Legal System

The Roman legal procedure evolved over a period of centuries. The first stage was the legis actiones which was found in the 5th century and then the law code of the twelve tables of the late 2nd century B.C. and lastly the formulary system (2nd century B.C. to 3rd Century A.D.). These laws covered aspects of every day Roman life such as crime and punishment, land and property ownership, slavery, local politics, prostitution, sexuality and commerce etc. Although these laws were created to protect the rights of people, they ended up mutilating these rights in an extremely bad manner. The elite class and the peasant class were treated differently and mostly the elite class got away with their crimes through bribery or other immoral and unethical means, whereas the peasant class was treated ferociously.

In most ancient societies, law and government were intertwined. Each ruler passed new laws and struck down the old ones to suit his own needs and beliefs. However, Roman law gradually developed as a field of its own, not merely as an extension of the will of rulers. The Roman concept of law has greatly influenced the judicial systems of many modern societies ¹ and is a contributing factor for their social and familial injustice. The Romans were one of the first people to distinguish between law and religious rules, which had reference to the relations of men with their gods, and they saw just as clearly the line of demarcation which separated it from morality, the rules of which, considered as not affecting the public interest, were obligatory only in the realm of conscience, and could be violated without penal consequences. However, the distinction between law and morality, at all times was a delicate one to make in theory, and was practiced less precisely during early days at Rome, because the law was then more exclusively customary, and there was, even among the Romans, of necessity an intermixture of law and religion, as long as political and religious powers remained united in the same hands. ²

The history of the Roman law neither began with the Twelve Tables nor ended with Justinian. It began at that unknown date when Rome came in to being and it has not ended yet. ³ A more interesting distinction, which recurs in modern law, and the credit for which belongs to the Roman jurists, is that between public law (jus publicum), regulating the organization of public authority, and the relations between individuals and the state, and private law (jus privatum), regulating the relations between individuals themselves. ⁴ In Rome, there was a crucial distinction between public or criminal law and private or civil law. Public law concerned the workings of government, the creation of laws, and the determination of which crimes were deemed to be against the interests of the state, rather than against individuals.

Laws which existed in ancient Rome have been preserved in the works of ancient authors, in inscriptions and on papyri. The Roman code of laws was the Twelve Tables published around 451–450 B.C. and was a set of legal rules rather than a codification of the law. It was drawn up by a board of ten men (decemviri legibus scribundis, ten men for writing out the law). The Twelve Tables survive only in fragmentary references and quotations, and not as a full text. ⁵ They were known as the twelve tables because the text was engraved on twelve sheets of bronze and could be read by all and sundry. ⁶

The constitution of the Roman Republic was substantially an unwritten law ⁷ and there was no written law before the Twelve Tables. Up to that time, and consequently during the whole of the period under consideration, the law was exclusively unwritten and exclusively customary (jus non scripturn, mos majorum). ⁸ It consisted of precedents, i.e., adjustments reached in the political field at the close of political conflicts. Of those adjustments a part, but only a part, was incorporated in declaratory statutes. In establishing their Republic, the Romans retained their ancient elective kingship for ceremonial purposes, housing the King of the Sacra in the old royal palace and treating him as head, or rather as figure-head of their state church. The real powers of the king- ship they entrusted to officials elected by political parties. ⁹

In those days, justice was a collection of rites and law in the form of a sacred text. The plaintiff pursued with the law. By the text of the law he seized his adversary: but let him be on his guard; to have the law on his side, he needed to know its terms, and pronounce them exactly. If he spoke one word for another, the law ceased to exist for him, and could not defend him. Gains gave an account of a man whose vines had been cut by his neighbor; the fact was settled; he pronounced the law. In that case, the legal term was trees; he pronounced vines, and lost his case. The legal formulas, like those of religion, were kept secret. They were concealed from the stranger, and even from the plebeian. This was not because the patricians had calculated that they needed to possess a great power in the exclusive knowledge of the law, but because the law, by its origin and nature, long appeared to be a mystery, to which one could be initiated only after having first been initiated into the national worship and the domestic worship. ¹⁰ Gradually the Romans themselves felt their way to the scientific notion of a law independent of religion and distinct from morality. ¹¹

Formation of Law

From 753 to 510 B.C., Rome was ruled by a series of kings, who held supreme authority and were responsible for creating most of the laws. Law, based largely on Roman custom, was used to settle disputes between families or to resolve religious controversies. During the Roman Republic, the powers formerly held by the king were placed in the hands of two government officials called Consuls. New laws were proposed by the consuls and voted on by an assembly of male citizens. During the early Roman Empire, the emperor Augustus withdrew the power to make laws from the assembly and gave it to the Senate. Augustus established the practice of rule by imperial decree—meaning that the emperor's proclamations, when confirmed by the Senate, became law. Later emperors gradually reduced the Senate's authority. By A.D. 200, decrees became law without Senate confirmation, and the emperor had become the supreme legal authority in Rome. ¹²

Roman legislation was transformed with the government and the social state. Gradually and in almost every generation, some new change took place. As the lower classes progressed in political order, new modifications were introduced in the rules of law. First, marriage was permitted between patrician and plebeian. Next, it was the Papirian law which forbade the debtor to pledge his person to the creditor. The procedure became simplified, greatly to the advantage of the plebeian, by the abolition of the actions of the law. Finally, the praetor, continued to advance in the road which the Twelve Tables had opened, and traced out, by the side of the ancient law, an entirely new system, which religion did not dictate, and which approached continually nearer to the law of nature. ¹³

The Twelve Tables did not long remain under the eyes of the Romans in their original form because there was a strong possibility that they were burnt when the Gauls sacked Rome or carried away the booty. They were reproduced afterwards, as were the other public documents, with essential fidelity, no doubt, but in a form already modernized; and a like process of modernization seems to have been repeated at several subsequent periods. In this form, which was not of any very precise date, they were the subject of numerous legal commentaries, of which the latest was that in six books written under the Antonines by Gaius. ¹⁴

In the period between the Twelve Tables and the end of the Republic, the law-making organs multiplied themselves coincidently with the coming into being of the science of the law. The sources of law were, not only custom, which kept their old character of an independent source. They were also able to create new law and to abrogate existing law, to introduce new rules, and extinguish established rules. ¹⁵

The jus (ius) civile was originally the body of law that applied to the citizens of Rome; jus (ius) gentium was the body of law that applied to ‘foreigners’ in their engagement with the citizens of Rome; jus commune was the ordinary law which gave its name to the ‘common law’. The tabelliones ¹⁶ drafted Roman legal documents. Following the edict of Emperor Antonius Pius (86 A.D.-161 A.D.), the tabelliones became entitled to a salarium (salary). Justinian introduced new regulations for the Corpus Juris aimed at giving the profession of tabellio a systematic sense of organization.

Justinian became emperor in 527 A.D. and he ordered his chief jurists to extract the best and most reliable sections of the earlier Roman texts for inclusion under appropriate headings in a Digest. All prior texts were to be destroyed throughout the Empire with the purpose of eliminating error. The Digest was ready by 533 A.D. Justinian also directed his jurists to prepare a textbook for law students called Justinian’s Institutes which was completed by 533 A.D. The following year Justinian’s jurists completed a final version of all the Imperial statutes known as the Codex. The texts known at the Digest, the Institutes and the Codex became generally known as the Corpus Juris Civilis, the ‘body of law’. Subsequently the law of Justinian became the bedrock of the law of the continent of Europe. ¹⁷

After 287 B.C., the people controlled legislation with their resolutions (plebiscita). The comitia centuriata rarely legislated after 218 B.C. Senatorial decrees (senatus consulta, often written as one word) were strictly only advice to magistrates but were generally binding, and edicts of magistrates with imperium ¹⁸ and interpretations of jurists also had the force of law. Under Augustus, plebiscita and leges continued to be passed in the popular assemblies, but may have been proposed by the emperor. By the end of the 1st century these popular statutes were no longer being passed by assemblies. From the early empire senatus consulta appear to have acquired an undisputed legal status, though possibly influenced by the emperor. The Senate became practically the only legislative body, and senatus consulta continued to be important to the 3rd century. ¹⁹

Being a judge (iudex) in a Roman criminal or civil trial did not mean being a legal professional; most judges were laypersons specifically appointed--to hear and decide particular trials. But this was a public duty that was often imposed on, especially, the elite. Ordinarily, if both parties to a civil lawsuit agreed on who they wanted to judge their case, the praetor would name that person. If an iudex was named on the basis of the agreement of the two parties, then the iudex is the person they intend even if they make a mistake on the person’s exact name However, the praetor enforces certain broad requirements for naming judges, one of which, is that an iudex cannot be a child (impubes). If the parties settled on a child, then as long as they did so knowing the boy’s age, his decision was binding. ²⁰

The people who probably exercised the greatest long-term influence on Roman law were the jurists. Jurists held no official positions, but they were experts in the law. They gave unpaid legal advice to private citizens, judges, and magistrates. In early Rome, legal interpretation had been the duty of the pontiffs, ²¹ who had come from the patrician class. By the 1st century B.C., prominent jurists were usually knights of the equestrian order, rather than senators. During the empire, Augustus encouraged the separation of law from government and politics. He established a special class of jurists, known as juris-consult, who had the power to interpret the law and was backed by the emperor. Under the emperor Hadrian, who ruled from A.D. 117 to 138, the opinions of the jurists were officially given the force of law in any case in which they reached a unanimous opinion. Where the jurists' opinions differed, a judge was free to choose which opinion to follow to decide the matter. ²²

Courts

By tradition, the father was the supreme power within the family, and the state rarely interfered in domestic matters. ²³ Roman family law was primarily directed toward economic issues. Spousal and child abuse, for example, was a norm in the Roman world but were rarely mentioned in the Roman legal sources. ²⁴ One of the devices of Roman public law for limiting governmental power at home was an elaborate system of checks and balances. The power of almost every official was limited in its practical exercise by the independent and possibly opposing powers of other officials. ²⁵

Cases could be tried by the kings and later by magistrates, with rights of appeal to the assemblies. In certain cases, special courts could be set up by the Senate, and permanent courts began to be set up from the mid-2nd century B.C. Under Sulla the number of permanent standing criminal courts was increased, largely for the trial of crimes such as treason and bribery committed by the upper classes. These quaestiones ²⁶ were presided over by praetors and continued into Augustus’ reign, but ceased to exist by the 3rd century. Instead, the Senate became a supreme criminal court, and major political and criminal cases involving senators were tried before it. Other criminal cases were handled by the civil courts and the emperor also tried cases. In addition, courts were set up under the urban and praetorian prefects. The centumviri (hundred men) at Rome was a special civil court involving inheritance and property claims. ²⁷

The praetor, in an effort to take account of his own position and to preserve his dignity and social position, issued rules on the sort of persons who could appear in his court and apply for actions or defenses. Certain persons (e.g., minors and the deaf) could not appear at all and therefore always had to be represented by others. Others could appear for themselves but could not represent others; in addition to women, also included in this class were the blind and passive homosexuals, those who had been condemned on a capital charge or for bringing a malicious criminal charge against others, gladiators, and those who had fought wild beasts in the arena. ²⁸

In the republic around 105 men (3 from each of the 35 tribes) were placed in the courts but that number increased to 180 in the empire which were divided into four courts. In the provinces there were no standing courts, and so the governor toured the cities, and heard criminal cases at assize centers. Civil cases were referred to the courts run by local authorities, but they had no jurisdiction over Roman citizens. In the imperial provinces, Roman citizens who were tried by governors could appeal to the emperor, and this privilege was extended to senatorial provinces. ²⁹

Rome had no public prosecutor as such, so that the criminal law system depended heavily on the initiative of private persons indicting wrongdoers before the authorities. Women were excluded from bringing criminal charges except in cases involving their parents, children, patrons, patron’s children, or patron’s grandchildren. Women were not allowed to witness a will, but they were permitted to give evidence in criminal (and civil) cases. ³⁰

Judicial System

In this regard, three different systems occurred in succession. None was completely isolated from its neighbor; there were overlaps right down the period. But each of the three phases had a dominant system which determined what criminal acts were charged, the procedure by which charges were tried and, most important of all, and the punishments which were imposed. The first phase was that of the judicium populi, trial by magistrate and people. A magistrate, in most cases was a tribune of the plebs, conducted a preliminary examination, at the end of which he brought the accused before the popular assembly. The magistrate proposed a penalty, which was either capital or sub-capital, in his discretion; if it was a fine, he stipulated the amount. After hearing speeches, the people voted on the proposal. The salient fact was that there was no fixed penalty; it depended on the magistrate’s discretion and the endorsement by the people. The first phase was at its peak until the mid-second century B.C., after which it started tailing off; by about the mid-first century it was obsolete. It was supplanted by the judicium publicum, trial by jury. Starting in the mid-second century, a series of permanent courts, each consisting of a magistrate sitting with a jury of about fifty, was put in place. This system dominated the trials of the first century B.C. and continued into the Principate, though with gradually decreasing importance; it ceased to exist in the first quarter of the third century A.D. One of its most important features was its reversal of the punitive system of its predecessor. Instead of discretionary penalties, a poena legis, a fixed penalty, was laid down by the statute that created the court in question. The third phase was that of the cognitio extraordinaria, or cognitio extra ordinem. Its introduction coincided with the foundation of the Principate by Augustus. At first concurrently with the jury-courts, and eventually without them, criminal justice was dispensed by a number of new jurisdictions. The senate conducted trials, thus exercised a function that it had not possessed in the Republic. The emperor did the same, and in two ways. He tried cases in his own court, and he delegated trials to his subordinates, the most important of whom were the urban and praetorian prefects and provincial governors. ³¹

Each standing court in Rome (called guaestiones perpetuae) was presided over by a praetor. A jury was assigned to each case. The presiding praetor kept order during the trial, but he did not interpret the law or address or instruct the jury. The jury voted without deliberation. If found guilty, a person was required to pay a sum of money—the amount determined by the praetor. Politics and bribery sometimes influenced the legal process, and persuasive speeches were used to try to sway the jury's opinion. The famous Roman statesman Cicero, for example, delivered all his judicial orations before the criminal courts. ³² This shows that the Romans were least bothered about the delivery of justice, and were more concerned about their personal benefits.

From the late Republic onward, there were various standing criminal courts available in which crimes against person and property could be tried. In the absence of public prosecutors, it fell to private individuals to bring prosecutions. Social position and wealth were again very relevant here, since they afforded access to legal advice and representation, the manpower physically to bring a criminal into court, not to mention a chance of being taken seriously by judges and jurymen who would be members of the elite. In this second sense, therefore, social status was relevant to self-help against criminals. ³³

Civil trials were decided by an index, who was assigned by the praetor. The index was a private citizen who knew the law, and whose judgment both parties agreed to accept. His recommendation to the praetor was then given formal confirmation by the praetor and became binding. The basic judicial procedure of trial suits between citizens (called legis actiones, or ‘actions in law’) was a two-step process. A person first presented his case before a magistrate using a specific language known as a formula. This stage was intended to determine the nature of the case. The formula for each type of case was very precise and, unless the correct wording was used, the case might be dismissed before it ever went to trial. In the second stage, the magistrate appointed (with the agreement of both parties) a private citizen to act as judge and to rule on the case, subject to the magistrate's approval. ³⁴

The new courts took as their benchmark the public criminal laws pertaining to the jury-courts, but were free to depart from those laws in two ways. They could add to the categories of wrongful acts that could be charged under a given public criminal law. And they exercised a discretion on punishment. The poena legis for a crime could be applied as laid down by the statute or it could be mitigated or intensified in the discretion of the sentencing authority. The principal agent in the exercise of these discretionary powers was the emperor himself. He performed that function through what are generically known as ‘constitution’. The emperor could define additional categories of crimes, and new penalties, in four ways. He could issue an edict; he could reply to both official and private petitioners by rescript; he could hand down verdicts in trials over which he presided; and he could give mandates to officials, especially governors. ³⁵

A new procedure, called the formulary system, was established around 177 B.C. to allow greater flexibility in the first stage of the judicial process. Under the formulary system, the disputants in a lawsuit met with the magistrate to draw up a formula, or statement of the precise dispute or law, based on the specific case. Only when the formula was agreed upon by both parties did the case go before a judge. The new system ensured that complex legal language was not a barrier to justice, and it allowed for the creation of new formulas beyond those recorded in the Twelve Tables or those that had been added since. During the empire, a magistrate or other delegated official conducted the investigation. There were no stages in the process and no private index. There was, however, the possibility of appealing a decision, which had been unavailable during the republic. Appeals could be made to a higher court or to the emperor, and original decisions were sometimes overturned ³⁶ especially when the accuser had some relationship with the family members of the judges or influential people.

Priests as Judges

Priests were also made judges in many cases and the records show that they gave many wrong decisions. All disputes regarding marriage, divorce, and the civil and religious rights of infants, were carried to their tribunal. They were judges in cases of incest as well as of celibacy. As adoption affected religion, it could not take place without the consent of the pontiff. To make a will was to break the order that religion had established for the transmission of property and of the worship. The will, therefore, in the beginning, required to be authorized by the pontiff. As the limits of every man's land were established by religion, whenever two neighbors had a dispute about boundaries, they had to plead before the priests called fratres arvales ³⁷ who used to decide the matter according to their will which was generally tilted towards those people who were influential and rich people because after giving the decisions in their favor, they used to enjoy personal benefits from these people.

Crimes and Punishment

In the Early Republic the primitive code known as the Twelve Tables prescribed fixed penalties for some crimes. Stealthily pasturing animals on another’s crops by night earned the offender death by hanging, which at a later age was considered harsher than the penalty for homicide. For deliberately setting fire to a barn or a heap of grain, the culprit was burnt alive; and for incantations that either cast a spell on someone or charmed away his crops the perpetrator was beaten to death. There was no general formulation of penalties in early legislation. Acts considered especially dangerous were singled out for ad hoc sanctioning. According to Cicero, the Twelve Tables decreed a capital penalty for very few crimes. But when it did so decree, the method of execution was clearly spelled out. ³⁸ Punishments such as these depict the savagery of the moderate and enlightened Roman Empire.

Many crimes were capital offenses (such as treason), and lower-class defendants were more commonly executed than their upper-class counterparts. There were many non-statute offenses, and provincial governors could fix penalties at their discretion, and so justice varied from province to province and person to person according to his/ her financial status. In the 3rd century Roman citizens were divided into two classes for criminal jurisdiction—the honestiores, ³⁹ and the remaining citizens—the humiliores. ⁴⁰ Punishments for honestiores were far less severe. Lawyers did not receive fees. Legal services were paid for not with money but with political help. It was therefore important for aspiring politicians to provide legal assistance to as many people as possible. ⁴¹

By the era of Sulla's reforms in the Roman Republic, around 80 B.C., the list of public crimes had been expanded to include more serious offenses against life, such as serious injury, or against private interests, such as the falsification of wills and documents. Serious moral violations, such as adultery, came to be considered public crimes as well. Punishment for public crimes was severe. Under the Twelve Tables, criminals were burned if convicted of arson, crucified for using magic on crops, or drowned in a sack for murdering a parent or close relative. During the republic, a convicted criminal might avoid execution by going into exile. During the empire, convicted persons had some or all of their property confiscated and their citizenship revoked. They might also be condemned to labor in public works or in the mines. Working in the mines was considered the most severe sentence of all—second only to a sentence of death. Imprisonment was not used as a punishment. By the early A.D. 100s, penalties for the same crime often varied according to the convicted person's social status. Persons of lower rank were often punished more severely than those of higher rank. ⁴²

In the Late Republic there was, both in public opinion and in the minds of legislators, a desire to reduce the incidence of death sentences. That desire was inspired by humanitas, the civilizing instinct that is one of the hallmarks of the Roman ethos, both in the Later Republic and, at times, in the Principate. In the Republic, the impulse was given practical expression in two ways. First, sentence of death continued to be pronounced, but there was a convention under which the condemned person had access to voluntary exile. By managing, with the connivance of the government, to leave Rome and Roman Italy he was safe. If he ever returned, he would be put to death, but in practice the facility made all the difference to his future prospects. Then, in the first century B.C., the convention was given formal expression by being written into some of the criminal laws. ⁴³

The Roman private law itself was nominally egalitarian and seldom based upon overt differentiations of social class and wealth, and although the law is likely to have had some impact on the lives of persons well below the ranks of the elite, nonetheless there are solid reasons to believe that the outlook, values, and interests of the upper classes (from whose ranks the Roman jurists were overwhelmingly drawn) were crucially important in shaping both the overall texture and the specific rules of classical Roman family law ⁴⁴ which automatically made them biased and unjust for the middle and the poor class.

Fines

The aediles ⁴⁵ added a new dimension to punishment. When they imposed a fine, they often used the proceeds for a munus, a public service to the Roman people which would both benefit the community and stand as a monument to the aedile’s term of office. In 295 A.D. an aedile raised so much money from prosecuting patrician women who were trading as prostitutes that he built a temple of Venus which was still standing in Livy’s day. Thus, the moral issue, the provision of a communal amenity and the glory of the aedile were all fostered by criminal punishment. ⁴⁶

Punishment of Slaves

Ancient custom ordained that when a slave killed his owner, all slaves living under the same roof would be executed. Even though so many of them were women and children whose innocence was obvious, the Senate resolved to adhere to this practice, ignoring massive public protests and appeals for mercy: all four hundred of Pedanius’s household slaves were executed ⁴⁷ which shows that even the most educated and rich people of ancient Rome were not much different than self-centered terrorists in the form of angels and guardians.

Discrimination

Suetonius says that many men of status (honesti ordinis) were branded and sentenced to the mines or hard labor, or were thrown to the wild beasts in the arena; some were shut up in cages or sawn in half. They were usually reserved for the lower orders, the humiliores, but Suetonius applied them to honestiores. This, however, does not discredit the evidence, for later jurists know of cases where the dividing-line was crossed. But Suetonius gilds the lily by citing the case of a Roman knight who was condemned ad bestias i.e. a capital punishment in which the condemned person was killed by wild animals, but loudly protested his innocence, whereupon his tongue was cut out and he was thrown back to the beasts. However, even here there was a precedent, for Cicero notes that a slave who had not given the evidence that his mistress expected had his tongue cut out prior to being crucified. Condemned criminals were exposed to it at the Games, victims being chosen from deserters and slaves sentenced to death by their owners. But even at that humble level the practice was criticized. One of Cicero’s correspondents is highly critical of Caesar’s lieutenant, Balbus, who threw Roman citizens to the lions in Spain. ⁴⁸

Parricide

It was the traditional punishment according to which the condemned person was beaten with blood-colored sticks, then sewn up in a sack with a dog, a rooster, a viper and a monkey, and thrown into the deep sea, if the sea was nearby; otherwise, in accordance with the law passed by the deified Hadrian, he was thrown to wild beasts. ⁴⁹

Exile

Exile was not a capital punishment; it was an escape from punishment. Those who would avoid imprisonment, death or disgrace (ignominia) looked for refuge in exile as if at a sanctuary. If they remained in Rome, they would only lose their citizenship when they lost their lives. But when they went into exile, they did not lose their citizenship by law, they were stripped of it by their own act of abandonment. The fugitive lost it as soon as he became an exile, that is, when he acquired the citizenship of the other state. ⁵⁰

Unpaid Debts

The manus injectio was a procedure in which the creditor solemnly seized hold of his debtor in the presence of the magistrate, in order to take him home with him as a prisoner, and proceed later to his death or to his reduction into slavery, unless a third party (vindex) intervened to oppose it. It took place before the magistrate. ⁵¹

Punishment for Making a Joke

Suetonius reports that a writer of Atellan farces was burnt alive in the arena because of a joke with a double meaning. The penalty of being burnt alive, of vivus exuri or vivi combustion, was old enough; the Twelve Tables had authorized it in retaliation for deliberately setting fire to a barn or a heap of corn. Subsequently there was a harsher penalty if the crime was committed in an urban area. But no standard penalty replaced the poena legis. ⁵²

Rape

For the Romans, all sexual assault, including rape, was treated as a crime, though the legal charge was mostly obscure. Part of the reason for this legal ambiguity was the fact that for women of the right class, namely freeborn Roman women, a variety of both civil and criminal legal charges could be brought for rape. One legal charge for rape was a crime for physical assault including for purposes of lust. Another legal charge covering rape was stuprum, ⁵³ which covered any irregular or promiscuous sexual act including acquaintance rape, seduction, and homosexuality, as well as forcible rape. Additionally, later in Roman history, the charge of raptus could be used to prosecute for rape, abduction, or seduction of unwilling women otherwise most of the women were themselves convinced to commit adultery with their loved ones. Also, rape as iniuria, ⁵⁴ insult or outrage, could be charged by either the victim or the male guardian because iniuria covered attempts upon chastity. As for the rapist, the development of criminal procedures was gradual and largely ad hoc, and so penalties followed the original tradition of self-help. If the early legal process was used at all for rape, most likely it would have initially been only for redress of damages. ⁵⁵

Sexual Violence

While rape of Roman citizens had repercussions, forced sexual intercourse in other contexts was not even considered rape. Roman sexual legislation emphasized this through the application of rape laws only to those of a certain social status since the law did not recognize slaves as having legal standing, a master or his sons could satisfy their sexual desires by force or persuasion upon a slave. Moreover, because the Roman slave was merely a piece of the owner's property, slave owners could order their slaves to submit to the demands of others and could hire their slaves out for sexual services. Prostitutes also had no or very limited legal redress against rape, and the Digests ⁵⁶ seem to permit the rape of a prostitute. In fact, Cato refers to a pronouncement which exempted prostitutes from protection against the legal charge of vis as forcible rape. Most likely, a prostitute's only action against rape would be a charge of iniuria. Finally, another context in which rape was the norm, or at least there was no legal recourse, was during war. ⁵⁷

Capital Punishment

An execution was a public occasion to which the populace was summoned by trumpet, there to be regaled with the spectacle of criminals being decapitated, beaten to death, drowned in a sack, hurled from the Tarpeian Rock, burnt alive, or thrown to wild animals. As most methods required the victim to be stripped, women were executed in private in the interests of modesty. Even when the Pontifex Maximus merely whipped an unclad Vestal Virgin for a minor fault, he did so from behind a curtain. But curtained modesty cannot hide the fact that women were put to death by being strangled, after those who were virgins had been deflowered by the executioner shamelessly. ⁵⁸

Crucifixion

The busiest roads were chosen for the crucifixion of criminals, so that as many people as possible may see them and take warning, for punishments are aimed less at the crime itself than at setting an example. It was a widespread practice to hang notorious highway robbers in the places where they used to prowl, so that others may be deterred from committing the same crimes and the families of their victims can draw comfort from their being punished where they committed the murders. ⁵⁹

Corruption in Courts

Through the power of corruption, the services of the administration became hereditary and the Senate was turned into a tool of the party that held the power. The resources of the vast Roman Empire, law and religion were used for the senators' own interests. The Senate controlled the Supreme Court and the Judiciary Committees which were established to judge the acts of corruption. Thus, holding immense fortunes had become indispensable for all those who aspired to maintain their political or social positions ⁶⁰ because the judges and the senators needed to be bribed whenever they committed an illegal or immoral action including murders, rapes and other heinous crimes.

The legal system of the Roman Empire, although seems extremely modern, lacked the basic rules which could have enabled Rome to become a crime free, socially strong and morally superior nation. The main reasons for this lacking were that the Romans were more inclined towards man-made pagan religions rather than the divinely revealed one. Secondly, the laws created were more for personal gain of the elite rather than the welfare of the people. Consequently, the created laws were biased and cruel towards the poor and easy or non-existent for the patrician class. With such laws, creation of a strong nation was impossible because these laws created hatred in the hearts of the plebs for the ruling elite and this hatred was one of the reasons which led to the disintegration of the Roman Empire.

• ¹ Carroll Moulton (1998), Ancient Greece and Rome, Simon & Schuster Macmillan, New York, USA, Vol. 1, Pg. 195.
• ² Paul Frederic Girard (1906), A Short History of Roman Law, Canada Law Book Company, Toronto Canada, Pg. 6.
• ³ Munroe Smith (1904), Columbia Law Review: Problems of Roman Legal History, Columbia Law Review Association Inc., New York, USA, Vol. 4, Pg. 523.
• ⁴ Paul Frederic Girard (1906), A Short History of Roman Law, Canada Law Book Company, Toronto Canada, Pg. 10.
• ⁵ Carroll Moulton (1998), Ancient Greece and Rome, Simon & Schuster Macmillan, New York, USA, Vol. 1, Pg. 195-196.
• ⁶ Paul Erdkamp (2013), The Cambridge Companion to Ancient Rome, Cambridge University Press, Cambridge, U.K., Pg. 22.
• ⁷ Munroe Smith (1904), Columbia Law Review: Problems of Roman Legal History, Columbia Law Review Association Inc., New York, USA, Vol. 4, Pg. 527.
• ⁸ Paul Frederic Girard (1906), A Short History of Roman Law, Canada Law Book Company, Toronto Canada, Pg. 32.
• ⁹ Munroe Smith (1904), Columbia Law Review: Problems of Roman Legal History, Columbia Law Review Association Inc., New York, USA, Vol. 4, Pg. 527.
• ¹⁰ Numa Denis Fustel de Coulanges (2001), The Ancient City, Batoche Books, Ontario, Canada, Pg. 160-161.
• ¹¹ Paul Frederic Girard (1906), A Short History of Roman Law, Canada Law Book Company, Toronto, Canada, Pg. 7.
• ¹² Carroll Moulton (1998), Ancient Greece and Rome, Simon & Schuster Macmillan, New York, USA, Vol. 1, Pg. 195.
• ¹³ Numa Denis Fustel de Coulanges (2001), The Ancient City, Batoche Books, Ontario, Canada, Pg. 267-268.
• ¹⁴ Paul Frederic Girard (1906), A Short History of Roman law, Canada Law book Company, Toronto, Canada, Pg. 51.
• ¹⁵ Ibid, Pg. 71-72.
• ¹⁶ Private professional document scribes, who were responsible for setting down Latin legal documents in writing, beginning in the Roman Imperial era. [Brill Reference (Online Version): https://referencewo rks.brillonline.com/entries/brill-s-new-pauly/tabelliones-e1127910: Retrieved: 02-01-2019
• ¹⁷ Eamonn G. Hall, An Introduction to Roman Law and its Contribution to the World, Notary Public Institute of Notarial Studies, Ireland, Pg. 4-5
• ¹⁸ The supreme executive power in the Roman state, involving both military and judicial authority. [Encyclopedia Britannica (Online Version): https://www.britannica.com/topic/imperium-Roman-law : 02-01-2018
• ¹⁹ Carroll Moulton (1998), Ancient Greece and Rome, Simon & Schuster Macmillan, New York, USA, Vol. 1, Pg. 195
• ²⁰ Bruce W. Frier & Thomas A.J. McGinn (2004), A Casebook on Roman Family Law, Oxford University Press, Oxford, U.K., Pg. 457-459.
• ²¹ The Pope, the leader of the Church. [A. S. Hornby (2015), Oxford Advanced Learner’s Dictionary, Oxford University Press, Oxford, U.K., Pg. 1153.
• ²² Carroll Moulton (1998), Ancient Greece and Rome, Simon & Schuster Macmillan, New York, USA, Vol. 1, Pg. 197.
• ²³ Ibid, Pg. 196.
• ²⁴ Bruce W. Frier & Thomas A.J. McGinn (2004), A Casebook on Roman Family Law, Oxford University Press, Oxford, U.K., Pg. 4-5.
• ²⁵ Munroe Smith (1904), Columbia Law Review: Problems of Roman Legal History, Columbia Law Review Association Inc., New York, USA, Vol. 4, Pg. 528.
• ²⁶ Roman tribunals of inquiry into crimes [Oxford Classical Dictionary (Online Version): http://oxfordre.co m/classics/view/10.1093/acrefore/9780199381135.001.0001/acrefore-9780199381135-e-5469#acrefore9780199381135-e-5469: Retrieved: 31-12-2018
• ²⁷ Lesley Adkins & Roy A. Adkins (2004), Handbook to life in Ancient Rome, Facts on File Publishers, New York, USA, Pg. 48.
• ²⁸ Bruce W. Frier & Thomas A. J. McGinn (2004), A Casebook on Roman Family Law, Oxford University Press, Oxford, U.K., Pg. 457-459.
• ²⁹ Lesley Adkins & Roy A. Adkins (2004), Handbook to life in Ancient Rome, Facts on File Publishers, New York, USA, Pg. 49.
• ³⁰ Bruce W. Frier & Thomas A. J. McGinn (2004), A Casebook on Roman Family Law, Oxford University Press, Oxford, U.K., Pg. 457-459.
• ³¹ Richard A. Bauman (1996), Crime and Punishment in Ancient Rome, Routledge, London, U.K., Pg. 4-6.
• ³² Carroll Moulton (1998), Ancient Greece and Rome, Simon & Schuster Macmillan, New York, USA, Vol. 1, Pg. 196.
• ³³ Paul Erdkamp (2013), The Cambridge Companion to Ancient Rome, Cambridge University Press, Cambridge, U.K., Pg. 423.
• ³⁴ Carroll Moulton (1998), Ancient Greece and Rome, Simon & Schuster Macmillan, New York, U.S.A, Vol. 1, Pg. 197.
• ³⁵ Richard A. Bauman (1996), Crime and Punishment in Ancient Rome, Routledge, London, U.K., Pg. 4-6.
• ³⁶ Carroll Moulton (1998), Ancient Greece and Rome, Simon & Schuster Macmillan, New York, USA, Vol. 1, Pg. 197.
• ³⁷ Numa Denis Fustel de Coulanges (2001), The Ancient City, Batoche Books, Ontario, Canada, Pg. 156-157.
• ³⁸ Richard A. Bauman (1996), Crime and Punishment in Ancient Rome, Routledge, London, U.K., Pg. 9.
• ³⁹ Honestiores or Honored individuals included every one above peasants which included senators, army veterans etc. which were afforded more rights in Roman law. Humiliores could also attain the status of a honestiores by enlisting in the army. [James W. Ermatinger (2004), The Decline and Fall of the Roman Empire, Greenwood Press, London, U.K., Pg. 15.
• ⁴⁰ Person of low social status (more insignificant). [Glossary of Roman Law (Online Version): https://thelatinlibrary. com/law/glossary.html: Retrieved: 02-01-2019
• ⁴¹ Lesley Adkins & Roy A. Adkins (2004), Handbook to life in Ancient Rome, Facts on File Publishers, New York, USA, Pg. 49.
• ⁴² Carroll Moulton (1998), Ancient Greece and Rome, Simon & Schuster Macmillan, New York, USA, Vol. 1, Pg. 196.
• ⁴³ Richard A. Bauman (1996), Crime and Punishment in Ancient Rome, Routledge, London, U.K., Pg. 6.
• ⁴⁴ Bruce W. Frier & Thomas A. J. McGinn (2004), A Casebook on Roman Family Law, Oxford University Press, Oxford, U.K., Pg. 6.
• ⁴⁵ The name of these functionaries is said to be derived from their having the care of the temple (aedes) of Ceres. The aediles were originally two in number, and called aediles plebeii; they were elected from the plebes, and the institution of the office dates from the same time as that of the tribuni plebis, B.C. 494. Their duties at first seem to have been merely ministerial; they were the assistants of the tribunes in such matters as the tribunes entrusted to them, among which are enumerated the hearing of causes of smaller importance. At an early period after their institution (B.C. 446), we find them appointed the keepers of the senatus consulta, which the consuls had hitherto arbitrarily suppressed or altered. They were also the keepers of the plebiscita. [William Smith (1875), A Dictionary of Greek and Roman Antiquities, John Murray, London, U.K., Pg. 18.
• ⁴⁶ Richard A. Bauman 1996, Crime and Punishment in Ancient Rome, Routledge, London, U.K., Pg. 13.
• ⁴⁷ 
• ⁴⁸ Richard A. Bauman (1996), Crime and Punishment in Ancient Rome, Routledge, London, U.K., Pg. 66-67.
• ⁴⁹ J. C. Mckeown (2010), A Cabinet of Roman Curiosities, Oxford University Press Inc., Oxford, U.K., Pg. 51.
• ⁵⁰ Richard A. Bauman (1996), Crime and Punishment in Ancient Rome, Routledge, London, U.K., Pg. 14.
• ⁵¹ Paul Frederic Girard (1906), A Short History of Roman law, Canada Law Book Company, Toronto, Canada, Pg. 57.
• ⁵² Richard A. Bauman (1996), Crime and Punishment in Ancient Rome, Routledge, London, U.K., Pg. 67.
• ⁵³ Sexual intercourse between a man and an unmarried woman other than one in slavery or concubinage. [Meriam Webster (Online Version):https://www.merriam-webster.com/dictionary/stuprum Retrieved: 03-01-2019
• ⁵⁴ A wrongful act in which the notions of injury and insult mingle. [Robert A. Kaster (2005), Emotion, Restraint, and Community in Ancient Rome, Oxford University Press, Oxford, U.K., Pg. 35.
• ⁵⁵ Nghiem L. Nguyen (2006), Michigan Journal of Gender and Law: Roman Rape: An Overview of Roman Rape Laws from the Republican Period to Justinian’s Reign, University of Michigan, Michigan, USA, Vol. 13, Issue: 1, Pg. 84-85.
• ⁵⁶ The Digest which is also called ‘The Pandects’ is a name given to the juristic works on Roman law aggregated by the command of the Eastern Roman head Justinian I in the sixth century C.E. (530– 533). It is separated into 50 books. It was a piece of a decrease and codification of every single Roman law up to that time, which later came to be known as the Corpus Juris Civilis which means 'Body of Civil Law'. The other two sections were an accumulation of rules, the Codex (Code), which survives in a second edition, and a basic course reading, the Institutes; each of the three sections were given force of law. The set was planned to be finished, however Justinian passed further enactment, which was later gathered independently as the Novellae Constitutiones (New Laws). [The Code of Justinian, Book I: http://www.uwyo.edu/lawlib/blume-justinian/_files/docs/book-1pdf/book%201-introduction.pdf Retrieved: 02-16-2019
• ⁵⁷ Ibid, Pg. 85-86.
• ⁵⁸ Richard A. Bauman (1996), Crime and Punishment in Ancient Rome, Routledge, London, U.K., Pg. 18.
• ⁵⁹ J. C. Mckeown (2010), A Cabinet of Roman Curiosities, Oxford University Press Inc., Oxford, U.K., Pg. 55.
• ⁶⁰ Ciprian Rotaru, Dumitru Alexandru Bodislav & Raluca Georgescu (2016), Theoretical and Applied Economics: A Review of Corruption based on the Social and Economic Evolution of Ancient Greece and Ancient Rome, General Association of Economists from Romania, Bucharest, Romania, Vol. 23, No. 2, Pg. 243.