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date: 19 September 2019

criminal law, Roman

Summary and Keywords

“Crime” lacks a fully agreed definition across modern societies, but competing versions tend to stress notions like punishment, protection of public or collective interests, and a pervasive role for the state in proceedings. Over time the Romans used a series of different procedures (successively, trial before the assemblies, by specialized juries, or by imperial inquisitors) to try most of their offences that would be more or less recognizably criminal today. Substantively, the core of this group were offences against the state in an institutional sense (e.g., sedition, electoral malpractice, abuse of public office, forgery). Over time it also came to include an increasing number of (personal) crimes of violence. Some core modern criminal offences such as forms of theft and forgery of private documents came to be grouped in with these only at a very late date and incompletely. “Moral” offences that are treated as criminal more sporadically today (e.g., use of intoxicants, gambling, prostitution) were not criminalized. Penalties in earlier periods included fines, civic disgrace, and exile; later periods introduced finer differentiation of penalties, as well as execution. Imprisonment was not a formal penalty.

Roman criminal law had a deeper and more complicated relationship to politics than did the private, civil law. This is true both in the sense that the jurists were relatively uninterested in the criminal law, especially before the late 2nd century ce, and that known trials in the criminal courts seem to have been little governed by niceties of the law. Common-sense notions of guilt and innocence were relevant, but not legal technicalities.

Keywords: law, crime, trials, courts, criminal

Procedures

Criminal legal proceedings in Rome shared several features, though there were exceptions. Trials were held before a body of nonprofessional judges. Decisions were made by a majority vote and without deliberation. Trials began with relatively long presentations by advocates for both sides and were followed by introduction of witnesses and other evidence. The procedures were highly adversarial with little opportunity for pre-trial discovery or compulsion of witnesses nor rules of evidence during the trial. The court produced no explanation of its verdict, and no appeal was possible, though pardon could be granted by a political act of the assemblies or the emperor. Republican magistrates in office or those abroad on public business could not be tried until they returned to normal citizen status. The creation of new procedures was not accompanied by the immediate abolition of older ones.

From a very early period, Roman citizens had a right of appeal (provocatio) against at least corporal punishments applied by magistrates. The relationship between this right and the operation of the various criminal procedures is a matter of controversy. Particularly unclear is the extent to which provocatio relied on the affirmative intervention of a tribune to vindicate the “right.” Some have seen the origins of the comitial trial in precisely such an appeal to the broader authority of the people. Others have hypothesized that the enabling legislation for the later standing courts must have explicitly overridden provocatio. The question may not ultimately be important, since there are no known instances of any particular prosecution being protested (much less overturned) for failure to recognize provocatio. The open and probably irresolvable question is whether provocatio would have served as a barrier to jurisdiction by individual magistrates over “ordinary” (nonpolitical) crime.1

Iudicia Populi (“Comitial” Trials)

From the middle Republic, and perhaps earlier, magistrates might prosecute accused criminals before one of the standing assemblies of the people. The magistrate (typically a tribune, aedile, or quaestor) would announce a prosecution. There were several days of public presentations by both sides, then (after another interval of time, the trinundinum) the assembly would vote on guilt or innocence. Ballots became written (and thus secret) under laws of 137 and 103 bce.

Quaestio Extraordinaria (Special Inquiry)

Legislation or senatorial decree sometimes assigned the consuls or other magistrates to look into particular issues. Statutory inquiries were usually directed at official misconduct; Senate-directed ones examined notorious or large-scale crimes, often involving some kind of moral panic (e.g., the Bacchanalian affair and several mass poisoning scares). The magistrate typically called on a consilium of advisors, but appears not to have been bound either by their judgement or by any procedural rules. Occasional trials under this procedure continued even after the creation of standing courts, such as the inquiry into Clodius’s profanation of the rites of the Bona Dea.

Quaestio Perpetua (Standing Inquiry)

These were jury courts permanently established by statute to try anyone accused of a given crime. The first such court was established de rebus repetundis in 149 bce, and others were subsequently created, each to try a particular offence. The original procedure was a modification of the civil law legis actio sacramento; it was replaced about twenty-five years later with a process of nominis delatio, which became the model for all subsequent standing courts. There was no state prosecutor; any free adult male who wished to launch a prosecution could approach the relevant praetor with an accusation (nomen deferre); women could do so under limited statutory exceptions and in defense of their own interests or those of immediate family (this appears to have been understood quite narrowly). Apparently, permission was normally granted to accusers. If there were multiple would-be prosecutors, the praetor was to choose the best one, at least in some cases after a preliminary competition. A large jury (up to seventy-five persons) was chosen by having each side strike names of a standing list of eligible, elite jurors. Each side gave a substantial opening speech (or set of speeches), followed by the examination and cross-examination of witnesses (which also included the introduction of physical evidence such as documents). The jury voted without deliberation, and a majority vote won. Ballots were individually secret, but those of senators, knights, and the tribuni were counted separately. The presiding officer, sometimes the praetor himself but sometimes a designate (quaesitor), seems not to have charged the jury or otherwise intervened in the substance of the trial. In most cases, penalties were automatic and thus required no further action by either jury or magistrate.

The composition of the juries was a matter of particular political controversy from the founding of the first quaestio perpetua for about eighty years. The original jurors were senators, but in successive political developments, the courts changed hands between theirs and the equites’ several times. Finally, the lex Aurelia of 70 bce divided the jury panels evenly between senators, knights, and a more obscure (slightly less prestigious) group known as tribuni aerarii. Julius Caesar and Augustus both made small adjustments to this arrangement, admitting persons of slightly lower property qualifications to the juries.

The last attested trials under this mechanism are from the early 3rd century, but quaestiones had probably been largely displaced by cognitio well before then.

Senate

Shortly after the beginning of the Empire, the Senate became a venue for criminal trials, particularly when one of its own members was accused of a crime. Senatorial jurisdiction seems largely to have disappeared by the 4th century.

Cognitio

Under the Empire, cases increasingly came to be heard by imperial appointees. (Cognitio seems to have arisen first in civil contexts, but over the course of its evolution came to be used in criminal ones as well.) Cases normally began with denunciation, but could also be initiated by the relevant magistrate (Urban prefect, provincial governor) or his designee. The judge was free to question the parties and witness and to demand particular pieces of evidence. He arrived at a verdict on his own. Decisions could be appealed to authorities higher in the political order.

Tresviri Capitales and Other Magistrates

The tresviri were elected minor magistrates involved in the administration of executions. It has been argued that they had a much broader and jurisdictional authority over offences committed by slaves and persons of the lower classes, but the evidence for the latter is very weak. It has also been argued that, at least before the introduction of the quaestiones perpetuae, higher magistrates must have carried out relatively routine prosecution of nonpolitical offences, since prosecution before the assemblies would have been to cumbersome. This, however, presupposes both that provocatio was not an issue and that the Roman state had a level of interest in criminal justice that is unattested to in the direct evidence and unlikely cross-culturally.2

Families

Patres familiarum (to use the language of the later jurists) are known to have preemptively punished their adult children (especially daughters) for a variety of offences, criminal and otherwise. It is probably best not to think of this as a “familial jurisdiction,” both because of the breadth of issues potentially addressed and because there is no evidence that acquittal by the father would forestall a formal trial. Slaves were not subject to the courts until perhaps the early Empire, but they might have been disciplined by a variety of magistrates. They would have additionally been answerable to their owners at all periods. Adultery law permitted the offended husband or the woman’s father to kill the male offender (and, for the father, the woman) under very limited circumstances. This, too, is better seen not as alternative jurisdiction but as a limited concession to custom and passion; the offence was not otherwise capital.

Offences

Most offences were given statutory definition during the period of the quaestiones perpetuae, and the offences tried under that procedure were treated as set in later law, even after cognitio had replaced the earlier apparatus. Over the last decades of the Republic and through the Empire, the tendency was to add additional fact situations to existing offences rather than create new ones. In some cases—most notably involving maiestas, vis, and repetundae—this created considerably redundancy, as acts such as leaving one’s province without authorization or domestic sedition created liability under multiple statutes.

Juristic sources indicate few general principles of criminal liability as such, but several seem to have existed in practice. A culpable mental state (dolus malus; intention) was an element of several offences, and probably all of them. As a result, minors and the insane could not be criminally liable. Similarly, an overt act seems always to have been required. While attempts as such were not criminal offences, several particular statutes included various preparatory offences, such as “going about with a weapon” for purposes of homicide or procuring poisons. Both the person who arranged for a crime and those who carried out could be prosecuted for the same offence. It appears that defendants were protected from being re-tried once acquitted. That protection was slightly weakened by the fact that some acts violated multiple criminal statutes, and retrial for the same facts under a different charge was possible. There was not (unless perhaps in late antiquity) a general statute of limitations to prevent prosecution of old allegations, though some particular offences (adultery, peculatus) did include such prescription.

Adulterium

Adultery entailed sex between a married woman and any man other than her husband (see adultery, Roman). Certain women of low status (prostitutes, procuresses, perhaps noncitizens) did not count for purposes of this statute, even if they were in fact married. This only became a criminal offence under Augustus. The statute contained various procedural peculiarities such as privileging the immediate family as prosecutor, the requirement that the husband divorce an adulterous wife, and a five-year statute of limitations.

The law also seems to have concerned, though in a curiously secondary way, the broader category of stuprum, that is sex between a man and a woman neither his wife nor of low status.3 “Of low status” here includes not only prostitutes and noncitizens, but also women previously convicted of adultery.

Ambitus

Though it may have deeper and different origins, the classical offence of electoral bribery was certainly established by 181 bce. A standing court was established some time in the second half of the 2nd century bce, and several other statutes are known from the mid-1st century. These latter extended the scope of the offence to include not just buying votes for cash but offering entertainment and hiring followers and some other forms of organizing support. Though almost immediately irrelevant in Rome with the advent of the Empire, the law was applied to local elections for a considerable time thereafter.

Annona

Augustus created a criminal offence of interfering with Rome’s grain supply (see Annona) by hoarding or otherwise tampering with availability or price. The state’s own stake in the offence gave rise to special procedural features such as allowing women to lay accusations and slaves to testify against their owners.

Falsum

Originally the counterfeiting of coins or wills, falsum later included other forms of tampering and eventually forgery of documents more generally, giving or procuring false testimony, tampering with or forging seals, and perhaps even use of fraudulent weights and measures. The original court seems to have been established by Sulla.

Maiestas

Literally and in full “diminishing the superiority of the Roman people,” maiestas is often rendered as “treason.” Betraying Rome to her military enemies would fall under this head, but actual instances under the Republic more typically included exceeding one’s own or interfering with another’s official authority, soliciting insubordination among troops, and mismanagement of military affairs. It is likely but not certain that the statutes themselves only gave the broad definition (i.e., “diminishing the superiority”) rather than specifying particular acts. The court was first created around 100 bce, and at least two other statutes followed over the next two decades. Under the Empire, maiestas quickly came to focus on treason against the person of the emperor, often in purely symbolic forms (damaging images of him). An important later development seems to be the extensive prosecution of astrology as a threat to imperial security. Slaves were permitted to testify against their owner in trials for maiestas against the emperor, and women were permitted to lay accusations.

Murder

Originally, even intentional homicide was a criminal offence only under certain circumstances: the killing of a near relative (parricidium; from very early), violence as part of an organized crime scheme (de sicariis; perhaps from 142 bce), and poisoning (veneficium; by the early 2nd century bce, though a standing court is not attested to until the 90s). Intentional homicide in general only becomes a crime with, perhaps, the lex Cornelia of c. 80 bce. This statute also forbade conspiring to bring about someone’s death by abuse of process in the Senate or courts. Self-defense constituted an affirmative defense, and imperial rules mitigated penalties for killing without specific intent to do so (as in a brawl).

Over the course of the Empire, other acts short of murder came to be included under the same statute, including abortion, castration, concealment of shipwrecks, and arson. The clause on poisoning included acts that would be construed today as intending to use “magical” powers. Over time, as Imperial-age Romans apparently developed a sense of magic as deviant religious practice, magic in that more generalized sense came to be prosecuted under the lex Cornelia and perhaps eventually as a separate offence.

Killing a slave was not a criminal offence until the Empire, though it could always create civil liability if the slave were the property of another. Even when prosecution became available in principle, owners were still given wide latitude to corporally punish their slaves. In theory, patres familiarum might execute their own children at least until the 2nd century ce, but this seems to have been vanishingly rare in fact (beyond the distinct and accepted practice of exposing newborn infants).

Peculatus

Peculatus included theft of state property, including religious property. Though this offence is sometimes translated as “embezzlement,” the defendant need not have been custodian of the property, and some evidence suggests such a person was in fact excluded from the coverage of the law. Such persons might still be liable under the related charge de residuis, for retaining state funds appropriated for a specific purpose, but unspent. Eventually the charge also included tampering with public records, private use of public coin-making apparatus, and debasing the state’s precious metal.

Res Repetundae

Res repetundae (“getting things back”) is technically the name of the court, though it comes to be used as if it were the name of the otherwise nameless offence in question. Often described as “provincial extortion,” the original offence involved receipt of valuables (above a modest limit) by a provincial governor from someone subject to his authority, without regard to whether it involved extortion, a bribe, or even a potentially legitimate gift or business transaction. It was later expanded to include some acts of the governor’s subordinates and accepting bribes in judicial contexts. From 59 bce it also included a variety of misconduct by provincial officials, including levying unauthorized taxes, violating certain precedents of their predecessors, and leaving their provinces to wage war without authorization. This seems to reflect an implicit redefinition from fiscal extortion to a more general notion of official misconduct. It is not clear, however, that physical mistreatment under color of official authority was ever included in the statute; it did eventually come to be included under the offence of vis.

This was the first offence to be tried in a standing court (from 149 bce), and, partly as a result, it involved certain procedural peculiarities such as multiple hearings of each case and some provision for subpoena of witnesses by the prosecution.

Vis

Vis literally means “force” or “violence.” The criminal offence was first introduced in 78 bce in response to an armed uprising and was then expanded a short while later. These early statutes covered at least a set of classic acts of political violence (e.g., seizing public places, gathering a band of armed men) and likely any violence “against the state” (contra rem publicam). Eventually, imperial law also included other political acts, such as excessive violence under colour of authority. At some point the offence also came to encompass certain acts of private violence, such as rape and pillaging of villas. (See also on private violence in the law of delict.)

Perduellio

Like maiestas, this is sometimes translated as “treason,” but the few attested examples are of malfeasance in office or other injuries to the domestic political order. The offence predates the quaestiones perpetuae by centuries and is not known to have had a statutory basis. The show trial of Rabirius before the assembly in 63 bce is, however, the only known prosecution after the establishment of the standing courts.

Other

Scholars have identified other offences which are either said to be like (but not among) those tried by the quaestiones publicae or which appear to share certain features with them. A Sullan statute treated certain kinds of violence (e.g., severe beatings, burglary by force) with procedural features that some take as characteristically public but are perhaps better understood as simply statutory. Concussio (extortion by fraudulent threat of public authority) is said in the sources to rise to the level of a public offence if the threat is of criminal prosecution. Plagium (wrongly holding someone as a slave, not “kidnapping” in general, as it is sometimes rendered) is grouped along with the criminal offence in the Digest. The original Republican law seems to have stipulated a fixed fine and not to have established a standing court. Later the offence became capital.

Rape

Rape as such—sex without consent—was not an offence under Roman law, but particular instances were frequently punishable in one of several ways. Most instances involving free persons would have incidentally constituted stuprum and thus been subject to public prosecution at least from the time of Augustus. In principle the victim should have been able to avoid a charge of stuprum by pleading compulsion, but it is not clear how well this worked in practice. And at least in Imperial times, overtly forcible rape could often be prosecuted as vis as well. (In general, an action on the delict of iniuria would be available.) Rape of wife by husband or slave by owner, however, would not give rise to liability under any of these rules.

Penalties

Except in cases of maiestas under the Empire, capital charges lapsed with the death of the defendant. In maiestas cases, however, the heirs might be required to prove innocence to avoid confiscation of the estate. Trials might continue in the case of fiscal crimes (repetundae and peculatus). Imprisonment was not, in theory, a form of punishment, though warnings to officials on the point suggest some use of it in practice, especially in late antiquity where it became more common in Christian contexts.4

Fines

Among the principal criminal offences, fines as such were imposed in cases of repetundae, peculatus, and adultery. In repetundae cases, the original jury held a second hearing to determine the damages suffered and applied (at most periods) a multiplier to arrive at the judgement, which was paid back to the injured parties. This procedure could also claw back ill-gotten gains that had been passed on to even innocent third parties. Something similar is likely to have been applied in cases of peculatus. For adultery it was a portion of the criminal’s total wealth (half for men, a third for women). This money went to the state. Plagium was originally punished by a fixed fine, one of the features that gives rise to doubt as to its status as a “criminal” offence. Imperial law introduced fines for tampering with the grain supply and for ambitus in the context of local elections.

From the late Republic forward, fines were also used to punish magistrates who failed to perform their duties (originally only specific ones), though whether that makes such malfeasance a “criminal” offence is debatable.

While it was perhaps only an incidental feature of the penalty, capital crimes incidentally involved confiscation of one’s whole property, also in favor of the state.

Civic Disability

Roman law excluded formally disgraced persons from a number of public activities such as holding office, witnessing legal acts, serving in the army, or testifying in court. The sources of this disgrace (infamia) varied from case to case, but frequently included criminal conviction. Men convicted of ambitus were prevented from running for further office—originally for a decade, later permanently. A woman convicted of adultery was not permitted to remarry.

Exile

During the Republican period a late ambitus law was the only one to impose exile as such (for a five-year period) as a penalty. (See, however, “Capital” Crimes.) Under the Empire, exile became much more common as a penalty for members of the upper classes. It was also divided into several degrees of severity, with increasingly narrow specification of where the convict had to go. The weaker form (relegatio) could be temporary and might be defined by exclusion from particular places or by relegation to a particular place; the most extreme form (deportatio) was permanent, specified a place of exile (typically an island), and automatically included a capital penalty.

“Capital” Crimes

Under the Republic, several crimes (maiestas, homicide, vis, falsum) carried a “capital” penalty, which in practice touched the defendant’s status rather than his life. The convict was stripped of property and citizenship and forced to leave Roman territory under threat of actual execution. The one exception was parricide, which seems to have preserved an exotic form of ritual execution until the early 1st century bce.

Dual Punishments under the Empire

Over the course of the 1st century ce and a little beyond, a split developed between the punishments meted out to high- and low-status defendants. The higher-status defendants (usually called honestiores) continued to suffer the Republican-style penalties plus the new varieties of exile. Lower-status ones (humiliores) were punished corporally, including a variety of forms of execution and relegation to the mines or the arena.

Crime and Delict

During the Republic, theft was treated as a “delict,” a form of private action (e.g., suits over inheritance, property damage, or contracts), which was to be pursued by the injured party and only for monetary damages. Similarly, assaults made up part of the delict of iniuria, which also included defamation and other nonphysical injuries. At some point in the later Empire it became possible to pursue at least theft “criminally.” The force of this is unclear, since civil and criminal procedure had already collapsed into one; it seems mostly likely to have involved imposition of nonfinancial penalties at the disposition of the state. If this is in fact the meaning, then iniuria also came to be criminally prosecuted, at least in some cases.

Discussion of the Literature

Discussion of Roman criminal law tends to differ from that of most other areas of law in several related ways. There is more focus on the Republican period, on trials in individual cases (as opposed to the law in the abstract), and on the political aspect of both the trials and the legislation. The reasons for this are several and, again, related. For the Republican period, there is the rich evidence of Cicero’s speeches delivered in court (as well as an inscribed text of at least one statute). Trials generally receive more notice than legislative acts in narrative sources like histories and letters. During both Republic and Empire, trials are frequently presented in sources as “political” in the pejorative sense that charges are brought or decisions reached for personal rather than legal reasons. Modern scholarship has then often generalized this view, almost certainly to excess. It is clearer, however, that the courts, especially in the Republican period, were overwhelmingly political in the more neutral senses that many offences were explicitly defined in terms of political rights and structures and that the system was created through the political process of the assemblies rather than edictally. Moreover, even in known cases of more “ordinary” crime, the defendants were typically persons of political standing. Finally, the modern inclination to leave criminal law to the historians reflects the relative disinterest of the Roman jurists themselves in the topic.

This political dimension affects both small and large questions. For instance, the legis actio procedure of the first law de repetundis would, in the ordinary course of things, have only been available to Roman citizens, but this seems strange given what scholars imagine the basic goal of the legislation to have been (relieving pressure on oppressed provincial subjects). Some have seen this technicality as a reason to reassess modern views of the purpose of the statute; others have seen that purpose as a reason to reassess the flexibility with which the procedure could be deployed. More generally, a range of technical questions intersect with the broad political question of the extent to which Roman criminal law was meant to repress ordinary crime. To the extent that one believes that this was the goal, then it is more plausible, for instance, that various magistrates had relatively broad criminal jurisdiction or that offences like homicide, assault, and theft were criminalized at relatively early dates.

The purpose and thus the intended scope of the criminal law could well have varied over time, indeed so much so that it raises a problem that the existing literature has not sufficiently addressed: the question of what counts as “criminal” and what that might mean.5 Most studies either import a substantively oriented modern understanding (that may not correspond to any Roman category) or pick Roman procedural categories without regard for their fit with any such modern notion. This leads to the aggregation of evidence across areas (delict, the public courts) and time (from the Twelve Tables all the way to the Digest) without adequate theoretical justification. As a first approximation, the quaestiones perpetuae tried individual offences that would mostly be criminal today and which more abstractly involve harm to the community. The consequences of conviction are generally penal, rather than, say, mere restoration of the status quo ante. However, this procedural category leaves out major substantive areas of modern criminal law such as theft and assault. And even here the logic that underlies seemingly familiar groupings of offences may in fact be quite alien, and certainly changed over time (as in, for instance, the histories of murder, vis, repetundae, and magic).6 Other Roman procedural categories are still more unsatisfactory matches for the criminal. Terminology like crimen (originally “accusation”), delictum, and maleficium (both originally “wrongdoing”) seems sometimes to refer to something like “crime,” but is also used in much broader senses. The organization of text is similarly problematic. Imperial decrees against pagan sacrifice, for instance, may carry what look like criminal sanctions, but are grouped in the Theodosian Code with other religious matters, not the criminal ones.

Primary Texts

The main evidence from the Republican period consists of Cicero’s speeches in criminal cases (pro Roscio Amerino, in Verrem, pro Fonteio, pro Cluentio, pro Rabirio perduellionis, pro Murena, pro Sulla, pro Flacco, pro Sestio, pro Caelio, pro Plancio, pro Rabirio Postumo, pro Scauro). The one surviving Imperial-age speech from a criminal trial is Apuleius’s Apologia.

The juristic evidence is mostly collected in book 48 of the Digest. Imperial constitutions in this area are gathered in the Codes of Theodosius (book 9) and Justinian (book 9).

Trials in the Late Roman Republic is a database of trials from the Republican period based on Michael Alexander’s Trials in the Late Roman Republic.

Bibliography

Alexander, Michael. Trials in the Late Roman Republic. Toronto: University of Toronto Press, 1990.Find this resource:

Bauman, Richard. The Crimen Maiestatis in the Roman Republic and Augustan Principate. Johannesburg: Witwatersrand University Press, 1967.Find this resource:

Fantham Elaine. “Stuprum: Public Attitudes and Penalties for Sexual Offenses in Republican Rome.” EMC 35 (1991): 267–291.Find this resource:

Fascione, Lorenzo. Crimen e quaestio ambitus nell’ eta repubblicana. Milan: A. Giuffrè, 1984.Find this resource:

Gaughan, Judy. Murder Was Not a Crime: Homicide and Power in the Roman Republic. Austin: University of Texas Press, 2010.Find this resource:

Harries, Jill. Law and Crime in the Roman World. Cambridge, U.K.: Cambridge University Press, 2007.Find this resource:

Kunkel, Wolfgang. Untersuchungen zur Entwicklung des römischen Kriminalverfahrens in vorsullanischer Zeit. Munich: Verlag der Bayerischen Akademie der Wissenschaften, 1962.Find this resource:

Lintott, Andrew. Violence in Republican Rome. Oxford: Oxford University Press, 1999.Find this resource:

Mommsen, Theodor. Römisches Strafrecht. Leipzig: Dunker and Humblot, 1899.Find this resource:

Nippel, Wilfried. Aufruhr und “Polizei” in der römischen Republik. Stuttgart: Klett-Cotta, 1988.Find this resource:

Riggsby, Andrew. Crime and Community in Ciceronian Rome. Austin: University of Texas Press, 1999.Find this resource:

Riggsby, Andrew. “Public and Private Criminal Law.” In Oxford Handbook of Roman Law and Society. Edited by Paul J. du Plessis, Clifford Ando, and Kaius Tuori, 310–321. New York and Oxford: Oxford University Press, 2016.Find this resource:

Rives, James. “Magic in Roman Law: The Reconstruction of a Crime.” Classical Antiquity 22 (2003): 313–339.Find this resource:

Robinson, Olivia. The Criminal Law of Ancient Rome. Baltimore: Johns Hopkins University Press, 1995.Find this resource:

Robinson, Olivia. Penal Practice and Penal Policy in Ancient Rome. London: Routlege, 2007.Find this resource:

Santalucia, Bernardo. Studi di diritto penale romano. Rome: L’Erma di Bretschneider, 1994.Find this resource:

Strachan-Davidson, James. Problems of the Roman Criminal Law. Oxford: Clarendon, 1912.Find this resource:

Venturni, Carlo. Studi sul crimen repetundarum nell’età repubblicana. Milan: A. Giuffrè, 1979.Find this resource:

Notes:

(1.) For a summary of arguments, see Andrew Lintott, The Constitution of the Roman Republic (Oxford: Oxford University Press, 1999), 147–162, and Duncan Cloud, “The Origin of Provocatio,” Revue de Philologie, de Littérature et d’Histoire Anciennes 72.1 (1998): 25–48.

(2.) For the expansive theory, see Wolfgang Kunkel, Untersuchungen zur Entwicklung des römischen Kriminalverfahrens in vorsullanischer Zeit (Munich: Verlag der Bayerischen Akademie der Wissenschaften, 1962), esp. 71–79, and Duncan Cloud, “The Constitution and Public Criminal Law,” 491–530 in CAH2 IX.500–501 [Crook, J A, A W. Lintott, and Elizabeth Rawson. The Last Age of the Roman Republic, 146-43 B.C. Cambridge: Cambridge University Press, 2015. Print.]. For strong arguments against, see Wilfried Nippel, Public Order in Ancient Rome (Cambridge, U.K.: Cambridge University Press, 1995), 16–26 (summarizing earlier work). Bernardo Santalucia, Studi di diritto penale romano (Rome: L’Erma di Bretschneider, 1994), 129–144, offers an intermediate position. That a variety of elements of the Roman state (especially the Imperial army) carried out particular “policing” functions at various times and places is beyond dispute (Christopher Fuhrmann, “Police Functions and Public Order,” in Oxford Handbook of Roman Law and Society, eds. Paul J. du Plessis, Clifford Ando, and Kaius Tuori, 297–309 [New York and Oxford: Oxford University Press, 2016]); it is less clear how much this patchwork added up to or whether it reflected any ancient category of policing.

(3.) See especially Thomas A. J. McGinn, Prostitution, Sexuality, and the Law in Ancient Rome (New York: Oxford University Press, 1998), 140–202.

(4.) Julia Hillner, Prison, Punishment, and Penance in Late Antiquity (Cambridge, U.K.: Cambridge University Press, 2015).

(5.) See Andrew Riggsby, “Public and Private Criminal Law,” in Oxford Handbook of Roman Law and Society, eds. Paul J. du Plessis, Clifford Ando, and Kaius Tuori (New York and Oxford: Oxford University Press, 2016), 310–321, for a full elaboration of the argument here.

(6.) See Andrew Riggsby, Crime and Community in Ciceronian Rome (Austin: University of Texas Press, 1999) for more detail on homicide, repetundae, and vis in particular and principles of grouping in general.

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