stood.69 He did
not legislate himself in this area. He continued to be concerned with cor-
ruption, and even more with sexual wrongdoing, but more quietly.
In post-Theodosian legislation incorporated into Justinian’s Code there is
very little rhetoric.70 In fact, in Book 9 there are only seven such texts.71
We have discussed Zeno’s regulation of private prisons. The earliest of the
group is an enactment of Theodosius and Valentinian requiring the pro-
motion of the most suitable officials, and laying down that these should
take an oath that they had in the past never connived at wrongdoing and
would in the future take nothing but their salary; accusations of taking or
giving bribes were open to anyone, not restricted by the curbs on informers,
and there was a fourfold penalty for anything extorted improperly.72 Mar-
cian legislated against those who sheltered brigands or other criminals, with
the threat of calumny for wrongful accusers.73 Leo forbade popular clamour
to be raised against individuals; such demands were to be ignored, and
punished.74 Leo, with Anthemius, also legislated against the bucellarii and
other bands of armed retainers employed by many of the potentes, the greater
landowners, who often also held official position. The penalties were severe
for those who neglected to enforce this ban on armed followers; governors
were to lose their rank, and perhaps their life, as well as being fined 100 lb
of gold, while their senior office staff were to suffer capital punishment with
confiscation.75 Zeno required those bringing actions of criminal assault or
outrage to use solemn procedure and to appear in person, unless they were
of the highest rank.76 Under Justin, and therefore perhaps on Justinian’s
initiative, it was laid down that interference with funerals, on the grounds
that the deceased was a debtor, was ‘contrary to the spirit of our times’. The
consequence was to be the invalidation of any security extorted, and also
69
CTh 9.16; cf. CJ 9.18.
70
Though the last sentence of CJ 9.39.2, 451, is somewhat moralising: ‘exemplo autem
grave est sic latronem requirere ut innocentibus periculum fiat’ (for it does set a shocking
example to pursue a brigand in such a way that innocent persons are put at risk).
71
There are also two other insertions, a text ascribed to the jurist Paul (CJ 9.8.6), and an
undated quotation from the Basilica (CJ 9.49.11). Justinian’s compilers made use of
Theodosius’ Novels, his legislation subsequent to 438, but not, it seems of the collections
of Novels of later emperors, or not as they have survived to us.
72
CJ 9.27.6, 439.
73
CJ 9.39.2, 451.
74
CJ 9.30.2, March, 466. This might be linked to the protests which followed the great fire
of Constantinople in September 465, after which Leo withdrew to the Golden Horn for
six months.
75
CJ 9.12.10, 468.
76
CJ 9.35.11, 478.
171
serious punishment, a fine of 50 lb of gold, or corporal suffering for an

offender unable to pay. Urban magistrates or provincial governors were
liable to heavy penalties for failure to enforce this law.77 These laws are all
both clear and (theoretically) enforceable.
Justinian was much concerned with (largely pragmatic) attempts to
improve criminal procedure.78 Constantine had ruled that the chains of
accused persons in custody should not be too heavy, but Justinian added to
the version of this law as preserved in his Code, ‘if indeed the nature of the
charge demands the severity of chains’,79 and, as we have seen, his own
legislation was generally cool and rational. He omitted the more dramatic
constitutions aimed at slaves or freedmen who accuse their owners or
patrons.80 He was more flexible about the time limits, giving the accused at
least thirty days, rather than a maximum of thirty days, to put their affairs
in order.81 With at least one law, confirming the privilege against torture of
chief decurions, Justinian’s version made this apply to all decurions.82 One
difference between Theodosius and Justinian seems to be that the latter was
more careful to preserve the rule of law, and especially the privileges of the
upper ranks of society.83 His Novels show that the attempt to improve
criminal process was close to Justinian’s heart.
Punishment in Roman law is the topic of the last chapter, but while we
are dealing with Justinian’s own legislation we should consider his attitude
to penalties. We can be reasonably certain that the punishments laid down
in the Corpus were approved by Justinian, or they would not have been
preserved.84 There may well be a difference here between the Corpus –
Digest, Institutes and Code – and the Novels. The Corpus was a code, with
all the disparate contents backed by the authority of the emperor, and to be
taken as it stood; commentaries were prohibited, and interpretation was a
matter for the emperor.85 It was something finished, complete. The Novels
were current legislation; we can observe Justinian changing his mind on
some points,86 refining his thoughts on others.87 While undoubtedly law to
be observed, no one Novel represented the imperial mind as the Corpus did,
and the Novels were never collected in Justinian’s lifetime. Nor, as we have
77
CJ 9.19.6, 526.
78
Cf. CTh 9.37.1 with CJ 9.42.2.
79
CTh 9.3.1; cf. CJ 9.4.1.
80
CTh 9.6.1 and 2.
81
CTh 9.2.3; cf. CJ 9.3.2.
82
CTh 9.35.6; cf. CJ 9.41.17.
83
Although Procopius reports the flogging of men of noble family (Anec. 15.22).
84
C. Tanta pr: ‘Moreover, our majesty, ever investigating and scrutinizing what [the com-
pilers] were drafting, amended, in reliance on the Heavenly Divinity, anything that was
found to be dubious or uncertain, and reduced it to a proper form.’
85
c. Tanta ss. 18–21; c. Dedoken 19–21.
86
E.g. NovJ 111, abrogating NovJ 9.
87
NovJ 51, building on NovJ 14.
172
seen, was Justinian, although a radical in some respects,88 much concerned

to legislate on the criminal law other than in the sexual sphere, and on
procedure.
What changes did Justinian make? We have seen that lifelong enclosure
in a convent might replace the death penalty.89 Castration, an illegal act,
was punished by castration as, seemingly, was entering into an incestuous
marriage.90 Mutilation, specifically the amputation of the limbs, was regu-
lated, to the end that the convict might still support himself, and perhaps
his family.91 Death by impalement is not recorded in the legal, only the
literary, sources, but it was ordered by Theodora, if not by Justinian him-
self.92 Penal slavery, that is, the status of slavery without an owner – the
slave being seen as slave to the punishment – which was a concomitant of
condemnation to the mines, was abolished for the freeborn; however, this
was not necessarily for what we would describe as humanitarian motives,
but rather to preserve marriages.93 (Penal slavery was also the status of
someone in the interval between a capital sentence and execution; this was
probably not affected.) These are the innovations in Justinian’s legislation
about penalties, and they occur in the Novels. As remarked above, the
Novels were still fluid; they did not represent the imperial mind to the
same extent as did the Corpus Iuris.
Much, of course, remained the same, confirmed by Justinian. Slaves con-
tinued to be subject to torture, even in civil matters, where a crime was
only a possibility, or where an accusation of adultery might follow,94 but
this went back to Antoninus Pius.95 The texts are ambiguous on the possi-
bility of torturing a free man in a pecuniary matter, but these texts were not
placed in Book 9;96 the very late jurist Arcadius Charisius permits the
88
Unfavourably, Procopius, Anec. 6.21; 11.1–2. Already referred to is Justinian’s abolition
of the agnatic family, the base of the classical Roman law of family and succession (NovJ
118, 543, and 127, 548).
89
NovJ 134.11–12.
90
NovJ 142; 154.
91
NovJ 134.13; cf. Manfredini (1995). Other legislation included NovJ 128.20, 545,
giving a governor’s deputy full powers, except to order the death penalty or the amputa-
tion of a hand; cf. NovJ 42.2.2, 536, with amputation of a hand for writing out heretical
opinions.
92
Procop. Anec. 17.3; 27.19; Averil Cameron in CAH XIV, 84, citing Malalas de insid.
concerning the Greens in AD 564. (‘rjokopifx’ is the Greek verb.) Seneca had referred
to something of the sort (Marc. de consol. 20.3: ‘alii per obscena stipitem egerunt’), along
with upside-down crucifixion.
93
NovJ 22.8. A marriage would be invalidated by the enslavement of one spouse; the wider
benefit was incidental.
94
CJ 9.41.18, 529; 9.9.35, 532.
95
D 48.18.9pr, Marcian 2 de iud. pub.
96
The term ‘debitum’ in CJ 9.41.16, 376, almost certainly means ‘offence’ (as in ‘dimitte
nobis debita nostra’ that is, ‘forgive us our trespasses’, in the Lord’s Prayer).
173
torture in this context of someone who has fought in the arena, or of a

person of similar status.97 The penalties imposed on those who escaped from
their place of exile, or who stirred up trouble there, were no harsher than
before, and probably necessary.98 Fines seem sometimes preferred to physical
penalties.99 Examples of Justinian’s milder tendencies are more numerous in
the contrasts between the two codes, Theodosian and Justinianic – although
this is by no means to claim he was soft on crime. However, a study of the
term humanitas under Justinian – a term used by the emperor of himself, as
opposed to benignitas, which is used of him by his subordinates – finds no
instances pertaining to the criminal law.100 Perhaps his penal policy was
milder than his penal practice.
Justinian and the jurists

As well as the Code(s), and of course the Institutes, the other component of
Justinian’s Corpus was the Digest. The contents of the Digest were not
compiled from legislation but, once compiled, the Digest was legislation; it
had full statutory force: ‘whatever has been written there should appear as
our own work and composed by our will’.101 This means that we must take
seriously, as valid imperial legislation, the writings of the jurists preserved
in the Digest. Moreover, the principles developed by the jurists in such
areas as the constitutive need for intention and an actus reus,102 diminished
responsibility,103 defences such as self-defence104 or superior orders,105
complicity,106 and attempts,107 were thus incorporated into imperial law.108
Some matters are mostly taken for granted as part of Roman due process;
these include the ban on condemning the absent, the right of an accused to
make a defence, and to be given fair warning, and the impropriety of
97
D 22.5.21.5, Arc. Char. lib. sing. de testibus.
98
CJ 9.47.26, 529; cf. Hadrian’s rulings (D 48.19.28.13–14, cited by Call. 6 de cogn.).
99
CJ 9.19.6, 526.
100
Wubbe (1990).
101
c. Tanta s.10; cf. CJ 1.14.12.5, 529.
102
D 48.4.3, Marcian 14 inst; cf. 50.16.53.2, Paul 59 ad ed.
103
Women could be forgiven ignorance of the law (D 48.10.15.5, Call. 1 quaest.).
104
But there was a doctrine of minimum force (D 48.8.9, Ulpian 37 ad ed.; 9.2.45.4, Paul
10 ad Sab.).
105
For example, D 48.10.5, Julian 86 dig.
106
For example, D 48.9.2, Scaevola 4 reg, or 48.9.7, Ulpian 29 ad ed.
107
It was a capital offence for a soldier to attempt to desert to the enemy (D 49.16.3.11,
Modestinus 4 de poenis).
108
See Giuffre (1998); still, Gioffredi (1970); also Robinson (1995) 15–22. I am also
grateful to my PhD student, Monika Carlin, for discussion on ‘principles’ arising out of
her work.
174
forcing somebody to take action against his will.109 Other questions have to
be read into rather than drawn directly from the texts; these include such
issues as the presumption of innocence, the burden of proof, and the stan-
dard of proof required. We have remarked concerns such as these in context
in the earlier chapters. The jurists’ casuistic approach had the happy result
that their arguments could be developed and refined by later generations
working from the Corpus Iuris Civilis in very different circumstances.
In view of the deliberate juxtaposition of Books 47 and 48 of the Digest,
it is not surprising that juristic discussion of the issues of liability affecting
criminal law has been preserved in both Books, although some other perti-
nent texts are to be found in Book 1, in the titles concerned with the duties
of various officials, including provincial governors. It is evident that both
knowledge and intention were required for the commission of most crimes,
but this was never expressed as a general principle. Instead, one text
remarks that someone taken with stolen goods may be a manifest thief, but
if he did not know them to be stolen, he is neither a thief nor a manifest
thief;110 again, if someone drove my jackass in among his mares when they
were in season, he is not liable for theft unless he had the intention to
steal.111 Even in cases of alleged treason, knowledge and intention were
both required for guilt in cases where the constitutive facts might be
unclear; for example, it was treason if a private citizen ‘knowingly and
dolosely’ behaved as though he were a magistrate.112 When a judge was
considering a charge of treason, he must take into account the nature of the
person accused: could he have done it? Had he done or devised anything
treasonable before? Was he in his right mind?113 Marcian put it another
way when, in the context of the due measure of punishment, he wrote that a
wrong is done intentionally or rashly or accidentally. A band of brigands do
deliberate wrong; someone drawing his sword when drunk is acting
wrongfully but without full intention; it is accidental when in a hunt a
spear thrown at a wild animal hits a man.114 Punishment might still be
due, even when there was no dolus, because of the need, in the public
interest, for care with dangerous materials, but it could be milder, as, for
example, the relegation of the woman who gave a medicinal potion that was
109
Examples are: D 48.19.5pr, Ulpian 7 de off. procons, citing Trajan; the trial of Christ (e.g.
Mark 15.2–5; D 48.18.18.9, Paul 5 sent; ACM, Pion. 16.6).
110
D 47.2.35, Pomp. 19 ad Sab.
111
D 47.2.52.20, Ulp. 37 ad ed.: ‘furti non tenetur nisi furandi quoque animum habuit’; see
also 41.3.37pr, Gaius 2 inst.; cf. 2.1.7.4, Ulpian 3 ad ed.
112
D 48.4.3, Marcian 14 inst: ‘quive, privatus, pro potestate magistratuve quid sciens dolo
malo gesserit.’ This would have applied to Piso, for example, once he had left his
province.
113
D 48.4.7.3, Mod. 12 pand; a slip of the tongue might be pardonable.
114
D 48.19.11.2, Marcian 2 de pub.iud.
175
fatal to the patient.115 Outcome was thus sometimes the deciding factor,
but it could be said that in wrongdoing consideration was normally to be
given to the intention, as Hadrian laid down in a rescript.116 Interestingly,
there is one, but only one, Digest text where those of high status are pun-
ished more severely than plebeians, and this is based on motivation; honest-
iores are clearly the ones who commit the crime of moving boundary stones
in order to enlarge their own property, whereas humiliores might be appro-
priating the stones through ignorance or lack of thought.117
There was clearly no discussion to be found in the jurists’ writings of the
principle – as opposed to instances – of the lack of liability of those under
puberty; instead, information on the topic must be drawn from various
places. Infants were not liable under the lex Cornelia de sicariis because of
their incapacity to harm, whereas lunatics were not liable because of their
illness.118 Those under puberty were not liable for violation of sepulture
because they were normally not capable of dolus,119 and the same explana-
tion applied to the forgery of wills.120 In certain circumstances, however,
where they had sufficient understanding, children could be liable for their
misdeeds, as when a girl still under 12, who had formally been married
although under the lawful age, committed adultery; the legal point was that
the man could only prosecute her as his fiancée, not by a husband’s right.121
115
D 48.8.3.2, Marcian 14 inst: ‘relegari iussa est ea quae non quidem malo animo sed malo
exemplo medicamentum ad conceptionem dedit.’ Cf., for Aquilian liability, 9.2.7.6 and
9.2.9, Ulp. 18 ad ed., but Ulpian could also say that it was irrelevant whether someone
killed or furnished the cause of death (48.8.15, Ulp. 8 ad l. Iuliam et Papiam).
116
D 48.8.14, Call. 6 de cogn: ‘Divus Hadrianus in haec verba rescripsit: in maleficiis
voluntas spectatur, non exitus.’ Cf. 48.8.1.3, Marcian 14 inst. If somebody kills someone
after drawing his sword there is a presumption of intention to kill, but if he struck
someone with a key or a saucepan in the course of a brawl it would appear to be
unpremeditated. Also Coll. 1.6, Ulpian, 7 de off. procons., citing Hadrian.
117
D 47.21.2, Call. 3 de cogn., or Coll. 13.3, Ulp. 8 de off procons; both are citing a rescript of
Hadrian. A landowner was relegated; a servant, obeying orders, might receive a sentence
of two years’ forced labour, while if the deed were done carelessly by some poor man, a
beating sufficed.
118
D 48.8.12, Mod. 8 reg: ‘Infans vel furiosus si hominem occiderint lege Cornelia non
tenentur, cum alterum innocentia consilii tuetur, alterum fati infelicitas excusat.’ Cf.
1.18.14.2, Macer, 2 de iud. pub.on the lunatic who killed his mother being punished by
his insanity, but needing to be restrained to prevent further harm.
119
D 47.12.3.1, Ulpian, 25 ad ed: ‘personae igitur doli non capaces ut admodum impu-
beres’.
120
D 48.10.22pr, Paul, adSC Libonianum: ‘Impuberem in hoc edictum incidere dicendum
non est quoniam falsi crimine vix possit teneri cum dolus malus in eam aetatem non
cadit.’
121
D 48.5.14.8, Ulp. 2 de adulteris: ‘Si minor duodecim annis in domum deducta adulter-
ium commiserit, mox apud eum aetatem excesserit coeperitque esse uxor non poterit iure
viri accusari ex eo adulterio quod ante aetatem nupta commisit, sed quasi sponsa poterit
accusari ex rescripto divi Severi.’ No word here of any defence she may have.
176
More humanely, in the context of theft, liability depended on whether the

child had sufficient understanding that it was doing wrong; infants, those
under seven, by definition lacked such understanding.122 A statement of
principle was finally rather clumsily produced by Alexander Severus:
‘Freedom from punishment for crimes is not granted on account of age,
provided, that is, that someone is of sufficient age for the charge to be
competent.’123 Further juristic writing on punishment will be considered in
the next chapter, in the overall context of crime and punishment.
System in weighing the gravity of a particular crime was, however, to be
found in the famous text from Claudius Saturninus:
There are punishments for things done, such as thefts and killings,
or for things said, such as insults or false pleadings, or for things
written, such as forgeries and libels, or for things counselled, such
as conspiracies and the guilty knowledge of robbers; and the scale
of the crime is the same for those who aid others by advice [as for
the principal]. These four categories, however, must be considered
in seven aspects: the motive, the person, the place, the time, the
quality, the quantity, and the outcome. The motive: for example,
flogging, which goes unpunished if administered by a magistrate or
parent, because it is inflicted for the purpose of correction not for
the sake of insult; but is punished when someone has been beaten
in anger by an outsider. The person is looked at in two ways: the
person who did and the person who suffered the act; for slaves and
free men are punished differently for the same crimes, and differ-
ently too someone who dares to wrong an owner or parent as
opposed to an outsider, or a magistrate as opposed to a private
person. In considering the person, regard must also be had to age.
Place affects whether the same act is defined as theft or sacrilege,
and whether it calls for capital punishment or some lesser penalty.
Time distinguishes someone who absents himself without leave
from a deserter, and a housebreaker or daytime thief from a thief by
night. Quality is when the act is either more or less grave, as
manifest thefts are customarily distinguished from those which are
non-manifest, brawls from highway robbery, plundering from theft,
impudence from violence. . . . Quantity distinguishes a thief from a
rustler, for the man who steals a single pig will be punished as a
thief, he who steals a herd as a rustler. The outcome is to be con-
sidered, however inoffensive the doer – although the law punishes
122
D 47.2.23, Ulp. 41 ad Sab. However, the danger of taking childish lies for truth was also
recognized (48.18.15.1, Call. 5 de cogn.).
123
CJ 9.47.7, Alexander Severus.
177
the man who is in possession of a weapon for the purpose of

homicide no less than one who kills.124
And the jurist adds that some crimes are punished more severely in certain
provinces, and that penalties may be made tougher to meet a particular
problem, as when there is a serious outbreak of brigandage.
Considering from what a range of various writings these juristic remarks
were drawn, many of them dealing originally with matters of private law, it
is clear that the compilers, and therefore Justinian, were concerned to
maintain a link between moral wrongdoing and criminal liability. Because
the jurists had had a casuistic rather than dogmatic approach, the compilers
had to provide principles in this indirect way, but we can be sure from the
very fact of compilation that these principles were intended to illustrate and
exemplify the Emperor’s considered views.
124
D 48.19.16, Saturninus, de poenis paganorum: ‘Aut facta puniuntur, ut furta caedesque, aut
dicta, ut convicia et infidae advocationes, aut scripta, ut falsa et famosi libelli, aut con-
silia, ut coniurationes et latronum conscientia quosque alios suadendo iuvisse sceleris est
instar. 1. Sed haec quattuor genera consideranda sunt septem modis: [NB the philoso-
phical terms] causa, persona, loco, tempore, qualitate, quantitate, eventu. 2. Causa: ut in
verberibus quae impunita sunt a magistro illata vel parente, quoniam emendationis non
iniuriae gratia videntur adhiberi; puniuntur cum quis per iram ab extraneo pulsatus est.
3. Persona dupliciter spectatur, eius qui fecit et eius qui passus est; aliter enim puniun-
tur ex isdem facinoribus servi quam liberi, et aliter qui quid in dominum partentemve
ausus est quam qui in extraneum, in magistratum vel in privatum. In eius rei con-
sideratione aetatis quoque ratio habeatur. 4. Locus facit ut idem vel furtum vel sacrile-
gium sit et capite luendum vel minore supplicio. 5. Tempus discernit emansorem a
fugitivo et effractorem vel furem diurnum a nocturno. 6. Qualitate, cum factum vel
atrocius vel levius est; ut furta manifesta a nec manifestis discerni solent, rixae a grass-
aturis, expilationes a furtis, petulantia a violentia. [A quotation from Demosthenes fol-
lows.] 7. Quantitas discernit furem ab abigeo, nam qui unum suem subripuerit ut fur
coercebitur, qui gregem ut abigeus. 8. Eventus spectetur, ut a clementissimo quoquo
facta, quamquam lex non minus eum qui occidendi hominis causa cum telo fuerit quam
eum qui occiderit puniat. et ideo apud Graecos exilio voluntario fortuiti casus
luebantur . . . 9. Evenit ut eadem scelera in quibusdam provinciis gravius plectantur, ut
in Africa messium incensores, in Mysia vitium, ubi metalla sunt adulteratores monetae.
10. Nonnumquam evenit ut aliquorum maleficiorum supplicia exacerbentur, quotiens
nimium multis personis grassantibus exemplo opus sit.’
178
Chapter 8
CRIME AND PUNISHMENT
The Romans said very little explicitly about their attitudes to crime and its
punishment. The chief information comes from philosophers – influenced of
course by the Greeks – rather than jurists, from Cicero (b. 106 BC) and
Seneca (d. AD 65). Their working lives cover roughly a century and a half, in
which Roman society made the major shift from Republic to Empire; poli-
tical realities changed drastically, but cultural assumptions do not seem to
have altered significantly. Cicero, and his views were well known to and
respected by Seneca and Quintilian, Tacitus and Pliny. The jurists’ views,
implicit rather than express, fit reasonably well with these models, although
with a distinctly more practical slant.1
But the lack of any discipline of criminology, any serious attempt to
apply undeveloped concepts to the actual administration of criminal justice,
explains why the stories in this book have been told at length. We have
been trying to see what the Romans actually did, in order that we, rather
than they, can infer any principles. The treatment of the Bacchanalian con-
spirators, if such they were, as described by Livy does not fit even with the
views of Polybius, less than half a century later, let alone with any philo-
sophical theories or respect for the rule of law. The rule of law is, however,
visible in the trials of Roscius, Piso, and the various governors accused
under Trajan. In the trials of the Christians in the later third century and
the early fourth, our sources see themselves as under attack from blood-
stained monsters, but where the facts come through it does seem that the
rule of law was generally observed. It may be worth remarking that in no
society is the rule of law always observed; politics, venality and blind
ignorance inevitably pervert a proportion of cases, even in the best of legal
systems.
The later fourth century is harder to interpret. Was Valens’ situation so
very different from that of Tiberius? It would be foolish to deny that in
both periods there were genuine plots against the emperor; the atmosphere
at court may not have been so different. But Tiberius ruled a tranquil
1
E.g. Ulpian’s remark about many in fact dying under torture (D 48.19.8.3).
179
empire, secure in Roman dominance of the known world; Varus’ defeat was
an aberration. Valens had known the defeat and death of an emperor, that of
his cousin Julian in 363, and his own death in the disaster of Adrianople in
378 was soon to follow the trials recorded. A plot against an emperor in the
fourth century might risk the fall of Roman civilisation; I doubt if Tiberius
saw his own safety in quite such a dramatic light. Further, our efforts to
find whether the rule of law was observed in this era are hampered by the
fashion for high rhetoric, a rhetoric designed to advertise the user’s author-
ity and intellectual stature. Ammianus and the Theodosian Code would be
so much easier to interpret had they used plain language. The use of
rhetoric had somewhat diminished in Justinian’s day, and his legal views,
laying down a legal culture, were built into the Corpus. Krause seems to be
right in seeing the whole imperial period as a time of fundamental law-
abidingness, of an acceptance that the law applied to all – if in different
ways – and, even if it was harsh, was for the overall good of all – as with the
Good Thief remarking ‘for we are rightly condemned for our misdeeds’.2
We shall look first at what we have in the way of theory, and then return
to the practice, before trying to state some conclusions.
The philosophy of punishment

The Romans, of course, never had a problem about the basic morality of
state violence, because they accepted domestic violence as justified – it was
part of mos maiorum – even if they came to regulate it.3 They were conscious
that the balance between humanitas (humaneness) and what was necessary for
public safety was – as it still is – always shifting. An example of this bal-
ance, one familiar to us, was the treatment of homicidal lunatics; they were
regarded as punished by their insanity, but for public safety they must be
kept under restraint to prevent them from committing further killings.4
Similarly there was intellectual conflict between the supporters of the poena
legis, the fixed statutory penalty,5 and those who wished to make the pun-
ishment fit the circumstances.6 Cicero was clear that justice required iden-
tical penalties for identical crimes, but then there was no mechanism for
2
Krause (2004), summarised at 202–05; Luke 23.39–41.
3
Censorial disapproval might control the exercise of patria potestas, and even power over
slaves. Some legal limits came to be imposed on private owners about killing their own
slaves (G 1.53; later, CTh 9.12.1, 319; cf. CJ 9.14.1). There were also restrictions on
family jurisdiction: CTh 9.13.1, 365 (= CJ 9.15.1). In D 48.19.6.1, Ulpian records doubts
about the governor’s power to punish his own slaves – or perhaps family members – or
those of his staff.
4
D 1.18.13.1, Ulpian, citing Antoninus Pius, and 1.18.14, Macer, citing Marcus Aurelius.
5
Always imposed in the Republic, supported by the Stoics in the Principate; e.g. Lepidus
on Clutorius Priscus (Tacitus Ann. 3.50.4) or Thrasea Paetus on Antistius Sosianus (Ann.
14.48.4).
6
XII T 8.10 and 14; Seneca, ira 1.19.5–7.
180
adjustment in his day.7 In the Empire a gradation of penalties was soon

accepted.8
There was fairly widespread agreement among philosophers, and those
who acted under the influence of philosophy, that the prime purpose of
punishment was deterrence, linked with the public safety achieved by the
removal of the criminal from society.9 Aulus Gellius, writing under Antoninus
Pius, quoted the Greek philosophers in giving three reasons for the punishment
of crimes, of which the first was correction and reformation. The second was
to maintain the dignity and esteem of the victim, in other words, a version
of the maintenance of social stability. The third was deterrence, the pre-
vention of further crimes by other persons, which might call for very harsh
penalties as examples to those who might be tempted. If none of these rea-
sons was appropriate, then neither was punishment. Plato had ignored the
second reason, and saw the role of punishment as either for the sake of cor-
rection or to inspire fear.10 The theory of retaliation (talio) in the full sense
as a just form of vengeance was exploded by the philosopher Favorinus in the
earlier second century, not only on the grounds of the difficulty of exactly
matching the injury done, but also because of the complete impossibility of
equalling the intention that caused the wrong.11 Nevertheless some attempt
to make the punishment fit the crime satisfied the instinct for retribution.
Gellius shared an intellectual tradition with Cicero and Seneca, Tacitus
and Pliny, and indeed with the jurists, whose education will undoubtedly
have included an acquaintance with philosophy as well as oratory. Rewards
were relevant as well as punishments to encourage virtue.12 Tertullian,
Ammianus and Augustine all drew on the same tradition, even if it was
angled somewhat differently for them. It is hard to know how far Tribonian
shared their culture, but he does seem to have had the usual Latin rhetorical
education of his day.13
Cicero made abstract statements in favour of clemency, but only where it
did not affect the stability of the state,14 and stronger ones against forms of
7
Cicero, Clu. 46.128–29; he was speaking in contrast to the representative nature of deci-
mation in military law.
8
E.g. D 48.19.5.2, Ulpian citing Trajan: ‘In all charges this distinction [between the
dolose and the accidental] must call forth the penalty of the law or allow mitigation.’ See
also the discussion of the role of the emperors in developing penalties.
9
E.g. Seneca, ira 3.19.2; Ps. Quint. Decl. min. 274, obiter on brigands crucified beside the
road.
10
Gellius, 7.14.
11
Gellius, 20.1.14–18. Cf. Shakespeare’s The Merchant of Venice, and the problems of exact-
ing the due pound of flesh.
12
Polybius 6.14.4; Cicero, de orat. 1.43.194; inv. 1.11.14; 2.36.109; Quint. inst.or. 7.4.3. A
jurist too might write that the laws desired to make men good not only through fear of
punishment but also by the encouragement of rewards (D 1.1.1.1, Ulpian).
13
Honoré (1978), 43.
14
See especially Bauman (1996), 35–49.
181
punishment which, while the punishment itself was necessary, were such as
to affront the dignity of the guilty party (contumelia). This call to avoid
adding humiliation to punishment, at least among the upper ranks of
society, was, as we have seen, a widespread view among our (upper-rank)
sources. Tacitus located it in the free choice of death (liberum mortis arbi-
trium),15 something that came to be seen by the jurists as an imperially
granted privilege.16 Pliny had seen the most painful feature of successful
prosecutions as the downfall of a senator.17 Unjustified humiliation was the
gravamen of Ammianus’ grievance against Constantius and Valens. On the
other hand, disgrace, being in itself a punishment, might be deliberately
inflicted, as on the failed emperor Vitellius:
They bound his arms behind his back, put a noose about his neck,
and dragged him with torn garments half-naked to the Forum. All
along the via sacra he was greeted with mockery and abuse,
his head held back by the hair, as is common for criminals, and
the point of a sword under his chin so that his face must be
visible.18
The views of Seneca, at one stage Nero’s tutor, writing in the later first
century AD, are not so very different from those of an educated European of
the earlier twentieth century. No treatment is to be seen as unduly harsh if
its effect is salutary, but the ruler should aim first to reform, and hence light
penalties should precede the more severe; death is the extreme penalty and a
warning to all.19 Mercy is not to be seen as the norm, for the distinction
between bad and good must be maintained; nevertheless, the balance should
tilt slightly towards clemency.20 When a ruler seeks his own vengeance,
there can be only two defensible purposes (for cruelty is always wrong),
either compensation for past injury or security for the future.21 But objec-
tively, punishment, which (for a Stoic) must always be administered
impersonally and without emotion, has three possible aims: to reform the
man that is punished, or by punishing him to make the rest better, or by
removing bad men to let the rest live in greater security. Reform demands
light punishment, for a desperate man has nothing to lose; further, severity
loses its potency by over-use. Seneca distinguishes between deterrence,
punishing a man to make the rest better, and public safety, putting bad
15
Tac. Ann. 6.29; 11.3.1; 16.33.2; contrast 15.60.1.
16
D 48.19.8.1, Ulpian; it was not within the powers of a provincial governor.
17
Pliny, Ep. 3.4.7.
18
Suet. Vit. 17.
19
Seneca, ira 1.6.2–4; clem. 1.14.1.
20
Seneca clem.1.2.2; cf. Polybius 6.14.4–5.
21
Seneca, clem. 1.21.1.
182
men out of the way.22 Authority there must be: ‘While a Caesar needs
power, the state also needs a head’,23 but the public interest must guide the
administration of criminal law. Since all men have sometimes done wrong,
and so there is no clear dividing line between the good and the bad, there
must be a gradation of penalties to fit the nature of the offence and of the
offender.24 Seneca, like other Roman thinkers, does not ever focus on the
victim of the crime; to some extent, any punishment was retribution. It
seems safe to say that the works of Seneca will have been known to every
jurist, read as part of his general education, but Seneca’s principles were not
necessarily followed. No other pagan philosopher wrote significantly on
what we would understand as theories of punishment. The most important
related notion that appeared in the later Principate was probably the con-
cept of public discipline, almost an updated mos maiorum.25
In the Christian period, it is possible that the fear of hell, or the fear of
God – a constant biblical phrase – and an acceptance of universal unwor-
thiness before God may have tended towards a harder line on punishment.
If we are all sinners, we all deserve punishment, and mercy is something to
be left to God. This attitude may have combined with the fervour of
rhetoric to keep the notion of retribution in the forefront of penal theory.
However, we also find accepted the need to give the criminal an opportunity
for penitence – as was later to be true for the Inquisition. While nobody in
this later era follows Seneca’s stress on clemency as the filter through which
to interpret the criminal law, there remained a range of philosophic atti-
tudes. St Ambrose praised governors who avoided bloodshed,26 although St
Jerome seemed undisturbed at the infliction of the death penalty for adul-
tery.27 St Augustine, writing in the early fifth century, objects, not to the
infliction of pain, but to its infliction upon the innocent; nevertheless, he
pleaded on behalf of certain Donatists that their punishment should be less
than their crime.28 But in the Later Empire, as earlier, there was need for
lawful authority, whether of God, the emperor, or the paterfamilias. Pun-
ishment was necessary for social life, but the Church was there to intercede
for the humble; bishops, with their pleas for mercy, were part of the
machinery of justice. There were also general amnesties for lesser crim-
inals;29 clemency was still an imperial function.
22
Seneca, clem. 1.22.1–2.
23
Seneca, clem. 1.4.3.
24
Seneca, clem. 1.6.3 and 1.14.1; ira 1.16.2–3.
25
Robinson (1992b), 208–09.
26
Ambrose, Ep. 25; cf. Swift (1970).
27
Jerome, Ep. 1.
28
Augustine, CD 19.6; cf. Ep. 133: he praised the governor for using only minor torture,
not the horse, or the claws, or the flames, but only a beating to discover the facts.
29
Robinson (1999).
183
Penalties in Republican Rome

The traditional penalties of early Rome had been harsh. In the Republic,
execution more maiorum meant being tied to a stake, perhaps with the neck
in a fork, and beaten to death.30 The lictors of magistrates with imperium
carried an axe to indicate the power to inflict death. Strangulation in the
carcer was also traditional,31 as for certain crimes was hurling from the Tar-
peian Rock, although this was probably viewed as more appropriate for
slaves; slaves, at least by the later Republic, were regularly crucified. Cru-
cifixion was considered the ultimate punishment, referred to by Cicero as
the most cruel and disgusting penalty.32 Some have thought that lapidatio
(stoning) was an archaic penalty, because it was a communal act.33 There
were some specific death penalties in the Twelve Tables of the mid-fifth
century BC.34 Stealing crops at night meant death for an adult, hung up to
Ceres.35 One who deliberately set fire to a building or a heap of corn
adjoining a dwelling was himself to be burned.36 A thief by night could
lawfully be killed, and one by day if he defended himself with a weapon;37 a
slave manifestly caught in the act of theft was to be hurled from the Tar-
peian Rock.38 Yet the Twelve Tables drew distinctions; they allowed the
reduction of penalties for those under puberty, or for those who did not
intend to do wrong, and they also accepted the principle of self-defence.39
In practice, however, suicide or departure into exile seem to have been the
most common courses of action taken by those faced with a capital charge,
although there are occasional dramatic stories where death was the penalty.
In 386 BC the Manlius who had held out in the Capitol against the Gauls
was condemned for aspiration to tyranny, and the tribunes hurled him from
the Tarpeian Rock.40 In 331 BC the Senate held an inquiry into the conduct
of certain noble ladies who were allegedly plotting to poison their husbands
and other leading men. Challenged as to the nature of their concoctions,
twenty of them drank off the potions and perished on the spot; a further
30
Cicero, Rab. Post. 16; Suet. Nero 49.2.
31
It was, for instance, inflicted on the Catilinarian conspirators (Sallust, Cat. 58).
32
Cicero, 2 Verr. 5.64.165; cf. Jos. BJ 7.203; see also Hengel (1977); Garnsey (1970), 126–
29.
33
Ferrini (1902), 10. Much, much, later, Amm. Marc. 29.3.5, reports a strator stoned to
death on the emperor’s order.
34
Gellius, 20.1, reports a discussion between the philosopher Favorinus and the jurist
Africanus on the severity of the XII Tables.
35
XII T 8.9 and 24b, ‘suspensum Cereri necari’, cited by Pliny, HN 18.3.12.
36
XII T 8.10, cited by Gaius, D 47.9.9.
37
XII T 8.12–13.
38
XII T 8.14, cited by Gellius 11.18.8.
39
XII T 8.9; 8.14; 8.10; 8.24a; 8.13.
40
Livy 6.20.
184
170 were condemned to death, and presumably dealt with by their families,
but this is not made explicit.41
Then, as we have seen in chapter 1, in 186 BC there was the Bacchanalian
affair. Even if we do not believe the figure of more than 7,000 put to death,
the capital penalty was clearly widely inflicted, although we know nothing
of the method. Strangely, there is no trace of the sacral or expiatory
approach. Men and women were executed, or held in prison, for what they
had done and what they might do, not for offending the gods of Rome; the
pontiffs and sacral law seem to have played no role in the Senate’s proceed-
ings, in spite of the crime being at least partly religious. In this affair there
was no trace of a criminal jurisprudence, of any theoretical justification of
punishment. It was too early for Greek philosophical theories to be influ-
encing the ruling classes; after all, philosophers were to be expelled from
Rome in 161 BC. There was no due process either.
Polybius, writing around 140 BC, tells us that Roman usage allowed those
on trial for their lives before an assembly (iudicium populi) liberty to depart
openly, thus inflicting voluntary exile on themselves, if even only one of the
tribes (recte, centuries) that pronounced the verdict had yet to vote.42 Since
this statement was made only some forty or fifty years after the Bacchanalian
affair, it is somewhat remarkable that Livy makes no moral comment on the
putting to death of so many persons, including so many from the upper
classes, particularly when, in the middle Republic, ‘there is no known
instance of a man being condemned in a trial before an assembly on a
capital charge’.43 It seems that the death penalty as a result of condemnation
in an ordinary criminal court was seldom inflicted on citizens in the later
Republic, although the statutory penalty of the standing jury-courts44 was
in most cases technically a death sentence, until Julius Caesar made it formally
a matter of exile, with interdiction from fire and water. This was, however, a
‘capital’ penalty, for the person convicted lost his caput, that is, his head was
no longer counted among the citizens, and citizens, even after Caesar’s
extension of the citizenship to all of Italy, were still privileged. Never-
theless, for the citizen Republican penalties were in general extraordinarily mild
by the standards of the Empire,45 but they seem to have been severe enough
to keep society stable until the civil wars of the last century of the Republic.
Because of the seriousness of the crime charged, parricide, it is possible
that Sextus Roscius junior did face the real possibility of being put to death
41
Livy 8.18; ep. 8. Livy described the affair as so extraordinary that it was more a prodigy
than a crime.
42
Polybius 6.14.7; cf. Robinson (2004).
43
Lintott (1999), 161.
44
See ch. 2 for an outline of the system of standing jury-courts.
45
As a comparison, in 1833 A. Alison could write (Practice of the Criminal Law of Scotland
(1833, Edinburgh), p. xxvi): ‘there are not above eight or nine persons executed annually
in the whole kingdom [of Scotland].’
185
by the penalty of the sack. But he was not a confessed parricide, and it may
be that, had he been convicted, he would have met only the normal sentence
under the lex Cornelia de sicariis et veneficis, and been able to go into exile. It
was in his – and Cicero’s – interests to stress the dreadful penalty and excite
the jurors’ pity. And we know from pro Cluentio that someone of equestrian
rank sentenced, for attempted poisoning, to the normal penalty of the lex
Cornelia, and theoretically in exile, might still, if he benefited like Oppianicus
from some public sympathy, remain in Italy, although not venturing into
Rome.46 For senators a sentence of exile was political death, but it left them
alive to enjoy, like Milo, the excellent mullets to be found in Marseilles.47
Outside the legal system were the public spectacles involving the deaths
of many: criminous slaves, prisoners of war, bought gladiators.48 Such events
mostly have their roots in the mid-Republic, but their scale and effect
increased greatly in the last fifty years of the Republic, although the Marian
and Sullan proscriptions had something of the orchestrated exhibition about
them. Triumphal processions usually involved many deaths; Pompey’s generosity
in releasing his prisoners was remarked.49 The hunting games (venationes),
first held in 186 BC, deliberately involved human as well as animal deaths; they
were included in the vast triumphal shows of Pompey and Caesar. Then there
were the munera, the shows where gladiators fought in honour of the dead,
put on by Caesar (with 320 pairs), and many others, especially his successors.
When Caesar gave games as aedile in 65 BC, this, according to Pliny the
Elder, marked the first appearance of noxii (but this need not include citizens)
in the arena as opposed to perditi.50 At the naumachiae, the staged sea battles,
favoured by the Julio-Claudians, thousands of such non-persons died. Mock land
battles were also fought, again entailing the deaths of thousands. These are
undoubtedly the origins of formal, legal condemnation to the beasts or the
hunting games, and of the staging of executions in an amphitheatre or circus
rather than somewhere smaller or less accessible. Such spectacles became in
the Empire a part of the penal system while retaining their character of
public shows, provided for the entertainment of the public and the glorification
of the giver through the massive shedding of blood. One must, however,
also remember that public execution has some justification in contrast to
secret acts of authority, as well as being a more effective deterrent.51
46
Cic. Clu. 62.175.
47
Dio Cassius, 40.54.3.
48
See generally Kyle (1998).
49
Appian, Mith. 117; cf. Jos. BJ 7.154.
50
Pliny HN 33.16.53; noxii are criminals, perditi life’s losers. See, e.g. Ps.-Quintilian
decl.maj. 9.21 on gladiators as bad characters.
51
As A. Alison wrote in Some Account of my Life and Writings: an Autobiography (1883,
Edinburgh), I 477: ‘When [sentence of death] is carried out it should be with the utmost
solemnity, and in the most public manner. Private execution in prison is pure judicial
murder; for it is unattended with the only circumstance that can justify the taking away
of life – the exhibition of an example which may deter others.’
186
What we simply do not know, hardly even in brief glimpses, is what

penalties were imposed on ordinary criminals, and on what legal basis.
Punishment of such offenders will have been somewhat less of a problem for
the ancient Romans than for us, for at least two, linked, reasons. Delict,
with its remedy of reparation, covered many areas that we would nowadays
view as crimes, in particular theft but also assault and defamation, and
malicious damage to property. Much petty crime, it seems safe to say, will
have been committed by slaves. When a delict was committed a slave owner
was noxally liable for his or her slave’s action; victims will thus have had a
better chance of compensation from the wrongdoer than is likely in the
modern world (which relies on insurance), and most would presumably
prefer this path to that of vengeance. Further, there is no doubt that slaves,
and foreigners, caught in the act of thieving could be summarily flogged, or
even executed; this was one of the main functions of the tresviri capitales.52
The problem is what happened to citizens committing street crime; as
citizens they were in law protected from summary flogging, and a priori
from summary execution. There is nothing, however, in what we hear to
suggest that protection was effectively available in such cases, since one can
safely assume that the tribunes would withhold their auxilium; the shelter of
the lex Porcia may in practice have been unobtainable. My guess is that
persons caught in street crime were presumed, presumed from the very
nature of their behaviour, not to be citizens, and were thus liable to the
disciplinary powers, the coercitio, of the tresviri, unless they could make a
very convincing case for themselves. Crime other than street crime, or where
the political implications led to an assembly trial, may usually have been
dealt with domestically in the early and mid Republic, and in the late
Republic the introduction of the quaestiones perpetuae covered most major
crimes. Nevertheless, there is a substantial gap in our knowledge.
The growth of the death penalty: punishment in

the Empire
In the Principate the actual infliction of death, even on citizens, became
normal, although the upper ranks more commonly suffered deportation.
Various factors probably explain this shift. The growth of the City’s popu-
lation seems likely to be one, and also the steady increase in numbers of
citizens, and proportionately of criminals; there was more need to remove
criminals permanently from the public scene. On the other hand, permanent
restoration of a peaceful society may have meant higher expectations of the
repression of crime.53 The constitutional change from Republic to Empire
52
See Cascione (1999); also Santalucia (1999).
53
Krause (2004), already cited, on the normality in the Roman world of taking the legal
route to deal with crime, unlike the unregulated medieval and early modern periods.
187
probably led to a more consistent exercise of authority, and as all provinces

came, directly or indirectly, under imperial control, the emperor’s dis-
ciplinary role as (metaphorically) father of his country grew more promi-
nent. The clearest example of this tendency is the criminalization of
adultery, at the same time combined with a prohibition on an aggrieved
husband’s killing his wife, in Augustus’ lex Julia; domestic jurisdiction was
clearly deliberately diminished. Further, other courts came to rival the ordo,
courts exercising therefore, an ‘extra-ordinary’ jurisdiction, which we con-
veniently if inaccurately know as cognitio.54 In the City the Senate and the
Urban Prefect exercised a new criminal jurisdiction, and in the provinces
the governor’s role became increasingly more judicial and less military; iudex
became his normal title. Drawing their authority ultimately from the
emperor, the new courts were not restricted to the penalties laid down by
the statutes establishing the ordo, but had discretion to mitigate or aggra-
vate the fixed penalties.55 A gradation of penalties was established, the
system described in the Digest. And, increasingly replacing the traditional
citizen or non-citizen distinction, there developed the contrast between
honestiores and humiliores; slaves naturally always remained at the bottom of
the heap.56
For the upper ranks this change took a long time to come into effect.
Retribution and deterrence – because dignity was preserved – do not seem
to have been seen as appropriate motives for the punishment of senators; the
humiliation of loss of status was bitter, but dignified, internalized. Piso, in
spite of his undoubtedly treasonable activities, was not even under house-
arrest at the time of his trial. His suicide may have been encouraged by the
emperor; it was certainly a good Stoic way to go. As a senior senator, and of
noble family, he was not subjected to any humiliation, other than that of
having to stand trial.57 Tiberius was no bloodthirsty tyrant in this case.
Marius Priscus was sent into permanent exile, banned from Rome and Italy,
for extortion accompanied by brutalities; he was therefore punished severely,
but by no means in the measure of what he had inflicted, while his legate
was allowed to remain a senator, although excluded from any active exercise
of office.58 Caecilius Classicus preferred suicide to prosecution, while others
54
On the decline of the standing jury-courts, see ch. 3. On the rise of the Senate as a
criminal court, see chs 3 and 4. On the role of provincial governors, see ch. 5.
55
D 48.19.11pr, Marcian; 48.19.13, Ulpian.
56
Cf. Seneca, ira 3.32 and 35; clem. 1.18.1–2. Slaves could be condemned to be held in
chains, whether in perpetuity or for a fixed period; in this case they remained in the same
ownership as before their condemnation. It was not legally possible to condemn slaves to
forced labour, presumably because that was their position anyway, but they could be
condemned to the mines or the hunting games, as well as to death (D 48.19.8.4–13,
Ulpian).
57
Tac. Ann. 3.10–15.
58
Pliny, Ep. 2.11.19; 2.12.2.
188
who had shared in his misdeeds were relegated for varying terms of years.59
Julius Bassus was another who retained his seat in the Senate, although
condemned to make reparation, and his acts as governor of Bithynia were
rescinded.60 Atticinus was merely relegated to an island for such serious
crimes as making a charge against his superior, falsifying official documents,
and diverting against his superior an accusation made against himself.61
Suicide, enforced by the emperors or freely chosen, was a common fate for
senators in the early Empire; it meant death, true, but it was death without loss
of dignity, death normally without infamy, death without ill consequences
for the victim’s family. These were matters very important to the upper
ranks of Roman society, to the movers and shakers in the administration
and development of law. It was what was meant by a ‘free choice of death’.
It must be significant that deportation and relegation, penalties imposed
only on the higher ranks of society, were dealt with in the Digest in a title
separate from that simply on punishments, de poenis.62 Deportation, which
was of its nature perpetual, was a capital sentence, in that it involved loss of
citizenship, and usually total confiscation of the condemned’s property.63
Relegation, which could be perpetual but was frequently for a fixed period,
preserved citizenship; it was normally accompanied by a fine or partial
confiscation.64 It could mean exile to an island or other fixed place, or
merely a ban on the convict’s remaining in his own province or in Rome.65
These punishments for the upper ranks are a simple development from
the Republican state of affairs; death or exile from Rome was the statutory
penalty of the quaestiones perpetuae, with fines or compensation where appro-
priate. But early in the Empire other penalties began to appear. Exile to a
fixed place and condemnation to forced labour are both found in the reign of
Tiberius, but we do not know if he introduced them, and for what class of
person. He sentenced many of the magistrates as well as members of the
plebeian population of Pollentia, in Liguria, to perpetua vincula after a riot.
He condemned one equestrian in antliam (a water treadmill) – we do not
know the legal pretext, but Suetonius says it was because he was a friend of
Livia – and threatened another with vincula.66 Of Caligula we are told that
he had men of status (honesti) tattooed and condemned to the mines or to
forced labour, or to the beasts. More specifically, an eques was sent to the
59
Pliny, Ep. 3.9.5 and 12–18.
60
Pliny, Ep. 4.9.18–19; 10.56.4.
61
Pliny, Ep. 6.22.5.
62
D 48.22 and 48.19.
63
D 48.22.6pr, Ulpian; 48.22.15, Marcian. Only transactions of the ius gentium were open
to deportees, of which the chief consequence was that they had no capacity to make or
take under a will.
64
D 48.22.4, Marcian.
65
D 48.22.5, Marcian; 48.22.7pr, Ulpian; 48.22.18pr, Call.
66
Suet. Tib. 37; Tib. 51 and 57; see also Chauvot (1999).
189
beasts, after having had his tongue cut out when he complained at the
sentence (presumably at the indignity of this fate); furthermore, because of a
double entendre, a writer of farces (but was he a citizen?) was burned alive
in the arena.67 Claudius, motivated, credibly and even creditably (had it not
been for his whimsicality and proneness to instant rage – he had the hands
of a forger amputated directly on the conviction68) ex bono et aequo, both
softened and harshened the penalties of the statutes; exceeding the penalty
of the law, he condemned to the beasts those convicted of more wicked
crimes. He extended a governor’s interdiction of a condemned man from his
home province to cover exclusion from Rome and Italy, and in some cases,
rather than excluding someone from Rome, he confined him to the City and
3 miles around it.69 There were also executions more maiorum, of offenders
tied to a stake and flogged to death, and parricides were sacked; traditional
penalties, but previously very rarely used.70
Under Nero, after a riot in Jerusalem in AD 66, Florus the procurator
scourged and crucified many, including Jewish equites, but this was surely
seen by the authorities as not merely sedition but treason.71 Senators were
put to death in Nero’s reign, but they seem, in their deaths, to have been
allowed their dignity. Nero was also practical; those in custody throughout
the Empire, even those convicted of serious crime, did not receive the sen-
tences imposed but were brought to Rome to work on his building pro-
gramme.72 Domitian is on record for many domestic or arbitrary cruelties;73
in particular, we are told that he once had a paterfamilias dragged from his
seat at the arena and thrown to the beasts – in this case dogs – for a com-
ment on the gladiators which displeased the emperor. Nevertheless, as far as
ordinary men, at least in the provinces, saw his reign it was as a time of
good order. Since we know that the change to a wider range of penalties and
a greater use of discretion in their administration had certainly come into
effect by Trajan’s reign, it is a question of whether this was just gradual, or
can be ascribed to any particular emperor. It seems to me that such inno-
vations became systematic in the reign of Claudius.74 We are told that he
was unusually conscientious about the exercise of jurisdiction; further, both
his innovations and his antiquarian regressions are to be found as normal in later
penal law, unlike the individual cruelties or experiments of other emperors.
We can therefore accept that the emperors, and particularly Claudius, as a
matter of policy developed the penal law as regards ordinary criminals on
67
Suet. Cal. 27.
68
Suet. Claudius 14–15.
69
Suet. Claudius 23; cf. D 48.22.5, Marcian.
70
Suet. Claudius 34.
71
Jos. BJ 2.308.
72
Suet. Nero 31.3.
73
Suet. Dom. 10–11, and his spectacles included women fighting (Dom. 4).
74
Robinson (1998).
190
the pattern to be found in the Digest. The discretion always enjoyed by

those judges exercising cognitio could allow further experimentation.
The sentences on the Christians in the Acta Martyrum are somewhat dif-
ferent, partly because by definition, in dealing with martyrs, they are
describing people who were put to death; furthermore, again by definition,
none of the protagonists was seeking an acquittal. Here we read of dark
prisons and of agonising tortures, inflicted to make the victims change their
minds and conform to the religion of the state. Their deaths were some-
times deliberately prolonged or painful, but more often consisted of simple
decapitation. Further, sexual humiliation was sometimes specifically
imposed on women who vaunted their chastity. (In view of the condemna-
tion of women to the service of the miners, there is no reason to doubt the
occasional condemnations to the brothel, as in the case of Irene, one of the
companions of Agape.75) The Christians came predominantly from the
lower orders of society, people not shielded by their rank. Their fate was
much closer to that of common criminals. Even so, there is almost no
mention in these Acta of the kind of wanton cruelty employed in the earlier
Principate, no rape by an ass, no ‘fatal charades’.76 Such practices were still
known to Tertullian, writing at the end of the second century,77 but they
may already have been somewhat discouraged by Marcus Aurelius.
However, the aggravated death penalty had come, it seems, by the
beginning of the third century to include death by torture; this was hardly
illogical if the deliberate infliction of pain was part of the intention behind
the sentence, although it did not fit with earlier views. Techniques of tor-
ture, which had been used as tools of the criminal process for interrogation
and the exaction of confessions, became methods of punishment, quite con-
trary to the opinions expressed by the jurists. This perhaps explains why, in
the Digest, the title on torture immediately precedes that on punishments,
because for the compilers the boundary had become blurred.78 Indeed, it
was in the final stages of the ‘great’ persecution that Maximin Daia intro-
duced mutilation as a deliberate punishment, as an alternative to the death
penalty, a punishment which was arguably more humane.79 Under Justinian,
mutilation, specifically the amputation of the limbs, was regulated,80 and
75
ACM, Agape et al, 5–6; cf. ACM, Pionius, 7.
76
Apuleius, Met. 10.22–23, 29 and 34; Coleman (1990); Vismara (1990). The nearest seems
to be the attempt to dress Perpetua and her companions in the robes appropriate to
priests of Saturn and priestesses of Ceres (ACM, Perp. 18). The games were becoming
banal.
77
Tert. Ap. 15.4, which dates from around 197.
78
Cerami (1991).
79
Eusebius, HE 8.12.10.
80
NovJ 134.13; cf. Manfredini (1995). Other legislation included NovJ 128.20, 545,
giving a governor’s deputy full powers, except to order the death penalty or the amputa-
tion of a hand; cf. NovJ 42.2.2, 536, with amputation of a hand for writing out heretical
opinions.
191
castration, an illegal act, was punished by castration.81 Interestingly, in view

of the Roman tradition of denying burial to enemies and the anti-social, we
frequently find that Christians were allowed to take away the bodies or ashes
of the martyrs for a seemly funeral.82
In the Later Empire the problem of governance was exacerbated in one
sense by the very changes made to make it more effective, that is, the move
towards a more hierarchical control through Praetorian Prefects and the
Vicars of groups of provinces and away from larger relatively independent
provinces. The impossible attempt to exercise direct imperial control
everywhere through the bureaucracy – overworked term though that is –
must have contributed to the shrill tone of fourth- and fifth-century crim-
inal legislation, and the attempts to terrorize the population into good
behaviour by threats of torture and harsh penalties. There were also, of
course, problems arising from barbarian invasions, civil wars and military
revolts, natural catastrophes, economic difficulties and manpower shortages,
usually worse in the Western than the Eastern parts of the Empire. The
successful Germanic settlements in the later fifth century and thereafter may
well have made the remainder of the Empire easier to govern.
The tone of Ammianus’ descriptions of interrogations, tortures and
executions may have been exaggerated for rhetorical effect, and intended to
stress the savage fears and cruel rages of certain Christian emperors. Never-
theless, he does describe men of high rank being tortured, tried arbitrarily
with no opportunity to make a defence, and executed for relatively minor
offences. The numbers affected may be smaller than he wishes to imply,
although more seem to have perished than in the treason trials recounted by
Tacitus, but it is clear that the privileged classes could no longer rely with
confidence on their rank to protect them, or even to ensure due process. Perhaps,
however, the episode which best represents the spirit of the age is the
burning to death of the executioner who led a Roman matron, condemned
for adultery, naked to her death.83 The Roman social order was indeed being
subverted, and not in the interests of principle, of equality of treatment, but
because the emperors cared little for the claims of senatorial families, and saw
their own nominees as dependants to be punished for any failure in obedi-
ence or even respect. Christianity seems to have been a mixed blessing as the
official religion of the Empire. It may well have led to the strengthening of
superstition (in contrast to the fairly sceptical attitudes of Cicero or Seneca)
and a renewed fear of a magic now based on more intellectual foundations.
And yet at the same time there was legislation aimed at ensuring due
process, and at checking the arbitrary exercise of power by officials. As so
81
NovJ 142.
82
In contrast to the (entirely legal) treatment of the bodies of those executed as a con-
sequence of Sejanus’ conspiracy (Tac. Ann. 6.19). See also Kyle (1998), 132–33.
83
Amm. Marc. 28.1.28.
192
often, it is a contradictory picture, although the tone of the legislation does

something to support the historians’ representation. It was also a period
when controls designed to make prisons more humane are introduced;
prison was probably relatively less terrifying than it had been earlier. Also,
time served in prison now counted towards the sentence. Justinian, as we
have seen, reflected this ambivalence. He took a relatively enlightened atti-
tude towards women, and he replaced physical penalties with fines; on the
other hand, he condoned impalement, preserved the habitual use of torture
on slaves, and never questioned the institution of slavery.
Law and general ideas of punishment

Crimes as such, the substantive criminal law, did not really change much
between Cicero’s day and the Enlightenment. For the Romans the heinous
crimes were treason, adultery, and murder (especially by poisoning), which
could be linked with magic arts and potions; they became officially unpar-
donable in the Later Empire.84 There can be general agreement that these
were, and are, undeniably serious crimes, even if adultery has long ceased to
be seen as petty treason. Yet ideas about punishment have changed,
although not dramatically until the last couple of centuries.
Deterrence, public safety, retribution, reform, social stability: there is no
reason to doubt that the jurists were aware of these justifications of
punishment, but as jurists their task was to administer rather than com-
ment on the law. Their debates were concerned with the definition and
interpretation of existing legal principles, statutory or jurisprudential,
rather than with wiping the slate clean and hypothesising an ideal. Only
occasionally does one find a revolutionary remark, such as Ulpian’s comment
that a husband should only be able to bring an accusation of adultery if he
himself has lived a chaste life;85 this was very clearly not part of the com-
munis opinio.
There was some overt acknowledgement of retribution in Roman legal
sources; hence the element of penalty as well as reparation in delictual
actions.86 Robbers might be executed where they had plied their trade and
killed their victims for simple retributive reasons – to console the latter’s
kin and neighbours – as well as for deterrence.87 There were some strands
of thought that looked towards reformation. Paul wrote that the heirs of
criminals were not criminally liable because ‘punishment exists for the
84
Robinson (2001a). It is not a list so different from the traditional four pleas of the Crown
in Scotland, treason, murder, rape, and fire-setting; moreover, the crime of witchcraft was
only abolished with effect from 1736, 9 George II, c.5.
85
D 48.5.14.5, Ulpian.
86
G. 4.6–9; Inst. 4.6.18–19.
87
D 48.19.28.15, Call.: ‘ut et conspectu deterreantur’ and ‘et solatio sit cognatis et adfini-
bus’. Seneca disapproved of retribution or revenge, ira 2.32.
193
correction of men’, and once they were dead this was clearly no longer
relevant.88 We find the same reformist objective in certain of Justinian’s
Novels.89 It is not altogether easy to see the purpose of the punishments
inflicted on the Christian martyrs – they were hardly deterrent, even if they
prevented the martyrs continuing to practise Christianity; presumably they
too were aimed at reformation, turning the Christians into decent wor-
shippers of the Roman gods.
Seneca’s maintenance of the desirability of a slight tilt towards clemency
rather than strict justice was echoed in the Digest. Paul wrote that ‘In
criminal matters the more favourable interpretation should be taken’ and it
was also held as a general principle that, in interpreting the laws, penalties
should rather be softened than harshened.90 Trajan laid down that in crim-
inal cases persons should not be condemned in their absence, and neither
should they be condemned on suspicion – presumably where absent – for it
was better to let the guilty go unpunished than to condemn the innocent.91
Should accused slaves not be defended by their owners, they were not to be
summarily led to punishment but could be defended by some third party,
and the judge was not to presume them guilty but to inquire into their
innocence.92 Reasonableness (moderation) must be observed in sentencing,
even though the judge in cognitio had discretion to aggravate or mitigate a
penalty.93 Antoninus Pius laid down that persons condemned to the mines
who became unfit to work through sickness or age might be released, pro-
vided they had served at least ten years and had family to be responsible for
them.94
Torture is by definition the deliberate infliction of pain, but legal or
judicial torture is towards an end, confession or evidence. The jurists seem
to have aimed to control its use, if at least partly because of its unrelia-
bility.95 Hadrian wrote that nobody should be condemned for the purpose
of putting him to the torture.96 A pregnant woman was not to be put to
the torture, or executed, until after the birth of her child.97 Ulpian had also
written: ‘The prevailing view is that it is the duty of the judges to weigh
88
D 48.19.20, Paul: ‘poena constituitur in emendationem hominum’.
89
NovJ 25.2.2; 141.1; compare the removal of the prostitutes to a convent. Honoré (1978),
10, has pointed out that there is no doubt that Theodora, after a licentious youth, did
repent, or at least reform her way of life, and become a chaste Christian consort.
90
D 50.17.155.2, Paul; 48.19.42, Hermog.: ‘Interpretatione legum poenae molliendae sunt
potius quam asperandae.’
91
D 48.19.5pr, Ulpian: contumaciously absent defenders could, however, have judgment
pronounced against them, as long as the sentence was not capital.
92
D 48.19.19, Ulpian.
93
D 48.19.13, Ulpian.
94
D 48.19.22, Mod.
95
D 48.18.1.23–4, Ulpian, and see the discussion in ch. 5.
96
D 48.18.21, Paul.
97
D 48.19.3, Ulpian. This was observed in the case of St Perpetua’s companion, St Felicity.
194
the degree of torture; for the interrogation should be so conducted that a

slave survives, whether for acquittal or punishment.’98 A considerably later
jurist wrote that torture should not be inflicted to the accuser’s satisfaction,
but only as far as was reasonable.99 The jurists took a bleaker if perhaps
more realistic view than the philosophers, but they were well aware of the
arguments against the proponents of the ‘hang – or flog – ’em all’ school.
And Justinian deliberately preserved their views.
What is quite clear is that there were always graduated penalties, grad-
uated according to legal status or social rank: ‘Our ancestors, whatever the
punishment, penalized slaves more severely than freemen, and notorious
persons more than those of unblemished reputation.’100 (The weight of
someone’s evidence depended similarly on rank and reputation.101) The
aggravated forms of death penalty were deliberately brutal; simple death by
decapitation seems normally to have been without humiliation or unneces-
sary pain, as the death of Cyprian evidenced. Deportation or the mines,
relegation or forced labour, fines (or loss of rank) or beatings, these made up
the normal list of penalties less than death. When someone of the upper
ranks committed a crime deserving of the severer scale of punishment, his
case must be referred to the emperor.102 Prison as such was not a usual
penalty, although fetters might be a sentence on slaves, but condemnation
to forced labour while held in custody seems very close indeed to prison
with hard labour.103 As seen by the jurists, the range of penalties was suf-
ficient to deal with the range of crimes; penalties were also graduated
according to degree of guilt.104 It was a harsh world, but that harshness has
really only changed in the last couple of centuries; it is a very modern view
to see as cruelty a deserved punishment which involves the deliberate
infliction of pain.
Summary
The Twelve Tables of the fifth century BC reveal a nuanced legislation; dis-
tinctions were drawn between dolus and casus, between the fully responsible
and the child. Since they were the foundation of Roman law, these rules
cannot have been forgotten. But fear of the unknown, fear of the secret, the
98
D 48.18.7, Ulpian; an unsuccessful accuser would be liable for the value of any slaves who
died under interrogation (48.18.6pr, Papinian).
99
48.18.10.3, Arcadius Charisus: ‘non quanta accusator postulat, sed ut moderatae rationis
temperamenta desiderant.’
100
D 48.19.28.16, Call.
101
D 22.5.3pr, Call.
102
D 48.19.2.1, Ulpian; 48.19.27.1–2, Call.
103
For an assortment of views, see Lovato (1994), Krause (1996), the essays in Bertrand-
Dagenbach (1999).
104
D 48.19.5.2, Ulpian citing Trajan; 48.19.11pr and 2, Marcian.
195
uncanny, could overthrow such safeguards, as we see in the Bacchanalian

affair of 186 BC and in the trials under Valens of AD 371–72. These, however,
were not policy so much as reaction. In the other cases considered in this
book it is reasonably apparent that the rule of law is usually recognized and
due process generally followed.
The penal policy of the late Republic and Principate makes clear that
criminal misbehaviour in the upper ranks was deplorable, but could be
treated, almost, as a series of unfortunate incidents, not tearing the fabric of
society. At the same time the governing classes were encouraging the
populace to enjoy public bloodshed on a large scale, enhancing social soli-
darity among the citizen body by putting to death non-persons, such as
prisoners of war, insolent slaves and rebellious subjects. It is to be remem-
bered that human rights cannot exist in a society with widespread slavery.
Both the governing and the governed classes became used to punishment as
entertainment, to the humiliation of the losers. The practice of imposing
such penalties bore virtually no relation to the arguments put forward by
the philosophers, and the more muted caution of the jurists. The policy
behind this approach was social cohesion rather than legal nicety.
The Empire, from its origins, inevitably brought in more social controls.
The rule of one man demands an obedience and loyalty very different from
that due to magistrates who have achieved their (temporary and collegiate)
position through competitive (sometimes bloody) jostling among the
members of the Senate. As jurisdiction came to be exercised normally on
behalf of the emperor, and as appeal was introduced, the emperors aimed to
contain their subjects, and the concept of citizenship faded, until in the
Later Empire Romanitas was a cultural rather than legal concept. The jurists
reveal the workings of the imperial mind, but no emperor, not even the
philosopher Marcus Aurelius, ever seems to have sat down, or set up a
working party, to produce a report on crime and punishment as such. To a
considerable extent penal policy was reactive. This must explain the frantic
tone of the Later Empire when the barbarians were habitually a serious
threat, often on several fronts. Penal practice does not seem to have changed
significantly in nature, even if a wider proportion of the population might
come to be at risk of incurring punishment (as illustrated by the gloomy
fates discerned by the astrologer, Firmicus Maternus). The contrast between
his world view and that of Apuleius, whose second-century Golden Ass
(Metamorphoses) records dangers and crimes enough and yet with a certain
gaiety and hope, is striking, and I think not only due to the different genres.
We must dismiss the notion that the actual modes of death imposed were
any more cruel in later than in earlier times. The proscriptions of 82–81
and 43–42 BC show appalling savagery within the Republican senatorial
class itself; the treatment of Spartacus and his followers,105 or of the Christians
105
Appian, BC 1.14.120.
196
after the Great Fire in AD 64,106 was brutal in the extreme. Martial’s
description of the bloody games given by Titus shows that, at least for those
condemned ad bestias or in ludos, there were no restrictions on the public
executioner’s imagination.107 Barbaric methods of execution, torture,108
indifference to human suffering mark the practice of Roman penal law at all
periods.109 Unfortunately Roman penal as well as civil law was absorbed
into the medieval West and its successors; without doubt, in the field of
criminal law, Natural Law and the Enlightenment provided a necessary but
belated corrective.
While the rule of law, due process and civic rights were principles deeply
ingrained in the Romans, they were seen as quite compatible with a lack of
equality before the law, whether for women, or plebeians, or freed persons,
or peregrines, and with a complete absence of legal rights for slaves. Due
process was normally offered to peregrines and slaves, as trials in the New
Testament and the Acta Martyrum show, but this was based more on the
concept of noblesse oblige, on the behaviour the Roman upper classes felt
incumbent on themselves, than on any right; the concept of individual, of
human, rights as opposed to the rights of a citizen did not exist, and was
not to exist until the twentieth century. The French constitution gave rights
to man as citizen (and therefore women were second-class) while the American
constitution embraced slavery without a qualm, not identifying black people
as citizens. One might even argue, with tongue only slightly in cheek, that
these late eighteenth-century developments reflected a return to the liberties
known to the Romans of the Republic and subsequently lost.
106
Tac. Ann. 15.44.
107
Martial de spectaculis, and in contrast the comment: ‘nec auctor posthac [becoming ponti-
fex maximus] cuiusquam necis nec conscius’ (Suet. Titus 9); those dying deserved to die,
so they didn’t count.
108
For example, consider Sassia’s treatment of her slaves (Cicero, Clu. 66.187). See also
Cerami (1991); cf. Harries (1999), 122–34; MacMullen (1986a).
109
It also seems probable that, in contrast to our modern susceptibilities, the regular prac-
tice of animal sacrifice (Jewish, remember, as well as pagan) inured the population of the
ancient world to the sight and smell of blood, to the notion of slaughter.
197
GLOSSARY
This Glossary is designed to explain quickly those words which may

be unfamiliar; however, it does not replace the Index. The use of a
classical dictionary is recommended for the more important institutions;
Berger (1953) would be ideal, but is not so widely available. The explana-
tions relate to the periods covered by this book, and to its theme, the
criminal law.
album the list of potential iudices (judges/jurors) for the standing jury-
courts, drawn up annually by the Praetor.
assemblies of the Roman people: v. iudicia populi.
auxilium, tribunician: the right and duty to bring aid to any unjustly
afflicted citizen, one of the powers of the tribunes of the people,
acquired by the emperors; there was discretion as to its exercise.
capital – as in offence/punishment: something putting at risk not only
someone’s physical life, as in modern usage, but also his (or her) civic
life by status loss – capitis deminutio.
clarissimi v. status.
Code: Justinian’s: v Corpus Iuris Civilis; Theodosian: of AD 438, a collection
of imperial legislation since Constantine. See ch. 7.
coercitio the power of a magistrate or official to enforce his orders in his
sphere of office; it had a much wider range than our contempt of court,
for it was applicable to offenders against public order.
cognitio the exercise of jurisdiction outside the ordo, q.v.; single-stage
forms of court procedure.
compilers the committee of lawyers appointed by the Emperor Justinian
to compile the Corpus Iuris Civilis.
consilium a council to give counsel, whether within the family, or to
someone holding office, or to the emperor.
Corpus Iuris Civilis Justinian’s collection of legal sources, comprising his
Code (534), the Digest (533), and the Institutes (533). The Code
included imperial legislation from the mid-second century onwards; the
Digest was an edited collection of jurists’ writings, ranging from the
198
G L O S S A RY
very late Republic to the later third century; the Institutes was an ele-
mentary textbook, based largely on that of Gaius.
curial concerning decurions (q.v.), seen as an order in society.
decemviral relating to the commission of ten responsible for the Twelve
Tables of the mid-fifth century BC.
decurion member of a town council – the ordo decurionum, and so a pri-
vileged citizen.
decury subdivisions of the album.
defensor civitatis an official appointed to protect the poor against the
strong in the Later Empire.
egregii v. status.
equestrians/equites the ‘gentry’ class of the late Republic and early
Empire, overlapping at its upper end with senatorial families, and
similarly defined by a property qualification; they are so named because
they originally formed Rome’s cavalry, and were sometimes supplied
with horses at public expense. Their separate status fades in the grow-
ing officialdom of the Later Empire.
extra ordinem offences dealt with other than by the quaestiones perpetuae
and the legislation which created them.
fisc (fiscus): the imperial treasury, the chief employer of informers (delatores).
flagitia a general term for crimes against the moral order.
games (ludi): a term which covered theatrical performances, horse-racing,
gladiatorial combats, and other spectacles, celebrated in honour of the
gods or of some secular anniversary.
honestiores the privileged classes of citizen, the lowest rank of whom
were veterans honourably discharged from the legions; cf. status.
humiliores the lower orders, the unprivileged. Neither of these terms
defined formal legal status.
imperium, maius superior authority over other holders of imperium, e.g.
of the emperor or his designate over other generals.
iudex, iudices a juror in a quaestio perpetua; in later usage, a provincial
governor.
iudicia populi criminal trials before an assembly of the people, organised
by centuries or tribes; they disappeared before the end of the Republic.
iudicia publica the standing jury-courts for criminal trials (quaestiones
perpetuae); as cognitio became more widespread, iudicium publicum came
simply to mean a criminal court.
jurists lawyers, specialising in the interpretation of law, whose stand-
ing was based on their high social status, personal authority and the
approval of their peers, and in due course imperial recognition;
they flourished from the late second century BC until the mid-third
century AD.
lex a statute passed by one of the assemblies, e.g. lex Porcia.
libellus literally a little book; it could mean a formal written accusation.
199
G L O S S A RY
litis contestatio properly joinder of issue in private law, but used for the
point of no withdrawal in a criminal trial.
mandatary someone acting under a contract of mandate; mandates were
also imperial instructions to officials.
manumission release from slavery by a juridical act.
money in the early and mid-Republic the bronze as was the unit of
account; HS was the symbol for a sum given in sesterces, the normal
silver coinage of the later Republic and Principate, although the denar-
ius came to replace the sesterce as the normal silver coin; in the Later
Empire sums were given in gold aurei (each = 100 sesterces) or in
pounds of gold.
mos maiorum the custom of [our] ancestors; more maiorum = in accor-
dance with this. The Jews were recognized as having their own valid
mos maiorum.
municipia in the late Republic, Italian towns with powers of self-government.
noxal liability/surrender the vicarious liability of an owner or paterfa-
milias for the delicts of those in his power; he owed the victim
reparation but could surrender the actual wrongdoer to work off the
damages.
optimates the political grouping in the late Republic dominated by the
well-established aristocrats, whereas the populares sought popular sup-
port in pursuit of much the same ends.
ordo iudiciorum publicorum the system of standing jury-courts, as
finalised under Augustus; variations from the practice of this system
were sometimes described as extra ordinem, sometimes as falling under
cognitio.
plebeians in the Republic and early Empire, those citizens who were not
senatorial or equestrian; later those who, whether citizen or not, were
counted among the humiliores.
populares v. optimates.
procurator one who administers another’s affairs, including the emperor’s.
province sphere of duty, not limited to a geographical area.
provocatio a form of appeal in the Republic of which the nature is hotly
debated; it, like the protection given by the lex Porcia, must have been
dependent on the intervention of the tribunes.
quaestio originally a commission of inquiry; when ad hoc it could be
described as extraordinaria; a quaestio perpetua was a permanent jury-
court, and this is the normal meaning of the term.
quaestiones perpetuae the standing jury-courts, systematised by Sulla,
and completed by Augustus.
saevitia cruelty, brutality, not in itself illegal when directed against non-
citizens, but an aggravating circumstance.
senatusconsult (SC, plural SCC): a resolution of the Senate, which came to
have statutory force for a while during the second century AD.
200
G L O S S A RY
status in the Republic citizens were divided among the senatorial ordo (at
the top), the equestrians and the plebeians. In the Later Empire persons
of senatorial rank were clarissimi; the highest senatorial officials were
illustres, the lower ones spectabiles; below senators but above decurions
were egregii and perfectissimi.
stuprum sex crime of all sorts, although sometimes to be distinguished
from adultery in the narrow sense, i.e. extra-marital relations with a
respectable married woman.
Tetrarchy the system of imperial administration set up by Diocletian,
with two joint Augusti as senior emperors and two Caesars as their
collaborators and heirs; it did not survive.
tresviri capitales minor magistrates – young men who might become
senators – with responsibility in the late Republic for fire control and
public order.
tyrant unsuccessful claimant to empire.
usucapion the acquisition by lapse of time of good title to property ori-
ginally taken in good faith and with good reason.
vincula literally chains or fetters; the relationship with imprisonment is
somewhat obscure.
201
BIBLIOGRAPHY
Abbreviations
For periodicals I have followed the conventions of L’Année Philologique, with the following
exceptions where either they are not listed or I have kept the normal Roman law usage (AP
version in brackets):
ACM Acts of the Christian Martyrs, ed. Musurillo

ANRW Aufstieg und Niedergang des Römischen Welt, ed. H. Temporini (Berlin, continuing)
AntCl L’Antiquité Classique (AC)
CAH Cambridge Ancient History
CIL Corpus Inscriptionum Latinarum
EFR École Française de Rome
FIRA Fontes Iuris Romani Anteiustiniani
FS. Festschrift for
ILS Inscriptiones Latinae Selectae, ed. H. Dessau
LQR Law Quarterly Review
RE Real Encyclopaedie, ed. Pauly-Wissowa
RHD Revue d’Histoire de Droit (RD)
RS Roman Statutes, ed. M.H. Crawford et al., q.v.
SLLRH Studies in Latin Literature and Roman History, ed. C. Deroux, q.v.
St. Studies/Essays in honour of
SZ Zeitschrift Savigny-Stiftung, Römanische Abteilung (ZRG)
TR Tijdschrift voor Rechtsgeschiedenis (RHD)
Accame, S. (1938) 66 RivFil, 225–34, ‘Il SC de Bacchanalibus’

Afzelius, A. (1942–43) 5 Cl.& Med., 209–17, ‘Zwei Episoden aus dem Leben Ciceros’
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227
INDEX OF SOURCES
The references in this Index are to chapters (in roman numerals) and footnotes.
Legal and Epigraphic Sources 9.18.2 VI 73

9.19.6 VII 77, 99
Bruns, Concilia, Ancyra c.1 V 182
9.27.4 VII 62
9.27.6 VII 72
CIL VI 385; 2023a,21;
9.28.1 VII 65
30751 III 105
9.30.2 VII 74
X 104 (= ILS 18 =
9.32–35 VII 58
FIRA i 30) I 2, 58, 72
9.35.11 VII 76
9.39.2 VII 70, 73
CJ 1.3.53 VII 22
9.41.7 II 125
1.14.12.5 VII 101
9.41.8pr V 59
2.58.1 VII 14
9.41.9 V 58
3.27.1 VII 62
9.41.10 VII 13
4.20.8 II 125
9.41.11 V 59, 170
4.42.1 & 2 VII 46, 47, 48
9.41.12 & 15 VII 15
5.17.11 VII 23
9.41.16 V 60 VII 96
7.24.1 VII 23
9.41.17 VII 82
9.1.14 VII 59
9.41.18 VII 13, 94
9.2.17pr IV 102
9.42.2 VII 78
9.3.2 VII 81
9.44.2 VII 12
9.4.1 VII 79
9.44.3 VII 10
9.4.6 VII 4, 5
9.47.26 VII 6, 98
9.5.1 VII 9, 56
9.47.7 VII 123
9.5.2 VII 7, 56
9.49.11 VII 71
9.7.1 VII 67
11.48.24 VII 23
9.8.6 VII 71
9.9.29 VII 63
CTh 1.1.5 VII 55
9.9.30 VII 64
1.4.2 VI 44
9.9.35 VII 15, 94
1.16.7 VI 20
9.12.9 VII 66
2.26.3 VI 10
9.12.10 VII 75
2.28.1 VI 115
9.13.1 VII 16, 24
3.16.1 VI 63
9.14.1 VIII 3
5.17.1 VI 57
9.15.1 VIII 3
6.24.2–3 VI 29
9.17.1 II 101 VII 59
6.29.1 VI 105
9.18 VI 163 VII 69
8.16.1 VI 28
228
INDEX OF SOURCES
9.1.4 VI 19 VII 61 9.27.5–6 VI 123

9.1.5 VI 101 9.27.6 VI 19 VII 62
9.1.6 VI 109 9.28.1 VI 22 VII 65
9.1.8 VI 126 9.28.2 VII 66
9.1.8 & 9 VI 106, 125 9.35.1 VI 55, 87
9.1.11 VI 107 9.35.2 VI 57
9.1.12 VI 108 9.35.6 VI 56 VII 82
9.1.14 & 15 9.36.2 VII 11
& 17 VI 111 9.37.1 VII 78
9.1.18 V 110 9.37.2 & 4 VI 112
9.1.19 VI 108, 111 9.38.5 VI 100
9.2.3 VII 81 9.38.11 VI 37
9.3.1 V 106, 110 VI 9.40.1 VI 47
104 VII 79 9.40.10 & 13 VI 89
9.3.2 V 111 9.42.2 & 4
9.3.3 V 112 &6 VI 67
9.3.4 V 111 VI 105 10.10.1–2 VI 102
9.3.6 V 111 10.10.2 VI 20
9.3.7 V 113 10.10.4 & 10 VI 110
9.4.1 VII 67 10.10.10 VI 120
9.5.1 III 57 VI 55, 87 10.10.11 & 12 VI 127
9.6.1–2 VII 80 10.10.15 VI 24
9.7.2 III 57, 103 10.15.3 VI 113
9.7.3 I 104 VII 64 11.30.8 VI 18
9.7.4 VII 15 11.30.22
9.7.6 I 104 VII 64 & 33 & 51 VI 23
9.12.1 VIII 3 11.36.1 VI 62
9.13.1 VIII 3 11.36.4 VI 96 VII 63
9.14.1 VI 156 11.36.7 VI 62
9.14.2 VI 21 VII 62 11.39.1 VI 115
9.15.1 II 101 VII 59 11.39.3 VI 116
9.16 VII 69 11.39.5 VI 117
9.16.1–2 VI 58 15.15.1 VI 10
9.16.3 VI 59 16.2.25 VI 10
9.16.4 VI 64 16.10.1 VI 59
9.16.4–6 VI 48 16.10.5 VI 42
9.16.5 VI 39, 65 16.10.6 VI 43
9.16.6 VI 66 16.10.7 VI 158
9.16.7 VI 72 16.10.9 VI 159
9.16.8 VI 73 16.10.10 & 11 VI 3
9.16.9 VI 84, 94 16.10.12.1–2 VI 161
9.16.10 VI 91
9.16.11 VI 160 Coll. 1.6 VII 116
9.16.12 VI 162 13.3 VII 117
9.17.1–3 VI 68 15.2.1 V 16
9.17.4 VI 68 15.2.2 V 19
9.17.5 VI 69 15.2.1–6 VI 60
9.17.6–7 VI 70 15.3 V 165
9.24.1 VII 17, 19
9.24.2 VII 20 c. Cordi VII 56
9.24.3 VII 21 c. Dedoken VII 2, 85
9.25.1–3 VII 22 c. Haec quae necessario VII 56
229
INDEX OF SOURCES
c. Summa VII 56 48.2.7pr-1 VI 101

c. Tanta pr. VII 84 48.2.14 III 76
8a VII 2 48.2.16 III 59
10 VII 101 48.2.20 IV 8, 69
18–21 VII 85 48.3.6.1 V 117
48.4.1.1 III 69
D 1.1.1.1 VIII 12 48.4.2 III 69 IV 145
1.5.18 V 191 48.4.3 III 16, 28
1.16.4.2 III 121 IV 11 VII 102, 112
1.16.6.3 IV 12, 14, 112 48.4.4.1 III 45
1.16.10.1 IV 16 48.4.6 III 45
1.18.3 V 24 48.4.7.3 VII 113
1.18.13pr V 24 48.4.11 III 94
1.18.13.1 VIII 4 48.5.14.5 VIII 85
1.18.14 VIII 4 48.5.14.8 VII 121
1.18.14.2 VII 118 48.5.18(17).6 IV 103
1.18.18 IV 12 48.6.7 IV 38
2.1.7.4 VII 111 48.6.10pr IV 20
4.4.37.1 IV 96 48.8.1pr II 20
9.2 VII 3 48.8.1pr-1 II 21
9.2.7.6 VII 115 48.8.1.1 IV 51
9.2.9 VII 115 48.8.1.3 VII 116
9.2.45.4 VII 104 48.8.3pr II 26
10.1.4.1 VI 145 48.8.3.2 VII 115
11.3.1.5 IV 142 48.8.3.4 IV 51
12.1.34 V 92 48.8.9 VII 104
12.5.3 IV 55 48.8.12 VII 118
18.1.46 IV 14 48.8.14 VII 116
22.3.7 V 186 48.8.15 VII 115
22.5 V 57 48.9.1 II 94, 95
22.5.3pr VIII 101 48.9.2 & 7 VII 106
22.5.13 IV 90 48.9.3–4 & 5 II 94
22.5.21.2 V 186 48.9.6pr VI 121
22.5.21.5 VII 97 48.9.9 VII 60
29.5.1.31 II 139 48.9.9pr II 100
41.3.37pr VII 111 48.9.9.1 II 80, 99
47.2.23 VII 122 48.10.1pr IV 50
47.2.35 VII 110 48.10.1.4 IV 144
47.2.52.20 VII 111 48.10.5 VII 105
47.9.9 VIII 36 48.10.9.3 IV 50, 142
47.12.3.1 VII 119 48.10.15.5 VII 103
47.15.3.3 IV 97 48.10.16pr
47.15.5 IV 98 &2 IV 144
47.15.6 IV 102 48.10.20 IV 50
47.21.2 VII 117 48.10.22pr VII 120
48.1.6 IV 8 48.11.1pr IV 6, 71
48.1.8 III 129 48.11.1.1 IV 12, 111
48.1.14 IV 95 48.11.2 IV 8, 69
48.2.1 III 127 48.11.3 & 4 IV 18
48.2.3pr III 129 48.11.5 IV 9
48.2.3.2 VI 101 48.11.6pr IV 19
48.2.4 IV 98 VI 108 48.11.6.1 IV 49
230
INDEX OF SOURCES
48.11.6.2 IV 12, 13, 122 48.19.8.1–3 V 44

48.11.7pr IV 13 48.19.8.3 V 55 VIII 1
48.11.7.1 IV 12, 111 48.19.8.4–13 VIII 56
48.11.7.2 IV 13 48.19.8.7 V 46
48.11.7.3 IV 20 48.19.8.8 V 195
48.11.8 IV 7 48.19.8.9 V 48
48.11.8.1 IV 14 48.19.8.11 V 41
48.11.9 IV 6 48.19.8.13 V 48
48.16.1.3 & 6 IV 83 48.19.9.11 V 41
48.16.1.13 IV 94 48.19.10pr V 37, 47
48.16.15pr IV 94 48.19.11pr V 39 VIII 55, 104
48.17.2pr V 141 48.19.11.2 V 39 VII 114
48.17.5 V 141 VIII 104
48.17.5pr & 3 V 86 48.19.13 V 39 VIII 55, 93
48.18 V 57 48.19.15 II 99
48.18.1pr II 123 48.19.16 V 39 VII 124
48.18.1pr-4 V 50 48.19.17pr V 45
48.18.1.1 II 122 48.19.18 V2
48.18.1.1 & 5 II 124 V 219 48.19.19 VIII 92
48.18.1.3 II 125 48.19.20 VIII 88
48.18.1.13 V 51 48.19.22 VIII 94
48.18.1.16 II 124 48.19.24 III 107
48.18.1.21 II 123 48.19.25.1 V 44
48.18.1.21 48.19.27.1–2 VIII 102
& 23–24 V 50 VIII 95 48.19.28pr V 41, 140
48.18.6pr VIII 98 48.19.28.1 V 47
48.18.7 II 123, 125 V 55 48.19.28.3 V 64
VIII 98 48.19.28.13–14 VII 98
48.18.8pr V 50 48.19.28.15 VIII 87
48.18.9pr VII 14, 95 48.19.28.16 VIII 100
48.18.10.1 V 60 48.19.29 V 45, 53
48.18.10.3 VIII 99 48.19.38.1–2 V 41
48.18.12 V 51 48.19.42 VIII 90
48.18.13 II 122 48.20.6 V 155
48.18.15pr V 54 48.22 VIII 62
48.18.15.1 VII 122 48.22.1 IV 27
48.18.15.2 II 124 48.22.2 IV 24
48.18.17.2 II 127 48.22.4 IV 27 VIII 64
48.18.18.6–8 V 219 48.22.4–5 V 141
48.18.18.7 II 126 48.22.5 IV 29, 33 VIII 65,
48.18.18.9 VII 109 69
48.18.20 II 123 48.22.6pr VIII 63
48.18.21 V 53 VIII 96 48.22.6pr-1 IV 25
48.19 VIII 62 48.22.6.1 V 141
48.19.2.1 V 141 VIII 102 48.22.6.8–9 IV 33
48.19.3 V 191 VIII 97 48.22.7pr VIII 65
48.19.4 IV 33 48.22.7.1
48.19.5pr VII 109 VIII 91 & 5–16 & 19 IV 28
48.19.5.2 VIII 8, 104 48.22.7.3 IV 26
48.19.6.1 VIII 3 48.22.7.4 IV 27
48.19.7 V 47 48.22.9–10 V 142
48.19.8.1 V 40 VIII 16 48.22.15 IV 24 VIII 63
231
INDEX OF SOURCES
48.22.15.1 V 141 30.11pr VII 38, 49

48.22.16 IV 24 42.2.2 VII 91 VIII 80
48.22.18pr VIII 65 45 VII 53
48.24.1 & 3 V 156 51 VII 37, 87
49.14.46.2 IV 10, 14 77.1 VII 42
49.16.3.11 VII 107 109 VII 53
50.2.2.2 V 170 111 VII 86
50.2.3.3 V 72 115.3–4 VII 27
50.2.6.3 IV 100 117.8–9 & 15 VII 27
50.5.3 IV 14 118 VII 54, 88
50.15.3–4 V 76 123.42 VII 22
50.16.53.2 VII 102 127 VII 54, 88
50.17.155.2 VIII 90 128.20 VII 91 VIII 80
129 VII 53
Ed. Theod. 54 VI 63 132 VII 53
134.4 VII 39
FIRA i 7: tab. Bembina/lex 134.9 VII 40
Acilia II 12 134.10 VII 41
ll. 2; 29; 75 IV 69, 83, 134.11–12 VII 41, 89
111 134.13 VII 51, 91 VIII 80
i tab Hera., l. 120
13: IV 90 139 VII 28, 32
i SC de Bacch.
30: I 2, 58, 72 141.1 VII 44 VIII 89
i oratio Claudii
44: IV 92 142 VII 46, 90 VIII 81
i SC Calvisianum
68: IV 5, 81 143 (= 150) VII 26
ll. 98–103 IV 81 144 VII 53
i 94: edictum de acc. III 57 146 VII 53
VI 102 154 VII 28, 33, 90
FIRA ii p. 421: Paul
fr.Leid.inst. 2 IV 85 NovTh 18 VII 35
FIRA iii 86: sententia Senecionis V 138
iii 189: libellus libellatici V 74 PS 1.12.3 II 124
1.12.4 V 191
G. 1.53 VIII 3 1.21.1 VI 45
2.102–8 I 73 3.4A.9 & 14 IV 32
4.6–9 VIII 86 5.4.11 IV 100, 101
4.174–75 IV 97 5.13.1–2 III 58
5.16.1–2 V 186
Inst. 4.6.18–19 VIII 86 5.23.1 II 21, 99
4.18.6 II 100 VII 60 5.23.15–17 VI 44
5.23.18 VI 146
leges regiae, Numa 12 II 79 5.24.1 II 94
5.25.2 & 13 IV 50
NovJ 9 VII 86 5.26.1 IV 38
12 VII 28 5.29.1 III 44
12.1–2 VII 29
12.3 VII 30 SC de Bacchanalibus, see FIRA i 30
12.4 VII 31
14 VII 23, 34, 87 SCPP 4–11 III 95
22.8 VII 93 15–16 III 87
22.12 VII 41 20–22 III 101
22.15 VII 27 23–24 III 74
25.2.2 VII 50 VIII 89 24–25 III 66, 86
232
INDEX OF SOURCES
28–29 III 19 Felix, 9 V 93

38–39 III 86 22 V 95
45–57 III 78 23–31 V 177
64–65 III 26 26 V 106
68–70 III 114 31 V 101, 177
71–73 III 106 Fructuosus, 1 V 159
73–90 III 108 1.2 V 94
93–105 III 110 2 V 160
100–101 III 98, 103 3.1–2 V 161
105–8 III 42, 111 4.1 V 94
119–20 III 103 6.1–2 V 161
120–23 III 112 Irenaeus, 1–2 V 197
4–6 V 198
Sirm. Const. 13 V 113 5.6 V 102
Julius, 2 V 163
XII T 8.9 VIII 35, 39 Marcellus, (M)1.1;
8.10 II 20 VIII 6, 36, 39 (N)2.1 V 163
8.12–13 VIII 37,39 Marianus & Jacobus V 158
8.14 VIII 6, 38, 39 3 V 149
8.24a VIII 39 4.3 V 94
8.24b VIII 35 12.1 V 102
8.26 I 51 Maximilian, 2.9 V 163
9.3 II 22 Montanus & Lucius, 4.2 V 101
6.2–5 V 108
9.3 V 108
Literary Sources
15.1 V 102
(Abbreviations are based on the usage in the 17.1 V 100
Oxford Classical Dictionary.) 21.12 V 108
23.12.3 20 V 157
ACM – Acts of the Christian Martyrs: Perpetua and companions
Agape, Irene, & Chione, 3.1 V 95
1.2 V 79 3.7 V 106, 109
3.1 V 94, 96, 9.1 V 100
189 15 V 191
3–4 V 192 15.5 V 100
5–6.1 V 190, 193 18 VIII 76
VIII 75 18.5–6 V 114
5.8 V 102, 108 18.9 V 103
5.8–7.2 V 196 19–20 V 215
6.1 V 102 19.5 V 103
Crispina V 205 19.6 V 119
1.1 & 3.1 V 96 21 V 119
4.1 V 97 21.9 V 103
Cyprian, 1 V 137 Phileae, Acta: 1 V 199
1.5 V 114 VII 4.1 V 99, 200
109 5.1 & 4 V 202
2 V 144, 152 5.5 V 99, 201
2.2 V 93 6.2–4 V 99, 203
3 V 153 7.3–8.1 V 204
4 V 154 8.1 V 99
5 V 156 9.3 V 102
5.4 V 102 Ep V 204
233
INDEX OF SOURCES
Pionius, 2.1 V 87 22.12.6–8 VI 33

2.1–3.7 V 89 26.1.1 VI 33
3.1 V 75, 95 26.3.1–4 VI 86
4–6 V 90 26.3.3 VI 160
7 VIII 75 27.7.5 VI 22
7.1–9.9 V 91 27.11.1 VI 111
7.5 V 193 28.1.6 VI 106
7.6 V 194 28.1.8–11 VI 86
9.1 V 97 28.1.8 & 29 VI 98
10–11 V 104 28.1.16–23 VI 94
11.3–5 V 109 28.1.16 & 28 VI 93
11.4 V 106 28.1.24–25 VI 88
15–16 V 114 28.1.26 VI 140
16.6 V 178 VII 28.1.26 & 29 VI 94
109 28.1.27 VI 160
17 V 217 28.1.28 VIII 83
18.5 V 115 28.1.36–37 VI 97
18.10 V 116 28.1.45 & 50
18.13–14 V 115 & 54–56 VI 95
19 V 117 28.4.25 VI 160
19.1 V 97 28.6.17–23 VI 12
20 V 118 29.1.4 VI 119
21–22 V 119 29.1.5–10 VI 122
21.1 V 96 29.1.10–14 VI 125
21.3 V 102 29.1.15–16 VI 119
Polycarp, 2.4 V 213 29.1.18–22 VI 127
4 V 137 29.1.23–24 VI 129
12–16 V 119 29.1.25 VI 130
12.1 V 98 29.1.27–33 VI 133
17–18 V 156 29.1.34–37 VI 135
Pot. and Bas. 2 V 194 29.1.38–40 VI 137
Scillitans, 16 V 98 29.1.39–44 VI 138
29.2.4 VI 149
Ambrose, Ep. 25 VIII 26 29.2.6–16 VI 153
29.2.17 VI 155
Amm. Marc., 14.1 VI 30 29.2.18 VI 157
14.5 VI 41 29.3.3 VI 11
14.5.9 VI 47 29.3.5 VIII 33
14.9.6 VI 36 30.4.2 VI 13, 123
15.1.1 VI 33 30.4.3–22 VI 13
15.5–6 VI 31 30.5.4–10 VI 111
15.7.2ff VI 160 31.14.8 VI 132
15.7.6–10 VI 5
16.8.2 VI 46 Appian, BC,
19.12.1–6 VI 48 1.11.95–96 II 54
19.12.7–8 VI 49 1.12.103 II 54
19.12.9–13 VI 51 1.14.120 II 57, VIII 105
19.12.14 VI 53 4.4.20 II 44
19.12.17 VI 54 Mith. 117 VIII 49
19.12.19–20 VI 25
21.1.7–14 VI 25 Apuleius, Met. 9.12 V 205
22.10.7 VI 33
234
INDEX OF SOURCES
10.22–23 & div. Caec. II 15

29 & 34 V 43, VIII 76 1.1–2.6 III 59
fam. 4.12.3 II 128
Artemidorus, Oneir. 1.21 V 205 8.8.3 IV 2
Flac. 33.82 IV 53
Asconius, inv. rhet. 1.11.14 VIII 12
in Milon. 36C III 72 2.19.58 II 19
2.36.109 VIII 12
Augustine, 2.50.149 II 81, 90
CD 6.9 I 41 leg. 2.14.35 I 50
19.6 VIII 28 2.15.37 I 50
Ep. 133 VIII 28 off. 1.14.43 II 46
2.8.27 II 46
Basil, 2.14.51 II 3
Ep. 46 VI 96 orat. 1.43.194 VIII 12
Pis. 21.50 IV 16
Bible, 36.87 IV 18
Acts 16.24 V 106 37.90 IV 16
19.19 VI 144 Quinct. II 2
22.24–29 V 51 QFr. 1.2.5 II 84
I Cor. 8; 10.14–33 V 88 Rab. Post. 5.12 IV 9
Daniel 13 VI 96 16 VIII 30
John 7.1 & Rosc. Am. 1.1–2.5 II 61
10.39–40 V 137 2.6 II 62, 65
Luke 23.39–41 VIII 2 3.7–8 II 63
Mark 15.2–5 VII 109 6.15–16 II 66
6.17–7.18 II 67
Catullus, 7.19–20 II 69, 132
Carm. 59 V 205 7.20–28.21 II 135
Chron. a. 375 VI 99 8.21–23 II 71
9.24–26 II 75, 136
Cicero 10.27 II 60
Balb. 28.65 II 14 10.27–28 II 77
Brut. 30.107 II 102 13.35–36 II 78
90.312 II 3 13.38–18.52 II 103
Caecina 10.29 II 17 18.52–19.54 II 104
Clu. 7.21 II 56 19.55 II 109
8.25 II 55 IV 90
13.38 II 32 20.55–56 II 31
15.43 II 56 20.57 IV 90
37.104 IV 17 21.59 II 110
44.125 II 51 21.59–22.60 II 111
46.128–29 VIII 7 22.62 II 114
48.135 II 105 23.64–65 II 82, 116
52.144–57.157 II 21 25.70 II 85
62.175 VIII 46 26.72 II 102
63.176–77 II 120, 126 28.77 II 60, 71,
65.182–84 II 120 119
65.182– 28.78 II 121
66.186 II 126 29.82 II 129
66.187 VIII 108 30.84 II 108
69.195–98 II 72 34.96 II 132
235
INDEX OF SOURCES
36.105–37.108 II 135 55.13.2 V 71, 125

38.109–10 II 136 55.14.1 V 127
41.119–20 II 137 56.1.1 V 75
42.123 II 138 57.1.2 V 133
43.126 II 140 58 V 133
46.134 II 141 66.4.1 V 86
50.145 II 143 67.1.1 V 121
75.10 V 84
Verr. II 1.3.7–9 76.2.2 & 4 V 140, 205
IV 14 77.2.1–2 V 137
1.6.15 III 59 77.3.1 V 140
1.25 IV 53 80.1 V 146, 148
1.36 IV 134 81 V 150
1.47.123–24 III 48 81.1.1 V 93
4.5.9–10 IV 14 de lapsis, 3 V 74
5.64.165 VIII 32
Dio Cassius,
Councils of the Church, see Bruns 40.52.2 IV 53
40.54.3 VIII 47
Cyprian, 53.2.4 I 95
Ep. 5 V 85 54.6.6 I 95
5.1.2 V 78 56.27.2 IV 31
5.2.1 V 211 57.15.8 V 16
7.1 V 85, 211 57.15.9 III 5
7.2 V 78 57.18.6 III 120
8.1.1 V 79 57.18.9–10 III 18
8.3 V 78, 131 57.22.5 IV 32
13.4.1 V 131, 142 58.4.8 III 52
13.7 V 131 58.11.5–6 III 82
15.4 V 71 61.33.6 IV 10
19.2.2 V 77 64.21.2 III 82
19.2.3 V 143 76.16 III 130
20.1 V 85
21 V 83 Dio Chrys. or. 43.6–7 IV 109
21.3.2 V 127
21.4.1 V 78, 123 Dion. Hal. AR, 2.19.2 I 98
22.2 V 105, 2.19.4–5 I 99
120, 220 6.17.2 I 19
24.1 V 130, 143 6.94.3 I 19
24.11 V 124
30.1 V 128 Eur. Bacch. 469 & 485–86 I 25
30.3 V 129
30.8.1 V 78 Eusebius,
38 V 221 HE, 4.9 V 28
39.1.1 V 81 4.15.47 V 87
39.3 V 66 5.1.14 V 219
43.1.2 V 80 5.1.27 V 105
43.3.1 V 75 5.1.28–31 V 34
54 V 122 5.1.40 V 119
55.2.1 V 126 5.1.44 & 50 V 61
55.3.2–6.1 V 80 5.1.57–62 V 156
55.11 V 126 5.1.61 V 109
236
INDEX OF SOURCES
6.28 V 84 Gellius, NA
6.39.1–4 V 83 7.14 VIII 10
6.40 V 84 10.23 II 35
6.41–42 V 84 11.18.8 VIII 38
6.42.2 V 79 14.1 V 16
6.43.3 V 132 15.11.1 V 13
7.2.3 V 132 15.11.2 V 15
7.10 V 136 15.11.3–5 V 18
7.11.3–11 & 15.28 II 1
14–17 V 139 20.1 VIII 34
7.11.10–17 V 142 20.1.7 II 22
7.13 V 162 20.1.14–18 VIII 11
7.15 V 163
8.1 V 167 Horace,
8.2.4 V 169, 172 Ep. 5.17 VI 52
8.2.5 V 179 Sat. 1.8 VI 52
8.6.8–9 V 179
8.6.10 V 180 Jerome,
8.9.4 V 168 Ep. 1 VI 96
8.9.6–8 V 204 VIII 27
8.12.3–5 V 194
8.12.10 V 188, 208 John Chrysostom,
VIII 79 hom. ad Acta Ap. 38.5 VI 149
8.15 & 16.1 V 206 or. 3.7 VI 139
8.17 V 207
9.10.8 V 169 Joseph.
10.5 V 209 AJ 18.54 III 120
mart.Pal. praef.1 V 169 18.88–89 IV 70
praef. 2 V 179 BJ 2.308 VIII 71
1.3–4 V 180 7.154 VIII 49
3.1 V 181 7.203 VIII 32
4.6 & 8 & 14 V 182
9.2 V 71 Juvenal 8.212ff II 91
13.153ff II 91
Festus p. 103L I 35
221L II 79 Lactantius,
div.inst., 5.11.15 V 214
Firm. Mat. err. prof. 6.9 I 41 5.11.19 V 32
Math. 1.7.27 II 55 MP, 7.2–4 V 33
2.30 VI 78 10–11 V 166
3.4.4 VI 79 11.7 V 67
3.4.8 VI 80 12 V 171
3.4.15 & 21 VI 79 13.1 V 169
3.6.4 VI 81 16.3–11 V 222
3.7.15 VI 82 19 V 185
4.pr-1 VI 75 21.3–4 V 59, 187
4.13.6 VI 83 21.7–11 V 41
5.30.1–3 VI 77 22.5 V 187
5.30.4–7 VI 76 23 V 33
5.30.8–15 VI 78 34 V 207
36.3–7 V 208
48 V 209
237
INDEX OF SOURCES
Livy, 2.19.13 I 19 ep./per. 68 II 81, 87

6.20 VIII 40
8.18 VIII 41 Lucian, Peregrinus Proteus, 14 V 64, 131
25.1.6–12 I 89
29.14.5–14 I 96 Lydus, mag. 3.16 V 96
31.12.8 II 86
36.36.4 I 96 Martial, spect. V 42 VIII 107
38.54–55 I 44
39.8–19 passim I3 Orosius, 5.21.1 II 55
39.8.3 I 4 II 24
39.8.3–4 I5 Ovid, fasti 6.485–550 I 36
39.8.3–5 I 25
39.8.5–6 I8 Pausanias, 9.39.5–14 I 28
39.8.7–8 I 10
39.9.1 I 12 Philostratus,
39.9.2–4 I 15 Vita Ap. V 68
39.9.5–10.2 I 16 4.35 V 17
39.10.2–9 I 17 4.47 V 17
39.11.1–2 I 18 5.19 V 46
39.11.3–7 I 20
39.12.1–8 I 21 Plautus,
39.13.1–7 I 23 Amph. 702ff I6
39.13.8–14 I 31 Aul. 406–13 I6
39.14.1–3 I 33 Bacch. 52ff; 368ff I6
39.14.3–8 I 42 Men. 828–41 I6
39.14.9–10 I 47 Persa 62–74 II 29
39.15.1–14 I 49
39.16.1–13 I 52 Pliny the Elder, HN
39.16.8 I 86 11.71.187 III 79
39.17.1–3 I 52 18.3.12 VIII 35
39.17.4–7 I 54 29.12.54 I 95
39.18.1–2 I 55 30.4.13 I 95
39.18.3–7 I 56 30.12 I 92
39.18.4–6 I 69 33.16.53 VIII 50
39.18.8–9 I 57
39.18.9 I 72 Pliny the Younger,
39.19.2 I 80 Ep. 1.5 III 56
39.19.3–7 I 84 1.20.6–10 II 110
39.20.1 I 74 2.11 IV 34
39.23.1 & 3 I 74 2.11.2 IV 37
39.29.8 I 76 2.11.3–4 IV 40
39.38.3 I 77 II 25 2.11.4 IV 117
39.41.5–6 I 77 2.11.5–8 IV 47
39.41.6–7 I 76 2.11.8 IV 48
40.19.9–10 I 78 2.11.9–10 IV 52
40.29.2–14 I 88 2.11.12 IV 49
40.37 & 43 II 25 2.11.14–18 IV 54
40.37.4–7 I 79 2.11.19 VII 131
40.43.2–3 I 79 VIII 58
40.44.6 I 79 II 25 2.11.19–22 IV 57
ep./per. 8 VIII 41 2.11.23 II 118 IV
ep./per. 48 I 91 II 25 46 134
238
INDEX OF SOURCES
2.11.23–24 IV 58 4.29 III 125

2.12.1–5 IV 60 IV 129
2.12.2 VII 131 5.9 III 125
VIII 58 5.9.3–5 IV 129
2.12.4 VII 118 5.13.5 IV 99
2.12.5 IV 131 5.13.6–8 III 56
2.19.1 & 8 II 110 5.20 IV 44, 124,
2.19.8 IV 39, 44, 150
62 5.20.1 IV 125
3.4 IV 63 5.20.2 IV 126
3.4.4 IV 23 5.20.4–5 IV 127
3.4.7 IV 65, 74 5.20.6–7 IV 128
VIII 17 6.5 IV 124,
3.4.8 II 36 IV 66 130
3.9 IV 63 6.11.1 IV 138
3.9.2–3 IV 67 6.13 IV 124,
3.9.4 IV 35 131
3.9.5 IV 68 6.22 IV 138
3.9.5 & 12–18 VIII 59 6.22.1–2 IV 140
3.9.6 IV 69 6.22.3–4 IV 143
3.9.7–11 IV 72 6.22.5 IV 146
3.9.12–17 IV 76 VIII 61
3.9.13 II 118 6.29 IV 75, 107
IV 73 6.29.8 IV 23, 63,
3.9.14 IV 44 64
3.9.18 IV 78 6.29.9 IV 34
3.9.19–21 IV 104 6.29.10 IV 121
3.9.22–25 IV 105 6.29.11 IV 128
3.9.29–32 IV 43, 79, 6.31.1–12 IV 138
149 6.31.11 IV 139
3.9.33 III 124 7.6 IV 124,
3.9.33–35 IV 87 132
3.9.34 IV 103 7.6.1 IV 133
3.9.35 IV 86 7.6.2 IV 134
3.9.36 IV 106 7.6.3–7 IV 135
4.9 IV 107 7.6.8–10 III 126
4.9.1–2 IV 108 IV 87, 147
4.9.3 IV 113, 7.6.14 IV 136
150 7.10 IV 124,
4.9.4–6 IV 110 137
4.9.9 III 73 7.33 IV 41, 64
IV 53 7.33.4 IV 23
4.9.9–13 IV 115 7.33.4–8 IV 64
4.9.14–15 IV 116 8.14 IV 44
4.9.16–17 IV 43, 117, 10.3A.2 IV 36
149 10.32.2 V 46
4.9.18–19 IV 118 10.56.4 IV 119
VIII 60 VIII 60
4.9.19 IV 49 10.96–97 V 9, 23
4.9.20–22 IV 123 10.96.1–4 V 25
4.9.22 IV 120 10.96.3 V 19
10.96.5 V 65
239
INDEX OF SOURCES
10.96.5–6 V 26 Quint. inst.or.

10.96.5 & 8 V 27 3.10.1 II 16
10.97 V 28 VI 48 III 124
pan. 35.2 III 55 5.7.9 IV 128
42.1 III 55 7.4.3 VIII 12
7.4.6 II 35
Plut. 11.3.130 III 124
Lives: Cic. 3.2–4 II 3 12.7.1–3 II 37
48.4 II 44
Crass. 6.6 II 74 Rhet ad Her. 1.13.23 II 81, 89
8 I 65
Rom. 22 II 86 Sall. Cat. 58 VIII 31
Sulla, 30.2–3 II 41
31.3–5 II 55 Seneca
32.2 II 50 apocol. 11 V 118
Quaest. Rom., 83 I 93 14.1 III 122
clem. 1.2.2 VIII 20
Polybius, 6.14.4 VIII 12 1.4.3 VIII 23
6.14.4–5 VIII 20 1.6.3 VIII 24
6.14.7 I 106 II 27 1.12.2 II 41
VIII 42 1.14.1 VIII 19,
24
Procopius, Anec. 1.15.7 II 91
1.12–13 VI 160 1.18.1–2 VIII 56
6.21 VII 88 1.21.1 VIII 21
9.39 VI 165 1.22.1–2 VIII 22
11.1–2 VII 88 1.23.1 II 98
11.21–33 VII 53 2.1.2 IV 147
11.34–35 VII 43 2.7 VI 100
11.36 VII 45 ep. 24.3 V 107
11.37–41 VI 164 ira 1.6.2–4 VIII 19
14.1–10 VII 54 1.16.2–3 VIII 24
15.22 VII 83 1.18.3 III 113
16.19–21 VII 45 1.19.5–7 VIII 6
17.3 VII 92 1.21.3 II 35
17.5–6 VII 36 2.5.5 V 40
17.44 VII 51 2.32 VIII 87
19.11 VII 43, 53 3.18.1–2 II 50
20.9 VII 43 3.19.2 VIII 9
22.32 VI 165 3.32 & 35 VIII 56
27.19 VII 92 ad M. de consol. 20.3 VII 92
28.16–19 VII 53
SHA,
Ps.-Asc. p. 99 III 59 Hadrian 16.7 VI 60
p. 125 IV 34 Tacitus 10 VII 35
Ps.-Quint. Strabo 6.2.6 V 42

decl. mai. 9.21 VIII 50
17.9 II 91 Suet.
decl. min. 274 VIII 9 Aug. 31.1 VI 143
32.1 II 56
32.3 III 123
240
INDEX OF SOURCES
33.1 II 83, 96 2.43.1–2 III 4

Calig. 1.2 III 79 2.43.3–6 III 3, 7
3.3 III 21 2.43.4 III 6
5–6 III 37 2.48.3 IV 59
16.2 III 123 2.53–54 III 12
27 VIII 67 2.55.3–4 III 8
Claud. 14–15 VIII 68 2.55.5–6 III 9
23.1 III 123 2.55.6 III 102
23.2 VIII 69 2.57.1 III 10
25.5 I 95 2.57.2–4 III 11
34.1 II 98 2.59.1 III 12
VIII 70 2.59.2–3 III 13
Dom. 4 VIII 73 2.60–61 III 12
8 III 124 2.69.1 III 15
8.2 IV 41 2.69.2 III 17
10 VI 11 2.69.3 III 18
10–11 VIII 73 2.70.1 III 19
Galba 9.1 IV 37 2.70.2 III 20
14.3 III 123 2.71 III 22
Jul. 11 II 53 2.73.4 III 23
Nero 15.1 IV 140 2.74 III 24
16.2 V5 2.75.1 III 25
31.3 VIII 72 2.75.2 III 27
49.2 VIII 30 2.76.1 III 28
rhet. i V 13, 15 2.76.2–3 III 29
Tib. 36 V 16, 20 2.77 III 30
37 VIII 66 2.78.1 III 31
51 & 57 VIII 66 2.78.2 III 28
52.3 III 92 2.79.1 III 32
52.3–54 III 120 2.79.2–80.2 III 33
60 VI 11 2.80.1 III 28
63 V 16 2.80.3–81.3 III 34
Titus 8.5 III 53 2.82 III 36
9 VIII 107 2.83 III 37
Vit. 17 VIII 18 2.85 I 95
3.1–2 III 39
Symmachus 3.1–2 & 4–5 III 36
rel. 3 VI 2 3.2.3 III 38
3.3 VI 6 3.3 & 6 III 40
38 V 151 VI 3.7.1 III 35
123 3.7.2 III 41
3.8.1–2 III 35
Tacitus, 3.9.1 III 35
Ann. 1.74 III 50 3.9.2–3 III 42
1.74.6 III 5 3.10–15 VIII 57
1.79.5 III 5 3.10.1 II 15 III 60
2.19 VIII 82 3.10.3 III 63
2.27–32 III 77 3.11.2 III 64
2.28.3 III 47 3.12.1 III 67
2.32 V 16 3.12.2 III 68
2.32.1 III 47, 118 3.12.3 III 69
2.35 III 5 3.12.4–5 III 70
241
INDEX OF SOURCES
3.12.6–7 III 71 13.33.1 IV 10

3.13.1 III 75 13.43 IV 45, 82
IV 53 14.18 IV 49
3.13.2 III 78 14.41 III 122
3.14.1–2 III 80 IV 101
3.14.2 II 125 14.48.4 VIII 5
3.14.3 III 81 15.44 V 5, 62
3.14.4 III 83 VIII 106
3.14.5 III 84 15.60.1 VIII 15
3.15.1 III 88, 99 16.21–35 VI 154
3.15.2 III 90 16.33.2 VIII 15
3.15.3 II 115 Dial. 38.1–2 IV 53
III 91 Hist. 2.10 IV 85
3.16.1 III 92
3.16.2 III 96 Tertullian,
3.16.3–4 III 97 ap. 1.6 V 218
3.17 III 66 2.7 V 28
3.17.1 III 98 2.10 V4
3.17.3 III 100 2.17 V 56
3.17.4 III 104 6.9–10 I1
3.18.2–3 III 115 12.5 V 222
3.19 III 119 15.4–5 V 43
3.23.2 III 61 VIII 77
3.25 III 49 39.6 V 222
3.28.3 III 49 50.12 V 194
3.33–34 IV 11 fuga, passim V 79
3.38.1 III 45 nat.deorum 1.10.16 I1
3.49–51 III 45 Scap. 4.3; 5.1 V 64
3.50.4 VIII 5
3.68 IV 42, The Week, 15 May 2004 V 194
148
3.69.1 IV 59 Val. Max. 1.1.13 II 86
3.70 III 45 1.3.3 I 63, 90
4.15 IV 70 V 14
4.18–20 III 121 1.3.4 I 95
4.20 IV 11 2.4.2 I 91
4.20.2 III 118 6.1.13 II 35
4.22.2 III 62 6.3.7 I 69
4.52.1 III 51 6.3.8 II 25
4.66.1 III 51 7.7.6 I 99
6.19 VI 137 8.1.13 II 116
VIII 82
6.20–21 VI 60 Vell.Pat. 2.28.4 II 47
6.26.3 III 104
6.29 VIII 15 Virgil
11.3.1 VIII 15 Ecl. 5 I 66
11.25.5–6 IV 59
13.30 IV 70 Zosimus, 4.14.4 VI 152
242
GENERAL INDEX
Usually the primary reference to a topic is to the Latin technical term, where there is one, to
avoid confusion over translations, but in a few cases a broader term seems more useful. With
names I have mostly followed common usage or my sources, e.g., Cicero not Tullius Cicero.
References to a page include the footnotes. Dates (in brackets) are AD unless otherwise specified.
abduction-marriage 162–64 aggravation see flexible penalties

abolitio (withdrawal of accusation) 89 Agrippina, wife of Germanicus 57, 58, 60–
abuse of official power 2, 73, ch. 4 passim, 1, 73
133–5, 169–71, 192; see also corruption; Albinus, Lucceius 87–89, 91, 93
repetundae album 31–32, 75
Abydum & its oracle 138 Alexander, bishop of Jerusalem 111
accomplices 38, 73, 87, 162–63, 174 allies see socii
accounts, citizens’ financial 50, 85, 87, 96 Altar of Victory in the Senate House 130–1
accusation: against the dead 86; by ‘alternative state’ 14
freedmen 145, 172; by slaves 145, 172; Alypius, brother of Olybrius 145
by women 75; formalities of 33, 35, 94, Alypius, former vicar of Britain 153
108, 150; restricted 64, 90, 103–4, 147; Ambrose, St 183
see also prosecution Ameria & its townsmen 42–43, 52, 53;
Acilius Rufus 95 decree of the decurions 43
Acta Martyrum Christianorum 2, ch. 5 amicitiam renuntiare 59–60, 66
passim, esp. 100–101, 191 Ammianus Marcellinus 1, 135–6, 180,
acta senatus 16, 66 181–82
actresses see prostitutes amnesty 123, 148, 183
actus reus 174 Ancyra, Council of 115
Adrianople, battle of 132, 136, 152 Andronicus, scholar and poet 139
adultery 36, 51, 76, 141, 145–6, 147, 162, angels 135; see also demons
166–67, 170, 176, 188, 193 animals in culleus 45–46, 169
advocates 65, 82, 94 annalists 15–16
Aebutia 11–12 Anthemius, emperor 171
Aebutius, Publius 9–15, 16, 24–5 Antistius Sosianus 180
aediles 17, 27, 33 Antonia, mother of Germanicus 73
Africa & Africans 82, 84, 85, 86, 108, Antoninus Pius, emperor 173, 181, 194
117–20, 122, 126 Anullinus 122, 126
Africanus, S. Caecilius 184 Apollo, god 26, 109
Agape, martyr 124–25, 191 apostasy see recantation
agentes in rebus 136 appeal 76, 126, 134, 196; denial of right
aggravated death penalty see supplicium, 28, 141, 163
summum Apronia, wife of Plautius Silvanus 65
243
GENERAL INDEX
Apulia 23–24 blasphemy 167

Apuleius 196 bonds, social see social stability
archaeological evidence 8, 21–22 books, magic or sacred, and book burning
Arianism 131 18, 26, 105, 121, 122, 124, 153–4, 157
Aristotle 153 boundary stones, movement of 176
Arles I (314), Council of 115; Arles II (355) branding see tattooing
131 bribery 80, 97, 113; see also corruption
Armenia 57, 58, 73, 122, 131 brothels 111, 124–5, 165–66, 191
Arpinum 40, 52 bucellarii 171
Arrius Antoninus 108 burial see funerals
arson 33, 184 Burrus, S. Afranius 97
Asclepiades see Pionius
Asia, province of 98, 108, 126 Caecilia Metella 44, 52, 55
assembly trials see iudicia populi Caecilius Classicus see Classicus
astrologers & astrology 2, 3, 4, 63, 99, Caecina Severus 73
101–2, 140–1, 157, 171; science of 142– Caelius, Titus of Tarracina 44, 49
4; see also magic Caepio Hispo 93–94
Athanasius, bishop of Alexandria 131 Caesar, see Drusus; Germanicus; Julius
Athens 153 Caesariani 118
Atinius, G. and M. 14, 19 Caligula, emperor 75, 189–90
Attalus, martyr 108 Callistratus 107
attempted crime 34, 174 Calpurnia, Piso’s daughter 72
attendants, corrupt 162–63 Calpurnius Piso, Cn. senior see Piso
attic flat 15 Calpurnius Piso, Cn. junior 70–71, 72
Atticinus, Montanus 96–7, 189 Calpurnius Piso, L., augur 65, 72
Attius, T. 48 Calpurnius Piso, Marcus 60–61, 62, 70–1,
augurs 18 72, 76
Augustine, St 16, 181, 183 calumny (calumnia) 35, 36, 48, 64, 86, 88,
Augustus, emperor 26, 31, 32, 44, 46, 50, 89–90, 145, 147–48, 155; exemption
57–58, 75, 79, 81, 153, 163–4 from 90
Aurelius Cotta 72 Campania 9, 13, 24
Aurius, Marcus 40 Canidia 139
auxilium, tribunician 22, 24, 187 cannibalism 99, 127
canon law 158
Babylas, bishop of Antioch 111 capital charges
Bacchanalians & Bacchus ch. 1 passim, 99, 21, 82; crimes 13; see also crimes of the
179, 185, 196 ordo; penalties 34, 46, 73, 105–6, 118,
Baebius Macer 93 185; see also culleus; death more maiorum;
Baebius Massa 80, 83, 86 decapitation; deportation; interdictio;
Baetica & Baeticans 86–89, 90–91 mines; penal slavery; supplicium summum;
bail see sureties see further Ceres; furca; lapidatio;
barbarians 109, 131, 132, 133, 167, 196 strangulation; Tarpeian Rock; torture
Barea Soranus 155 Capito see Roscius Capito, T.
Bassus, Julius 91–94, 97, 98, 189 Cappadocia 57, 111
bath, weekly, for prisoners 114 Caracalla, emperor 79, 92, 105
beasts, condemnation to 46, 106, 137, 186, carcer and Tullianum 113
189–90, 197 Casta, wife of Classicus 87, 88, 90–91
bedrooms 49, 69 castration 27, 167, 173, 192; see also
beneficiarii 112 mutilation
bishops 104, 109, 110–11, 114, 118, 127, casus (accident) 181, 195
157, 160–61, 183 Cato, M. Porcius 28
Bithynia & Bithynians 91–96, 103–4, 189 celibacy 135
244
GENERAL INDEX
Celsus the jurist, junior 95 coercitio 187

cemeteries 117, 120 cognitio 46, 64, 65, 67, 76, 83, 93, 188,
censors 191, 194; see also flexible penalties;
24, 102, 180 jurisdiction
Ceres 11, 18, 184 collegia 23
Cerrinius, Herennius 13; Minius 13, 19, 24 collusion see praevaricatio
Chaldaei 143; see also astrology; divination coloni 140
children see liability, diminished comites 60, 79, 87, 96
Chilo and his wife 145 commentariensis 112, 124
Chione, martyr 124 compilers (of the Digest, etc) 158, 161,
Christianity ch. 5 passim, esp. p 127, 130– 168–69, 178
1, 132; effects of 135, 183, 192 concilium provinciae 86–9, 95
Christians 3, 135, 179, 191–92, 194; as condemnation in absence, issue of 18, 85,
atheists 119, 124, 127; see also clergy; 174, 194
pagans confession (admission) 138, 148
Chrysogonus 30, 41–44, 48, 52–53, 54–55 confessors 100, 101, 104, 105, 115, 128–9
church buildings 105, 120, 121–2 confinement to Rome or other fixed place
Cicero, M. Tullius 2, 30–31, 40–1, 48, 66, 190
82, 89–90, 101, 179, 180–1, 184; confiscation 34, 37–40, 72–73, 81, 106,
speeches: 118, 121, 141, 163, 165, 167, 189
pro Cluentio 30, 31, 32, 33, 40, 49, 50; pro consecrated virgins et al 163
Publio Quinctio 30; pro Roscio Amerino ch. consilium, magistrate’s 119; imperial 96–7
2 passim, 89 conspiracy (coniuratio) 8, 17, 20, 22, 23, 29
Cicero, Quintus Tullius 45 Constans, emperor 131, 137
Cingius Severus 108 Constantine I, emperor 46, 101, 123, 126–
Cinna, Lucius Cornelius 37 7, 128, 130–31, 133–34, 137–38, 140–
citizens, Roman 2–3, 14, 20, 23, 29, 103, 1, 145, 162–64, 167, 168, 169, 172
105–8, 185, 187, 188; citizenship 5, 36– Constantine II, emperor 131
7, 105, 163, 189; loss of 81 Constantinople & citizens of 165–6, 167
civic rights 197 Constantius I, Caesar then Augustus 122, 123
civil proceedings 76, 148 Constantius II, emperor 131, 137–40, 141–
civil war 31, 55, 61, 70 42, 163, 182
clarissimi see Glossary, ‘status’ constitutio Antoniniana 105–6, 108
Classica, daughter of Classicus 87, 91 consuls 8, 17–18, 19, 25, 28, 76, 84, 92,
Classicus, Caecilius 86–9, 97, 98, 188 94, 95–6
Claudia Pulchra 64 contumacy (contumacia) 103, 194
Claudius, emperor 46, 57, 73, 75, 79, 90, contumelia 182
106, 190 convents 166–67, 173, 194
Claudius Fuscus 88 Cornelius Priscus 95
Claudius Marcellinus 84 Cornelius, Publius 24
Claudius Marcellus, M. 27 Cornutus Tertullus 84
clemency 124, 147, 181, 182–83, 194 corporal penalties 106, 168, 174, 193; see
clergy, Christian 118, 119–20, 122; see also also flogging; gynaeceum; mutilation; opus
bishops publicum; prison; vincula
clientage 35 Corpus Iuris Civilis 2, 3, 158–59, 168, 172,
Cluentius Habitus jnr 31, 48, 55 175, 180
Clutorius Priscus 63, 180 corruption in legal proceedings 32, 33, 33–
Code, Justinian’s new (CJ) 2, 137, 158–59, 4, 38–9, 47, 76, 80, 84, 85, 133; see also
159–64, 168–74; Justinian’s old (codex abuse of official power; repetundae
vetus) 158–9, 169; Theodosian (CTh) 2, council, provincial see concilium provinciae
132, 136–7, 158, 168–74, 180 Councils, ecclesiastical see Ancyra; Arles;
Codex Gregorianus 169; Hermogenianus 169 Nicaea; Sirmium
245
GENERAL INDEX
Crassus, Marcus Licinius 40, 43 delict 3, 32, 159, 169, 187, 193
crime, definition of 3, 28, 178, 193; crime Demetrius, philosopher 139
and punishment demolition as penalty 26, 62, 72; see also
crimes of the ordo see ordo iudiciorum church buildings
publicorum demons 135, 141, 142; see also angels
crimina extraordinaria 159, 169; see also extra Demosthenes, Praetorian Prefect 162
ordinem deportation 81–82, 118, 157, 187, 189, 195
Crispina, martyr 126 desertion of charge see tergiversatio
crucifixion 40, 73, 106, 123, 137, 145, 184 deterrence 166, 168, 181, 182, 186, 188,
Culcianus, Prefect of Egypt 125–6 193
culleus (sack) 44–7, 55, 146, 169–70, 185– development of law 85; see also jurists
86, 190 Digest 2, 76, 104, 137, 158–9, 174–8,
culpa 159 188, 189, 191, 194
cults, foreign ch. 1 passim, esp. 25–7; Dio Cassius 76
rulings against 18, 25–6, 27, 102; see also diocese (group of provinces) 133
druidism; Egyptian rites; Magna Mater Diocletian, emperor 101, 105, 109, 120–3,
curator civitatis (logistes) 122, 126 133, 142, 169
curatores locorum publicorum 72 Diogenes, former governor of Bithynia 153
curial see decurionate Dionysius, bishop of Alexandria 111, 116–
curiosi 136 7
curse tablets 59, 74 Dionysus see Bacchus
custom, ancestral (mos maiorum) 25–7, 51, discipline of our times, public discipline
53, 60, 102, 109, 165, 180 81, 126, 146, 183
Cyprian, St, bishop of Carthage 101, 111, discretion, judicial 191, 194; see also cognitio
115–16, 117–20, 126, 127, 128, 195 disinheritance 47, 164
Cyrene edicts see SC Calvisianum distinctions, socio-legal in Later Empire; see
also status
death, free choice of (liberum mortis divi fratres (Marcus Aurelius & Lucius
arbitrium) 182, 189; and martyrdom 100; Verus), emperors 51
more maiorum 184, 190; penalty 21, 22, divinatio in procedure of ordo 33
29, 46, 103, 105–6, 108–9, 118, 121, divination into the future 131, 140–2,
123, 137, 146, 160, 162–64, 165, 166, 144–5, 151–2, 156–7; see also magic
168, 182, 187–93; see also capital divorce 141, 162, 163, 164, 167
penalties dolus 159, 174, 175–76, 181, 195
decapitation by axe 106, 184; by sword Domitian, emperor 56, 64, 75, 88–9, 92,
106, 119, 122, 125, 126, 195 102, 133, 190
Decius, emperor 99, 103, 104, 108–11 Domitius Afer 64
decurionate, decurions 5, 46, 105, 121, Domitius Celer 61
133, 139–40; see also magistrates, Donatus, confessor 105, 128–29
municipal defence, right to a 174; dowry 163
defences of ignorance 165; self defence drugged wine 120
174, 184; superior orders 71, 76, 87–88, druidism 26
174; youth 124 Drusus Caesar, brother of Germanicus 57,
defenestration 65 61, 63, 73, 74
defensores civitatis 159–60 due process 3, 5, 55, 77, 120, 125, 128–9,
degradation from rank 72, 85, 90, 164, 138, 149, 174, 196, 197; lack of 88–9,
188, 195 146, 150–1, 152–53, 154, 156, 185,
delation as an offence 117, 140, 147–8 192
delators (delatores) 5, 35, 63–64, 92, 94, 135 Dulcitus, governor 124–5
delegation: municipal 43, 53, 133; Duronia 10–11
provincial 83, 86–89, 95; senatorial 133, Duronius, L. 24
145 duty, religious 19, 20, 27
246
GENERAL INDEX
earthquakes 111, 167 Fabian, bishop of Rome 111

East and West distinctions in the Empire Faecenia Hispala, see Hispala
115–6, 122, 123, 192; eastern provinces falsum (forgery) 9, 22–3, 24, 29, 38–9, 75–
57, 132 76, 84, 96–7
eating of sacrificial meat 111, 114 familia of exiles limited 81
economic penalties (also linked with family law 168, 173
honour) see confiscation; degradation; Favorinus, philosopher 181, 184
fines; Felicity, martyr 194
patrimonial rights; profession, bans on Felix, bishop of Tibiuca 122
practice of a; restitution fetters or chains see vincula
Edict of the Urban Praetor 36 Fidustius 149–50, 151, 152
egregii see Glossary, ‘status’ fines 81, 84, 90, 106, 166, 174, 189, 193,
Egypt 58–9, 125–6, 160–1 195
Egyptian rites 26; see also cults, foreign fire, flames, as condemnation to death by
Ennius, an eques 63 burning 106, 115, 120, 124–5, 137,
enrichment, unjustified 79, 86, 87 146, 184
enuptio gentis 25 Firmicus Maternus 16, 143–4, 196
equestrian order & equestrians 10, 19, 32, 39, fisc 64, 139, 164; see also delators
73, 79, 83, 121, 189–90; see also status flagitia (frequently unspecified crimes) 9,
equistrator 119 16, 21, 22–3, 99, 103
equites see equestrian order Flaminius, T. Quinctius 28
ergastula 40; see also prisons, private flexible or graduated penalties 83, 84, 92,
Erucius 44, 47–48, 50, 51, 52 93, 108, 178, 183, 195; see also poena legis
escape from prison or exile 160–1, 174; see flogging 83, 106–7, 165, 195
also turbulent behaviour Florus, comes rerum privatarum 164–65
Etruria 8, 9, 13, 23 Florus, procurator of Judaea 190
Euctemon, apostate bishop of Smyrna 114, foederati, meaning of 20
115 Fonteius Magnus 94, 96
eunuchs 134, 167 forced labour see opus publicum
Eusebius, bishop of Caesarea 101 foreign cults see cults, foreign
Eusebius, brother-in-law of Constantius 155 forgery see falsum
Euserius 150, 152 forgiveness 167; see also repentance
Eutropius, proconsul of Asia 152 Fortunatianus 149, 154
evidence 31, 66, 68–9, fourth century and later criminal procedure
85, 84, 93, 138, 148; as to character 31, 147–49; see also accusation, formalities
47, 50, 67; half proof and full proof 148; free persons 105–8, 121, 160, 165, 195
torture (q.v.) always required with slaves freed persons 10, 25, 41, 42, 54–55, 75–6,
50–1; see also inquisitio 105–8, 122, 145, 163
exclusion from ballot for senatorial office 85 Fronto, Catius 82, 84, 93
executioners 112, 119, 125, 146; Fructuosus, bishop of Tarragona 120, 128
executions, illegal methods 125; private frumentarii 118
as contrasted with public 22 Fulcinius Trio, L. see Trio
exile 34, 38, 64, 78, 81–2, 84, 105–6, 116, funerals & funeral rites 38, 61, 72, 119–20,
117, 160–1, 165, 166, 167, 184, 185– 122, 171–2, 192; forbidden 113, 117; see
86, 186, 189; applied to slave 27; see also also cemeteries; mourning; violation of
deportation; interdictio; islands; relegation sepulture
expiation 45, 46, 185 furca 106
expulsion of undesirables from Rome 18,
21, 26, 102, 157, 165 Galba, emperor 75
extortion see repetundae Galerius, emperor 101, 105, 109, 120–1,
extra ordinem 32, 34; extraordinary 123–4
jurisdiction 45; see also cognitio Galerius Maximus 118–20
247
GENERAL INDEX
Gallienus, emperor 104, 120 identification 122

Gallus, Caesar 131 illustres see Glossary, ‘status’
Gallus, emperor 116 immoral contracts, invalidation of 165–6
games (ludi) see gladiatorial; hunting; immunity 25, 39, 71; see also pardon
theatrical impalement 173, 193
Gellius, Aulus 181 imperium 184; maius imperium 57, 58, 73
Gemonian Steps 68 incantations, oral or written 154; see also
Germanicus Caesar 39, ch. 3 passim, esp. curse tablets
57–60; his legati 60–1 incense, offerings of (thurification) 115–6,
gladiatorial games & gladiators 123, 186 126, 156
Glaucia, Mallius 42, 52 incest 51; charge against Christians 99,
gods of Rome 7, 18, 25–7, 99, 109, 119, 127; incestuous marriages 164–5, 173
127, 185, 194; see also supplicatio index, indices see informers
Goths 109, 116 inequality before the law 197
governors, provincial ch. 4 passim, 133, infamy (infamia) 83, 89–90
171, 179; see also jurisdiction informers (indices) 16, 25, 29, 35; see also
Gracchus, C. Sempronius 32, 33 delators
Gratian, emperor 130, 132 inheritances, disputed 162; unlawful
Great Mother see Magna Mater contents 153–54
guardian(ship) see tutor, tutory inquisitio, in repetundae trials 66, 82, 83, 92,
gynaeceum 123–24 94
Gypsus 160 Institutes of Justinian 158, 169
intention (mens rea) 175–6, 184; see also
Hadrian, emperor 46, 50, 107, 169, 176, dolus
194 interdictio aquae et ignis 34, 49, 73, 78, 81–
hagiography 100 2, 106, 185
Heliodorus 149, 154–55 interpolations 168–9
Herennius Pollio 93 invalidation see immoral contracts
heresy, heretics 167, 168, 173, 191 Irenaeus, bishop of Sirmium 125
hermaphrodites 45 Irene, martyr 124–5, 191
Hierocles 153 Isis see Egyptian rites
Hilarius 149, 151–52 islands as places of exile 64, 81–82
Hispala, Faecenia 10–15, 16, 24–25 Italy & Italians 7, 9, 17, 19–21, 24, 31,
Hispanus, Fabius 87–88 36–7, 39–40, 63, 81
homicide 9, 22, 30, 33–4, 38–9, 66, 141, iudex quaestionis 33
193 iudices (provincial governors etc) 188
homosexuality 167–8, 170 iudicia populi (assembly trials) 34, 62, 185,
Homullus 93, 94–5 187
honestiores 5, 105–8, 123–4, 146, 176, 188 iudicium publicum, as any criminal court 76;
hooliganism 108 see also quaestiones perpetuae
hospitium: mutual hospitality 42; billeting ius civile 81; gentium 81, 189; gladii see
79 jurisdiction of provincial governors;
Hostilius Firminus 85 occidendi of husband 188
Hostius, Lucius 45 iustitium 19
house arrest 15, 17, 61, 150, 166
human rights 3, 5, 196, 197; sacrifice (and James, martyr 120
use of body parts) 26, 45, 59, 137, 155 Jerome, St 183
humiliation as punishment 182, 188, 191 Jews and Judaism 19, 101, 109, 135, 165,
humiliores 105–8, 146, 176, 188 168, 190
hunting games 106, 186, 188 John, Praetorian Prefect 162, 166
Hypatius, brother-in-law of Constantius Jovian, emperor 132
155 judges see iudices; jurors
248
GENERAL INDEX
Julian, emperor 127, 131–32, 136, 142, repetundis (149 BC) 31; Cornelia de falsis
180 84, 97; Cornelia de sicariis et veneficis 33–
Julius Caesar 32, 34, 39, 78, 80, 185, 186 34, 82, 186; Cornelia on the proscribed
Julius Ferox 83 38, 39, 54; Iulia de adulteriis 188; Iulia de
Junian Latins 163 ambitu (49 BC) 95; Iulia de senatu 84; Iulia
Junius Silanus, G. 98 de vi (59 BC) 64, 80, 82, 107; Iulia
jurisdiction, domestic 180, 187, 188; iudiciorum publicorum 32; Iulia maiestatis
imperial 65, 75–6, 79, 96–7, 146, 151– (8 BC) 59, 60, 62–63, 66, 73, 82, 97;
53, 188, 196; municipal 108, 113; of Iulia repetundarum (59 BC) 78–80, 82;
provincial governors etc 64, 81, ch. 5 Papia Poppaea 63; Pompeia de parricidiis
passim, 133, 159–60, 182, 188; senatorial (?52 BC) 46; Pompeia (55 BC) 84; Porcia
19, 28, 64–74, ch. 4 passim, 188 107, 187; Remnia (?91 BC) 36, 89–90;
jurists 76, 98, 104, 106, 107–8, 128, 137, Sempronia ne quis in iudicio circumveniatur
159, 170, 174–8, 179, 181, 182, 191, 33–4, 82; Valeria (82 BC) 37, 54; Voconia
193–5, 196 63
jurors, jury 31–2, 41, 75 liability 175–8, 195; diminished 174; of
jury courts, standing see quaestiones perpetuae infants 176–7; of lunatics 175–6, 180;
Justin, emperor 158, 171–2 under puberty 176–7, 184; of rustics
Justinian, emperor 2, 3, 104, 157, ch. 7 165; of women 165, 174; see also defences
passim, 180, 191–2, 193, 195 libellatici 116; libelli recording sacrifice 110,
116, 123
kidnapping 40 libellus of accusation 103, 147
knights see equestrian order Liber and Libera 7, 11, 15, 18, 25; Liberalia
knowledge contrasted with practice 102; see 7, 15, 18; see also theatrical games
also dolus Liberius, bishop of Rome 131
Libo Drusus, Scribonius 63, 67, 74
Lactantius 101 Licinius Crassus Dives, P. 27
lapidatio 184 Licinius Nepos 95
lapsi (the lapsed) 101, 115–6, 127 Licinius, emperor 126
Larinum 40 lictors 184
Latins 21; see also Junian Latins lightning 140
law, classical 169, 173; reform 32, 190, Liguria 8
196; schools 158, 169 Livia, sister of Germanicus 73,
lawyers 112, 125–6, 133, 158 Livia, widow of Augustus 57, 58, 71, 73,
leading questions 50, 107 74
legal privileges 5; ignored 73; removed Livilla, wife of Drusus 57
105, 121, 123–4; see also status Livineius Regulus 65
legal sources 158 Livy 1, 7, 15–6, 19, 23, 28, 185
legislation, general 168; in force 168; local authorities see magistrates, municipal
Justinian’s ch. 7 passim; see also lex; loss of rank see degradation
rescripts; senatusconsulta Lucius, martyr 113, 120, 127
legitimacy of children 163, 164–5 lunatics see liability
lenocinium (condonation) 167 Lustricius Bruttianus 96–7
lenones 165–6 luxuria see blasphemy; homosexuality
Leo, emperor 167, 171 Lyons, martyrs of 103, 108, 113, 119, 127,
Lepcis 82, 83, 85, 133 128
Lepida, Aemilia 65
Lepidus, M. Aemilius 65, 74, 180 Macrianus, a rationibus 116–17
Lepidus, apostate 114 magi 26, 137
lèse-majesté 170 magic 3, 4, 59–60, 67, 99, 108, ch. 6
Lex Acilia 32; Antonia (49 BC) 39; Appuleia passim, esp. 135, 140–2, 171, 192, 193;
(103 BC) 62; Aquilia 159; Calpurnia de see also astrology; poison
249
GENERAL INDEX
magistrates & officers, municipal 21, 24, Mithridatic War 37

79, 110, 111–2, 113–4, 122, 124–5, mitigation see flexible penalties
189; see also decurionate; Roman see mobs 68
aediles; censors; consuls; praetors Modestinus, jurist 104
Magna Mater 26–7, 28 Modestus 138, 149–50, 151–2
Magnentius 131, 137 Montanus, martyr 113, 120, 127
Magnus see Roscius Magnus, T. moral wrongdoing 178
Magnus, a Bithynian 95–6 mos maiorum see custom, ancestral; see also
maiestas see treason death
Malleolus, Publicius 44–45 motivation (dolus, culpa, casus) 175–6
Mallius Glaucia, see Glaucia mourning forbidden 38, 72
Manichees, Diocletian’s edict against 121 municipalities see Ameria; Arpinum;
Manlius Capitolinus, M. 184 Larinum; see also decurionate
Marcellus, martyr 120 murder see homicide
Marcian, emperor 171 mutilation as (legal) penalty 38, 124, 165,
Marcian, jurist 175 167, 168, 173, 190, 191–2; meant
Marcianus, Flavius 83–5 metaphorically 134
Marcius Philippus, Q. 8, 20, 23 mutiny see military discipline
Marcus Aurelius, emperor 121, 191, 196
Marianus, martyr 120 Naevius Matho, Q 24
Marinus, martyr 120 Naevius, playwright 15
Marius jnr 37 name change enforced 72
Marius snr 37, 41 natural justice 83, 98; see also rule of law
Marius Gratidianus 38 naumachiae 186
Marius Priscus see Priscus necromancy 137, 139, 155
marriage 25, 173; laws of Augustus Neoplatonism 135, 153–54
concerning 63, 164; see also divorce; Nepos 75
incest Nero, emperor 79, 102, 182, 190
Martiales 40 Nerva, emperor 92
Martina, poisoner 60, 62, 65, 74 New Comedy 15
martyrdom, martyrs ch. 5 passim Nicaea, Council of 101
mathematici see astrologers Nigrinus 95–96
Maxentius, Caesar 123 nocturnal rites 4, 9, 12–3, 17–18, 23, 27;
Maximian, emperor 122–3 theft 184; see also sacrifices, nocturnal
Maximilian, martyr 120 nominis deferre/delatio see accusation,
Maximin Daia, Caesar 123, 126, 191 formalities of; see also delators
Maximinus 145–6 non-citizens contrasted with citizens 2–3,
Maximus, philosopher 153 3–4, 103, 105–8, 187, 188
Mena, Praetorian Prefect 159–62 Norbanus Licinianus 75, 88–9, 91
mercy see clemency notaries see secretaries
Mesalla, M. Valerius – Niger or Rufus 55 Novels of Justinian 159, 164–8, 172–3
Mesopotamia 131, 165 noxal liability 3, 187
metallum, condemnation in see mines Numerius, military tribune 155
Metellus, Marcus 50, 53; Metelli family 41,
42 Oasis, Great 160
Milan, Edict of 126 Octavius, Gnaeus 37
military discipline 58–59, 60, 66, 67, 73; office staff 112, 118–9, 126, 160–61, 171;
service 23, 24 see also soldiers
Milo, T. Annius 186 Olybrius, Urban Prefect 145
mines, condemnation to 83, 106, 117, 121, Oppianicus jnr 48
125, 126, 188, 189, 195 Oppianicus snr 30, 33, 38–9, 47, 49, 51,
Minucius Rufus, Q. 28 55, 186
250
GENERAL INDEX
optimates 37, 42, 55 philosophers & philosophy 4, 98, 101–2,

opus publicum (forced labour) 106, 118, 123– 135, 142, 153–4, 179, 181, 185, 195,
24, 126, 188, 189, 190, 195 196; see also Neoplatonism; Stoicism
oracles 109, 138–9 Phrygia & Phrygians 27
ordinary crime 3–4, 187 pimps see lenones
ordo iudiciorum publicorum [the system] 32, Pionius, martyr 111–5, 128
64, 73, 169, 185, 189; its procedure 31– Piso, Cn. Calpurnius pater 49, 51, ch. 3
3, 48, 64–5, 67, 84, 89–90, 95; its passim, 179, 188
survival 67, 73, 75–7, 89; see also cognitio; plague 109, 116, 167
crimes; extra ordinem; quaestiones perpetuae Plancina, wife of Piso 57, 58, 60, 62, 65,
Osroene, province of 165 67, 69, 70–1
outcome, relevant to liability 175–6 Plautius Silvanus 65
Plato 181
Paculla Annia 13, 19 Plautus 8, 15, 45
paganism, pagans 130–32, 135, 136, 153– plebeians 7, 15, 18, 105; see also status
4, 168, 169; survival of 130–1; see also Pliny the Younger 2, ch. 4 passim, 103–4,
priests, pagan 179, 181–2
Palladius 149–50, 154–55 poena legis 34, 73, 93, 180, 185, 188, 189
pardon 71, 72, 103–4, 147, 148, 193 poison, poisoning 24, 34, 39, 59–60, 67–8,
parents, covering up of abduction by 162–4 75, 139, 145, 153, 184–5, 186, 193; see
Parnasius, former Prefect of Egypt 139 also Martina; Palladius
parricide 30, 33, 40, 44–47, 169, 185–6 Polemon, neokoros 111–3
Parthia 57 police force non-existent 4, 35
Pasiphilus, philosopher 152 Pollentia in Liguria 189
Paternus, Aspasius 117 pollution see expiation
Patricius 149–50, 151–2 Polyaenus, a Bithynian 96
patrimonial rights 81, 168 Polybius 179, 185
patroni (supporters at a trial) 50, 53 Polycarp, martyr 103, 111, 127
Paul, St 153 Pompey 186
Paul, the ‘chain’ 138–9 Pomponius Rufus 92
Pauli Sententiae (PS) 137 pontiffs 18, 26, 27, 185; office of pontifex
Paulinus, Valerius 94 maximus repudiated 130
peculatus 51, 134 Pontius Pilate 87
penal slavery 106, 173 popular opinion 5, 127–8; see also mobs
penalties see capital; corporal; economic; populares 37, 54
flexible; see also damnatio memoriae; populus 17–18, 25, 28, 73
demolition; exclusion from ballot for Postumius Albinus, Sp. 8, 9, 11–13, 16–
office; exile; infamy; mourning forbidden; 18, 20, 23, 24
name change enforced; relegation; Postumius, Lucius 23
rescission; shaving of head potentes 134, 171
perduellio see treason praemia see rewards
peregrines see non-citizens praetors 24, 25, 27, 31, 33, 75; de maiestate
Peregrinus Proteus 108 73; de veneficis 61; Peregrine 19, 102;
perfectissimi see Glossary, ‘status’ Urban 19, 20–21, 24, 31, 33, 102
Pergamius 149, 151 praevaricatio (collusion) 86, 88–9, 89–90,
Perpetua, Felicity and companions, martyrs 91, 148
103, 112, 113, 114, 128, 191, 194 prefects 118; Praetorian 76, 97, 133, 145,
persecution (proactive) of Christians 104–5; 149, 151–2, 192; Urban 3–4, 64, 131,
see also repression 145–46, 166, 188
Persia & Persians 120, 121, 131–2, 149 pregnancy 124, 194
Phileas, bishop of Thmuis 125–6 presumptions of guilt 160, 176; of
Philoromus, martyr 126 innocence 33, 175; legal 64, 187
251
GENERAL INDEX
priesthoods, Roman 74; priests, Christian rebus repetundis 67, 78–9, 97; de sicariis et
see clergy; priests, of mystery religions veneficis 31, 33–4, 39, 40, 45, 67, 75; see
13, 19–21, 27; priests, pagan 140; see also ordo
also pontiffs quinqueviri uls cis Tiberim 17
Priscus, Marius 82–85, 86, 93, 97, 98, 188 Quintilian 179
prison 22, 24, 113–4, 115, 129, 138, 150, Quintillianus, governor of Asia 114–5
160, 191, 193, 195; bishops and 160; Quirinius, Publius Sulpicius 65
women not to be imprisoned 166–67;
prisoners’ property 119 rape 9, 11, 36, 162; male 11, 14, 29
prisons, private 161; see also ergastula raptus see rape; ravishing
private crimes see crimina extraordinaria; ravishing (raptus) 162–4; see also abduction-
delict marriage
privileges see legal privileges recantation 103–4, 117, 127, 129, 157; see
Probus, Baebius 87–88 also lapsi
procedure see due process; fourth century; reconciliation 55, 74; see also social stability
jurisdiction; ordo; time limits reform as purpose of punishment 168, 181,
profession, bans on practice of a 90 182, 193–4; see also law reform
proof, burden of 30, 148, 175; standard of relegation 72, 81–2, 88–89, 90, 91, 97,
30, 175; see also evidence 117–18, 160–61, 189, 195
proscription and proscription lists 37–9, remand in custody 159–60
54, 63, 186 removal from Senate or curia see degradation
prosecution by magistrate, ex officio 34, 64, renounce friendship see amicitiam renuntiare
147; by private citizen, not a state service reparation see restitution
34–6, 64, 89; morally dubious 36, 48, repentance 167–8, 183
86; morally justified 35; professional see repetundae 31, 32, 67, ch. 4 passim, 188–89;
delator defined 78–81, 85; extension of liability
prostitutes, prostitution 10, 163, 165–6, for 87, 91; see also saevitia
194 repression (reactive) 99, 102–4, 108–9; see
provinces: see Africa, Asia, Baetica, also astrologers; divination; philosophers;
Bithynia, Syria; see also eastern provinces rhetoricians
provincial governors see jurisdiction; see also res repetundae, see repetundae
office staff rescission of governor’s acts 93, 189
provincials 2, 80, 88, 92, 94, 97, 98, 105, rescripts, imperial 104, 169
132, 134, 188, 190, 192; see also concilium responsibility see liability
provinciae restitution 78–79, 80–1, 82, 86–7, 93, 97,
provocatio 21, 22 189
public crimes see crimes of the ordo restitutus 147; see also pardon
public interest retribution 181, 183, 188, 193
& safety 175–6, 181, 182, 193 rewards (praemia) for delation 5, 16, 18,
Publius Aebutius see Aebutius 24–25, 35–36, 63–64, 74, 77, 89–90,
punishment 3, 166, 168, 172–4, 177–78, 92, 135; of
ch. 8 passim, esp. 180–83; illegal 83, 166 virtue 181
Pythagoreanism 26 rhetoric, Latin 101, 132, 181; rhetorical
colour 130, 137, 170–71, 180;
quadruplatores see informers rhetoricians 101–2
quaesitor 33 rights see civic; human; see also ius civile; ius
quaestio as interrogation under torture see gentium; patrimonial rights
interrogation; torture Romani, Romanitas 2, 132, 196
quaestio extraordinaria 16–18, 28, 34 Romanus Hispo 64
quaestiones perpetuae (standing jury courts) Rome 2, 9, 18–19, 24, 42, 43, 47, 50, 52,
31–3, 34, 66–67, 187; de adulteriis 75; de 61–62, 63, 101, 118, 131, 144–7, 187,
falsis 75; de maiestate 62, 67, 73, 75; de 189
252
GENERAL INDEX
Roscius Capito, Titus 30–31, 42–44, 48, Turpillianum 88–89, 90; of 161 BC 102;
51–53 of c. AD 17 102
Roscius Magnus, Titus 30, 42–4, 50–4 Seneca 179, 181, 182–83, 194
Roscius, Sextus jnr 40, ch. 2 passim, 179, Senecio, Herennius 86
185–86; see also rural life Sentius Saturninus, Cn. 60–2, 68
Roscius Sextus snr 40, ch. 2 passim, esp. sequestration 80–1
42–4, 52, 54 Servaeus, Q. 67, 74
rule of law 4, 55, 114, 117, 122, 128–29, Servianus, Julius 76
135, 172, 179, 196, 197; see also due Servilii family 42
process Severus Alexander, emperor 177
rural life, topos of its superiority 31, 47, 50 Severus Septimius, emperor 79, 92, 97
sexual abuse 165; offences 164, 165–6; see
Sabina, confessor 111–2 also adultery; homosexuality
sack, penalty of see culleus sexuality and Christianity 135
sacral law 46, 61, 185 shaving of head 126
sacrificati 116 shepherds 23–24
sacrifices: impious 73, 137, 155; nocturnal Sibylline Books 26, 45, 153
4, 137, 142, 156; pagan 105, 109, 123, sicarii 34, 39
137, 156; test of Christianity 103–5, 109, sign of the Cross 121
111–2, 114–5, 124–26; see also human Silanus, Creticus 58
sacrifice Simonides, philosopher 152
sacrilege 133 Simplicius 139
saevitia (gross cruelty) 82–83, 94, 107, 188 Sirmium, Council of 131
Salvius Liberalis 75, 84, 89, 91 Sixtus, bishop of Rome 118
Sassia 51, 197 slaves 3, 23–4, 38, 40, 50–1, 53–4, 55, 68,
Saturninus 177–8 74, 81, 90, 97, 103, 105–8, 123, 128,
scelera see flagitia 145,
science 135, 153–4; see also astrology 160, 163, 165, 167, 173, 180, 184, 187,
Scipio Africanus 27; Asiaticus 17; Publius 188, 193, 194, 195; their evidence
41, 50, 53; Scipiones 28, 42 necessarily under torture 50–1, 162; see
scribae see secretaries also penal slavery; torture
secretaries 97, 112 Smyrna see Pionius
sectores 38 social stability 31, 36–49, 55, 74, 181,
security, real as well as personal see sureties 185, 193, 196
sedition 18, 22, 59, 67 socii 19–21, 36–7; Social War 36–7, 39
Sejanus 56, 68, 70 socio-legal distinctions see status
self help 3, 35–6 soldiers 73, 112, 114, 134, 174
Sempronius Bassus 70, 73 Solon of Athens 45
Sempronius Rutilius, T. 10–11 soothsaying (haruspicatio) see divination
Senate 16–25, 26–7, 27–9, 33, 60, 61, 64– sorcery see magic
74, 131, 147; procedure in ch. 4 passim, Spartacus 22, 40
esp. 98; quorum see SC de bacchanalibus; spectacles 186; see also games
see also jurisdiction, senatorial spectabiles see Glossary, ‘status’
senatorial order 19, 31–2, 145; senators 39, standing jury courts see quaestiones perpetuae
51, 58, 75, 79, 97, 98, 144–7, 186, 188, stantes 110
190; see also status statues and portrait masks 68, 72
senatusconsulta (SCC) 18, 27, 74; SC status differences 105–8; see citizen; free;
Calvisianum 79, 82–83, 88, 92, 93; freed; non-citizen; slave; see also
Claudianum 163; de bacchanalibus 1, 7– equestrians; honestiores; humiliores;
8, 18–19, 19–22, 158; de Pisone patre 1, plebeians; senatorials; see further Glossary,
57, 68–69, 70, 74, 158; Geminianum ‘status’; women
84; Messalianum 84; Silanianum 51, 53; statutory penalty see poena legis
253
GENERAL INDEX
Stilonius Priscus 88 throats stopped with molten lead 162

Stoicism 4, 69, 180, 182, 188 thurification see incense
stoning see lapidatio Tiber, River 38, 42, 68
strangulation in prison 83, 152, 184 Tiberius, emperor 2, 26, ch. 3 passim, 79,
strator 119 81, 87, 91, 98, 102, 133, 179–80, 188, 189
street crime 3–4, 187 time limits in legal proceedings: on
stuprum 22–23 speeches 67, 84, 93; on completing the
subpoena of witnesses 94–5, 98 case 161–2, 172
subscriptores 33; see also accuser Titus, emperor 64, 197
Suburanus 76, 97 toleration 25, 126
Suetonius 99 tombs, see violation of sepulture
suicide 19, 24, 63, 69, 76, 83, 86, 184, torture 5, 107–8, 128–29, 139, 145, 172,
188–89 191; in civil cases 123, 162, 173–4,
Sulla 32–4, 36–40, 41, 42–43, 53, 55, 62, 194–5;
63 extension to honestiores 121, 123, 139–40,
Sulpicia 11–13, 15 141; as punishment 191; regulation of
Sulpicius Rufus, P. 37 50, 107, 194–95; of slaves 50–51, 107–
superior orders see defences 8, 162, 173, 193
supernatural (both religion and magic) 135 traditio see books
supplicatio (universal act of worship) 104, Trajan, emperor 50, 64, 76, 78, 81, 82, 84,
109–11 95–96, 96–97, 97, 98, 103–4, 138, 175,
supplicium summum/ultimum 106, 161, 191, 179, 181, 190, 194
195; see beasts; crucifixion; fire treason (maiestas) 28, ch. 3 passim, esp. 62–
sureties 160, 166, 63, 86, 97, 107–8, ch. 6 passim, 145,
surrender (traditio) see books 193; see also lex Iulia maiestatis
Symmachus, Urban Prefect 131, 136 tresviri capitales 3–4, 17, 19, 187
Syria 57–61, 68, 73, 108, 122, 126 Tribonian 158, 181
tribuni plebis (tribunes of the people)
Tacitus 1, 56–7, 82–84, 97, 99, 179, 181–2 22, 24, 37, 184, 187
talio 167, 181 Trio, L. Fulcinius 63, 64–65, 67, 74
Tarpeian Rock, hurling from 184 triumphs 186
Tarracina 44, 49 Tuccius Cerealis 83
tattooing 89–90, 189 turbulent behaviour when exiled 160, 174
tergiversatio (desertion of charge) 89–90, 91, tutors; tutory 10, 25
96, 148 Twelve Tables (XII T) 18, 33, 184, 195
Tertullian 181, 191
thanks voted by Senate: to advocates 84, 91; Ulpian 193, 194
to all orders of society 73–4 ultimum supplicium see supplicium
theatrical games 7, 15–16, 26–7, 106, 191, unjustified enrichment see enrichment
197 usucapion prohibited 79
theft 177, 184; at night 184
Theodora, Justinian’s wife 157, 168, 173, Valens, emperor 132, 142, 149–53, 154–6,
194 179–80, 182, 196
Theodorus 150–52 Valentinian I 132, 133, 142, 144–7, 150, 155
Theodosian Code see Code, Theodosian (CTh) Valentinian II 132, 139–40, 169
Theodosius I 132, 151, 156, 170 Valerian, emperor 99, 104, 109, 116–20
Theodosius II 132, 168, 171 Valerius Flaccus, L. 27
Theodosius, father of Theodosius I 146 Valerius Messalinus 73,
Theophanes, a Bithynian 92–4 Valerius Pudens 108
Thessalonika 124 Varenus Rufus 94–96
third century instability 133–4 Varro 16
Thrasea Paetus 155, 180 Veranius, Q. 60, 65, 67, 74
254
GENERAL INDEX
verdicts, range of 33 wills & will-making 10, 22–3, 29, 45, 81,
Verres 33, 66, 82 96
Vespasian, emperor 92 witchcraft 29
Vespronius Candidus 108 withdrawal of accusation see abolitio
veterans of the legions 5, 105 witnesses see evidence; subpoena
Vibius Marsus, G. 60, 61 women 9, 13–14, 17–18, 21, 22, 23, 57,
vicarius urbis Romae 145 58, 71, 79, 118, 123–24, 125, 146,
vicars (of dioceses) 133, 192 165–6, 166–7, 174, 184–5, 191, 193;
victims, compensation for 163–4, 166, 187; feminine frailty, topos of 29, 162;
see also delict; noxal liability; restitution Justinian favourable to 163–4, 166; as
vincula (fetters) 106, 118, 123, 138, 150, priests etc of Bacchus 13, 20–21; see also
172, 188, 189, 195 adultery; brothels; poison; pregnancy;
violation of sepulture 142 ravishing
vis (violence) 34 worship: foreign see cults, foreign; pagan
Visellius Karus 70, 73 130, 140, 142, 156; private or secret 20,
Vitellius Honoratus 83 25, 135, 140, 142; public 25, 135;
Vitellius, Publius 60, 65, 67, 74 unRoman 25–6, 27, 99
written proof see evidence
water clocks 84
weapons 133 Zeno, emperor 161, 171
255

Robinson - Penal Practice and Penal Policy in Ancient Rome-Routledge (2007)

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PENAL PRACTICE AND PENAL

POLICY IN ANCIENT ROME

This book assesses Roman penal policy through an in-depth examination of

O.F. Robinson is Professor Emeritus of Roman Law at Glasgow University.

ISBN 0-203-96554-X Master e-book ISBN

ISBN10: 0-415-41651-5 (hbk)

ISBN13: 978-0-415-41651-1 (hbk)

1 The Bacchanalian affair 7

2 Cicero, murder and the courts 30

The slaves of Roscius 53

3 The trial of Cn. Calpurnius Piso in AD 20 56

4 Pliny and repetundae trials before the Senate 78

5 Acta Martyrum Christianorum: the extension of torture 99

The ﬁrst edict, and the martyrdom of Felix 121

7 Justinian the legislator 158

8 Crime and punishment 179

informers. In the absence of a public prosecution service, delation was

technical understanding, which in turn limits our understanding of what

at Tiriolo near Bruttium,2 and from the extraordinarily lengthy account of

The cult of Bacchus

It began with the arrival in Etruria of an obscure Greek, a petty

There were initiations, at ﬁrst communicated to only a few, but

The authorities are informed

The source of the romance

Anyone who considered such a rite to be traditional and necessary,

The Senate’s resolutions

The consuls Quintus Marcius, son of Lucius, and Spurius Postumus,

nor let anyone be minded to celebrate them publicly, privately, or

Livy on the Senate’s conduct

numbers permitted to meet for worship72 was to prevent legally valid

foreign cults, of excluding petty priests and fortune-tellers from the

yet Rome celebrates them in accordance with her own traditions,

and accompanied by musicians. ‘But by a law and decree of the Senate no

crime was pursued actively by the encouragement of informers to bring the

The system of the standing jury-courts

The quaestio perpetua de sicariis et veneﬁcis

The lack of a state prosecution service and the moral

good standing to bring an accusation if he became aware of a crime; indeed,

It is a useful thing that there should be a number of accusers in the

The Social War and Sulla’s dictatorship

widow, who gave a bribe to procure abortion, who murdered his

pro Roscio Amerino: the case

house of Caecilia Metella (sister of the consul of 98 BC and daughter of Q.

Parricide and its penalty

The man who is found guilty of killing a parent is veiled, tied up

In his speech Cicero avoids detail while concentrating on the horror of

Such feeble accusations, not even attempted to be proven, said Cicero,

Not many years ago, it is said, a certain Titus Caelius, a well-

The Romans do not seem to have recognized the coldness so typical of

relation akin to ownership.124 However, it was long accepted that someone

The slaves of Roscius

We cannot avoid the conclusion that in his account of the two

In our attempts to weigh the degree of Tacitus’ prejudice, it seems to me

inclined to look for a normal rather than a sinister interpretation of his

Germanicus and Piso

at the same time been made governor of Syria, in succession to Creticus

a relapse – aggravated by his belief that Piso had poisoned him.

Germanicus, however, was well enough to write to Piso, renouncing his

[W]hen Piso was annulling [Germanicus’] decrees and maltreating

After Germanicus’ death

that treason was regularly added as an aggravating charge to such accusa-

failed to popularize marriage and the raising of families, but

Romanius Hispo he remarked: ‘Over one man he enjoyed an ascendancy; all