Book Review- Murder Was Not a Crime

Updated: Dec 21, 2019

Josh Hamburger

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

In Murder Was Not a Crime: Homicide and Power in the Roman Republic, Judy E. Gaughan examines the lightly-researched (and lightly-punished) segment of Roman law dealing with murder, ranging from between private citizens to public condemnations. During the time of the res publica (republic), the Roman government took a noticeably ambivalent stance against murder that reflected their structure and the attitudes of the citizens. Instead of making murder a primary civil matter, they allowed for individuals to handle the majority of these incidents in a more private matter. The government believed that it was outside of their realm of power for the majority for murder cases to deal with resolving the issues. Their whole attitude on the issue greatly reflected a broader political and societal viewpoint of focusing on the safety of the republic.

The most apparent point of the apathy Romans showed towards crime and murder especially is by the absence of any Latin word for ‘crime, murder, criminal court, and criminal law’ during the republic. Any current translations of these words do not accurately reflect the Roman position of the time. Gaughan makes it known that to even describe killing another as murder places the entire discussion out of context. Here, Gaughan attempts to separate the concept of modern murder from the Roman idea of unjustified killing for the reader.

Early Rome under the monarchy, highlighted by the second king Numa Pompilius, sought to punish those who killed their fellow citizens unlike republican Rome. However, this jurisdiction had more to do with the king establishing power and authority than it had to do with punishing a wrongdoer. By punishing murder, the monarchs established their sense of power in being able to kill the offender himself. Thus, only the king possessed the power to kill another Roman citizen, and that was only to be used in times of retribution and resolution for the safety of the kingdom. In certain regards, this ability separated the king from any other citizen or public official. In terms of power, this legal ability helped him maintain his responsibility as the middleman between the Romans and the gods. As an individual leading the Romans, the king provided power, stability, and structure in dealing with these capital offenses.

However, as the monarchy shifted into a republic, the decentralization of power drove the ‘crime’ of ‘murder’ from a public to private matter. The republic was simply too complex and far-reaching for the government to effectively deal with killings, especially given the different types of homicide. Instead of handling it themselves, they pushed much of the responsibility onto the pater familias, or the male head of the household. The belief was that by providing these men the power to kill their kin, they would in turn be more committed to the republic and its safety and security to a higher degree. However, there is little belief that these men actually practiced this freedom very often; it was more so symbolic and deterring. This individual power helped keep the government focused on much larger matters that affected the republic and posed a threat to its people. Meanwhile, the father held an ideological strength over his family to keep them as upstanding citizens, even if seldom used.

Tiberius’ nephew, Germanicus, dying under suspicious circumstances, which was most likely veneficium, or poisoning (19 CE)

Even as the Romans formulated a true basis for their law system with the XII Tables in the mid-5th century BC E, they still loosely defined punishments for ‘murder’. While they added laws on justifiable and unintentional homicide, the government still refused to explicitly regulate murder. During this time, they also stripped magistrates of their ability to execute criminals through the provocatio in an effort to further remove the government from killing citizens. Yet, the government set a modest three crimes to be punishable by death, including bearing false witness, bribing a judge, and treason. However, even then, the government rarely carried out executions, instead allowing for charged and convicted citizens to exile themselves from Roman territory. The government wanted no part in executing its citizens, much in part to how it viewed itself solely as an agency protecting its people. They did not want to carry through with the ethical and moral dilemma of killing citizens.

While murder broadly may have not existed as a crime on its own, three specific cases of homicide ventured from private to public problem, thus garnering attention from Roman law. Sicarius (dagger-wielders), veneficium (poisioning), and parricide (kin killing) all broke from the private killings and presented danger to the greater community. Thus, the government played a stronger presence when dealing with these crimes, especially starting in the 2nd century BCE with the establishment of quaestiones perpetuae, or standing criminal courts. Sicarii and venficium posed a threat specifically because of their ability to afflict death among many, even if they never carry out with their attacks. Instead, intent for their attempts to kill was enough for the republic to take action against them. Meanwhile, when dealing with parricide, especially when against a pater, those who committed it were often seen as attacking the republic. Since the pater represented the interest of the republic, killing him translated to a strike against all of the Roman people. Thus, the government felt a need to make such cases capital offenses and punishable by death or commonly exile.

Senators beating Tiberius Gracchus to death (133 BCE)

Even when high profile cases of murder occurred in the republic, such as that of Tiberius Gracchus, the government and citizens displayed an incredible amount of ambivalence towards it all. With this case, another factor plays in though that further emphasizes the importance of the republic over the individual crime. Gracchus had attempted to grant citizenship to the entire Roman peninsula, something that the Romans saw in a negative light. Thus, his death did not raise much of a cause for concern. Many in power simply found no need to prosecute his killer, while many of his followers were also brutally killed. However, the general public and others in charge saw this simply as a maintaining of the republic and thus justified homicide.

Not until the dictatorship of Sulla did a reflection of the monarchy take place, where one person held so much power in terms of legal killing. To shut down his opposition, he utilized the hostis declaration as to label them enemies of the state. In essence, they were no longer classified as Romans, and thus were not given the same government protections that others possessed. Sulla’s attempt to recapture these historic powers perhaps may have lead to the empire’s decision to truly criminalize murder, or at least provide such power to the emperors. In a way, the empire reflected this power that the monarch once held.

In reality, this book could be titled about the protection of the republic or the rights of individuals just as much as it is about murder. Almost the entire book focuses on the political implications of laws regarding who holds power and why they do. The idea of murder in the republic provides a specific point for which Gaughan builds this argument off of. The focus is on murder, but it more broadly relates to the political system in place. However, other social factors, including religion, are left out of the book entirely, and they surely could have played a significant role.

Gaughan argues that murder was not any type of concern to the Roman republic. Their feelings towards it are described as ambivalent. But it is not discussed how much of a problem murder was and how prevalent it was. Surely it existed, and thus it was certainly an issue. Yet, the extent is not addressed or how people reacted to it. The only conclusion conjectured must be that it occurred regularly enough to foster some type of narrative, but other, larger issues against the republic must have trumped it completely.

#bookreview #legalhistory #RomanRepublic #Romanhistory #AncientRome #Europeanhistory

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