: BOOK II. he left Rome, journeyed to one of the federate states and became a citizen of that community. The verdict might indeed be pronounced at Rome, but it was now null and void: for no Roman assembly could condemn the citizen of another state1. Interdiction a means of prevent ing the return of the exul. Change in the con inter But the community of Rome had to be guaranteed against the chance of the condemned man's employing the right of exile a second time, and thus returning to his parent city. This guarantee was furnished by the survival of the old religious penalty, by which a man was cut off 'from the fire and water' of his tribe 2. Each year a formal bill of outlawry (aquae et ignis interdictio) was passed, by which those who had sought voluntary banishment for the purpose of avoiding condemnation, or perhaps even trial, by the criminal courts, were for ever cut off from the community. If they returned, the law offered them no protection. They were accursed (sacri) and any one might slay them with impunity. But with the new development of criminal jurisprudence ception of in the last century of the Republic, there was a marked diction; change in one of these conceptions. Exile remained what it becomes it was before, a voluntary act; it was not a punishment a penalty. but an escape from punishment, and Cicero is probably 1 There are traditions of attempts at exilium being frustrated in the case of Q. Pleminius (204 B. C.; Liv. xxix. 21 'alii, auditis quae Romae acta essent, in exilium Neapolim euntem forte in Q. Metellum . . . incidisse et ab eo Rhegium vi retractum tradunt') and in that of L. Tubulus (141 B. C.; Asc. in Scaurian. p. 23 'Is propter multa flagitia cum de exilio accersitus esset, ne in carcere necaretur venenum bibit'). In both these cases it is probable that the admission to the new citizenship had not been accomplished. 2 p. 301. 3 p. 317, note 2. 4 Cic. pro Caec. 34, 100 'Exilium enim non supplicium est, sed perfugium portusque supplicii. Nam qui volunt poenam aliquam subterfugere aut calamitatem, eo solum vertunt; hoc est, sedem ac locum mutant. Itaque nulla in lege nostra reperietur, ut apud ceteras civitates, maleficium ullum exilio esse multatum : sed cum homines vincula, neces ignominias. que vitant, quae sunt legibus constitutae, confugiunt quasi ad aram, in exilium. Qui si in civitate legis vim subire vellent, non prius civitatem quam vitam amitterent : quia nolunt, non adimitur iis civitas sed ab iis correct in saying that not a single Roman law ever ordained BOOK IT. exile as a penalty for crime. But the character of aquae et ignis interdictio had changed. It was no longer the precautionary measure, but in itself the penalty. The laws of Sulla and his successors, which established quaestiones, seem as a rule to have avoided the infliction of death, and to have made the severest punishment assume the form of interdiction. There is, therefore, only a very small and very formal degree of truth in Cicero's statement that no Roman could lose his civitas against his will1; for, though loss of citizenship was probably not mentioned in the formula of interdiction, it was the immediate result of such a declaration, since voluntary exile on the part of the condemned was the inevitable consequence of the law which ordered interdiction. The only difference between this and the earlier exilium was that now self-banishment was sought after, and not before, the sentence. A brief interval must have been allowed between the finding of the judgement of the court and its operation, to allow of the condemned man's seeking shelter against the ban, and it must have been possible for the outlaw to realize and transfer his property during this interval. Imprisonment, although playing no part in the penal Imprisonlegislation of the later Republic, was not unrecognized as recognized relinquitur atque deponitur.' Cicero's references to 'vincula' and 'neces' are fully in harmony with the comitial jurisdiction which was still in vogue. The nearest approach to exilium as a poena was made by Cicero's own lex Tullia de ambitu (p. 508); Cicero, it is true, once speaks of the penalty as exile (pro Planc. 34, 83), but elsewhere he denies it the name (Cic. ad Att. ix. 14, 2, where, speaking of those condemned under Pompeius' laws, he describes them as men 'quibus exilii poena superioribus legibus non fuisset'); and the denial is correct, for the penalty did not destroy civitas and was not, therefore, true exilium. 1 Cic. pro Domo, 29, 77 'cum hoc iuris a maioribus proditum sit, ut nemo civis Romanus aut sui potestatem aut civitatem possit amittere, nisi ipse auctor factus sit.' In Auct. ad Herenn. ii. 28, 45 we find the idea of exilium identified with that of aquae et ignis interdictio ('quasi non omnes, quibus aqua et igni interdictum est, exules appellentur '). ment not as a punishment. BOOK II. a form of punishment. We have considered it already as a mode of coercion and as a preventive measure1. In the latter, its only true judicial character, it survived in the procedure of Ciceronian times as a possibility that might under certain circumstances be resorted to, either in its pure form or, in the case of political offences and distinguished prisoners, in that of libera custodia, the practice by which the accused were handed over to magistrates or senators, who were in some way held responsible for their safe-keeping 2. It was entirely alien to Roman ideas to regard imprisonment as a definite punishment for crime, and we know of no criminal law of the Republic which threatened incarceration as a penalty. But the dependence both of imprisonment and of a trial before the people on the magisterial will occasionally gave to this precautionary measure a quasi-punitive character which survived into Cicero's day. In the matter of the deprivation of personal freedom the liberties of the Roman citizen were very inadequately guarded. If a private man detained a citizen in custody, the production of the latter might be ordered by a praetorian interdict ad exhibendum; but no such means were available against a magistrate. In this case the only method of securing the release of the imprisoned sufferer was the auxilium of another magistrate of equal or higher authority. It is ventive obvious that a conspiracy amongst the magistrates might lead to the detention of a man for an indefinite period, employed and this unanimity of action was sometimes enjoined by penalty. the senate, when it was held that the coercive measure might be continued to the benefit of the state. But pre imprison ment is sometimes as a 1 p. 333. An Sall. Cat. 47, 3 and 4 (on the arrest of those supposed to be accomplices of Catiline) 'senatus decernit uti abdicato magistratu Lentulus itemque ceteri in liberis custodiis habeantur. Itaque Lentulus P. Lentulo Spintheri, qui tum aedilis erat, Cethegus Q. Cornificio, Statilius C. Caesari, Gabinius M. Crasso, Caeparius . . . Cn. Terentio senatori traduntur.' early instance of the employment of imprisonment as a chastening influence may be found in the story of the detention of the poet Naevius. Imprisoned by the triumviri capitales for his petulant attacks on the aristocracy, he was released by the tribunes when he had expressed his penitence in poems composed during his sojourn in jail1. During the gloomy days of the second Punic war, a banker who had from time to time looked out of his office with a wreath of roses on his head was, on the instructions of the senate, haled off to a prison from which he was not released until the close of the struggle 2. During the social war we find the same means employed to meet a graver offence. A citizen had cut off the fingers of his left hand to render himself incapable of service. The senate ordered the confiscation of his goods; this was a part at least of the legal punishment 3; but it also commanded that he should be kept perpetually in bonds, an injunction which can only be regarded in the light of advice to the magistrates as they succeeded one another not to exercise their powers of auxilium. Precisely similar advice was given by Caesar in the discussion of the fate of the Catilinarian conspirators. Here, too, their property was to be confiscated, for that was part of the penalty due to the hostis; but, as an act of grace, in lieu of the death penalty, preventive imprisonment was to be perpetuated so as to become a punishment 5. His sententia closed with the rider that no further reference to the prisoners be made at the meetings of either senate or people". This, had it been adopted in a decree of the senate, would 1 Gell. iii. 3, 15. Plin. H. N. xxi. 3, 8. 'Dionys. xi. 22, see p. 326, note 1. 46 'publicatis enim bonis eius ipsum aeternis vinculis puniendum censuit' (Val. Max. vi. 3, 3). 5 p. 403. Sall. Cat. 51, 43 'neu quis de eis postea ad senatum referat neve cum populo agat: qui aliter fecerit, senatum existimare eum contra rem publicam et salutem omnium facturum.' BOOK II. : BOOK II. have been the equivalent of their strongly-worded advice to the magistrates that the affair should be regarded as closed. The provocatio and the intercessio employed in iudicia populi, not in iudicia publica. Thus it was that a part of the mere administrative machinery of the state became used for the ends of criminal justice. It was a use to which the government was sometimes forced by the decline of corporal punishment and the growth of the theory of exile; for imprisonment was almost the only method which the later Republic possessed of securing the deterrent effects of punishment without resorting to extreme measures. § 19. Appeal and restitution. In connexion with the jurisdiction of the iudicia populi appeal in the form of provocatio has already been considered, and the principles regulating that by appellatio, which have been treated with reference to civil process 2, were equally valid for criminal jurisdiction. In this sphere, as in others, it invokes the intercessio, which can only be made against a magisterial act and renders that act invalid. In the iudicia populi the veto could thus be pronounced against the introduction of the charge (nomen recipere, causam dicere), the arrest of the accused, the calling together of the comitia, the summons to vote and, finally, the execution of the sentence 3. The iudicia publica, on the other hand, were for the most part free from the trammels of the appeal. With respect to the decision of the iudices the analogy of the civil law was followed. As the appeal had never been allowed against the decision of a iudex in civil cases, so it was prohibited against that of the iudices in the quaestio. Nor could the acts of the presiding magistrate be challenged either by provocatio or appellatio, since, during the trial, p. 289 sq. For instances see Mommsen, Staatsr. i. p. 276. |