Roman Law

Many of the modern world’s legal systems are directly and strongly indebted to the Romans, primarily through the Cōdex, Dīgesta and Institūtiōnēs compiled on the order of the Byzantine emperor Justinian I in AD 529-533. These texts, which run to well over a million words, are difficult to read, being written in legal jargon, and synthesising legal practices of almost 1,000 years. (The first body of Roman law to be promulgated was the Ten/Twelve Tables of the mid-5th century BC.) Since Latin remained the language of the judicial system throughout Europe till relatively recently, some of the still current phrases and concepts listed below were unknown to the Romans themselves. (Perhaps most notably, habeās corpus, which encapsulates a principle of fundamental significance to the protection of civil liberty; no one should be tried in absentiā.)

affidāvit is a verb in Latin, a noun in English. Such changes in the part of speech are particularly interesting. For verbs becoming nouns, cf. e.g.

The process is ubiquitous in liturgy, parts of the mass etc. being referred to by their opening words, regardless of what they may be: e.g.

in flagrante dēlictō: flagrantī would be the more correct form, since the participle is being used adjectivally, not in an ablative absolute. “red-handed” is a term derived from Scottish law, in which it bore its literal sense, referring to the blood of the victim.

mūtātīs mūtandīs: an ablative absolute constructed with the neuter perfect participle and gerundive of mūtō 1 “change”, literally “the things which need to be changed having been changed”.

Despite the influence of their legal system, we should not think of Roman society as being particularly enlightened; for example, perhaps as late as the 1st century AD, a man had the legal right to kill his wife and her lover if they were caught in flagrante dēlictō, women had no voice in public affairs, slaves were, of course, not suī iūris, and harsher penalties were imposed on criminals from the lower classes than on those from the elite.

Citizenship conferred important legal rights. The case of St. Paul is particularly well known; see Acts of the Apostles 22.25ff. Being a Roman citizen, he had the right to be tried by Caesar in Rome – but he was crucified in the end. As a kindness to the pirates who held him to ransom, Caesar had their throats cut before they were crucified. We tend to associate crucifixion particularly with the Romans, but it was well established in the East: in 519 BC, Darius I of Persia crucified 3,000 political opponents in Babylon; Alexander the Great was said to have crucified 2,000 people after the siege of Tyre in 332; in 88 BC, Alexander Jannaeus, the Judaean king and high priest, crucified 800 Pharisaic opponents.

Crucifixion is generally presumed to have been adopted by Rome from the Carthaginians, being attested first in the last years of the 3rd century BC, in the comedies of Plautus (c. 254-184 BC). Plautus refers frequently to crucifixion as a familiar type of punishment, especially for slaves; in the Miles Gloriosus (The Boastful Soldier), a slave says “Don’t threaten me. I know that the cross will be my grave. That is where all my ancestors were laid to rest – my father, and my grandfather, and my great-grandfather, and my great-great-grandfather” (373-4); in the Mostellaria (The Haunted House), another slave says “I’ll give a large sum of money to the first person who runs up to take my cross - but only on condition that his feet and his arms are nailed on double-tight; when that’s been done, he’s to come and ask me, and I’ll pay him right away” (359-361; the humor in Roman Comedy was not always very subtle). When the revolt of Spartacus was finally crushed (in 71/70 BC), more than 6,000 slaves were crucified along the Via Appia, the road between Rome and Capua. Crucifixion was abolished in the early 4th century by Constantine the Great, the first emperor to profess Christianity.

Two four-horse chariots were brought up and Mettius Fufetius, the king of Alba Longa, was tied to them [by order of Tullius Hostilius, the third king of Rome, as punishment for treachery]. Then the horses were driven in different directions, with each chariot carrying off whatever parts of his mangled body were attached to it. Everyone turned their eyes away from such an awful sight. This was the first and last instance among the Romans of a punishment with so little regard for humanity: one of the things the Romans may boast about is that no other people has ever been satisfied with milder punishments (Livy History of Rome 1.28).

In AD 61, the ex-consul Pedanius Secundus, was murdered by one of his slaves, either because Pedanius would not free him after a price had been agreed or because of sexual rivalry. Ancient law ordained that, when a slave killed his owner, all slaves living under the same roof should be executed. Even though so many of them were woman and children whose innocence was obvious, the Senate resolved to adhere to this practice, ignoring massive public appeals for mercy: all 400 of Pedanius’ household slaves were executed (Tacitus Annals 14.42-45). This law was presumably intended for a time when the number of slaves in a household was much smaller. It is unreasonable to doubt that many owners had as many slaves as Pedanius, but it is rather puzzling that no private house has been discovered which could possibly have accommodated anything like so many.