Vous êtes sur la page 1sur 15

American Philological Association

Sacer Esto
Author(s): Harold Bennett
Reviewed work(s):
Source: Transactions and Proceedings of the American Philological Association, Vol. 61 (1930),
pp. 5-18
Published by: The Johns Hopkins University Press
Stable URL: http://www.jstor.org/stable/282790 .
Accessed: 08/12/2012 23:18

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .
http://www.jstor.org/page/info/about/policies/terms.jsp

.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of
content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms
of scholarship. For more information about JSTOR, please contact support@jstor.org.

American Philological Association and The Johns Hopkins University Press are collaborating with JSTOR to
digitize, preserve and extend access to Transactions and Proceedings of the American Philological
Association.

http://www.jstor.org

This content downloaded by the authorized user from 192.168.82.218 on Sat, 8 Dec 2012 23:18:43 PM
All use subject to JSTOR Terms and Conditions
TRANSACTIONS

OF THE

AMERICAN
PHILOLOGICAL
ASSOCIATION
I930

I.-Sacer Esto
HAROLD BENNETT
UNIVERSITY OF WISCONSIN

Probably the earliest penalty of Roman criminallaw was


that of pronouncinga man sacer. Two definitionstaken
fromthe dictionaryofthe AugustanwriterVerriusFlaccus cite
this as the penaltyprescribedby regal law forthe removerof
boundary stones1 and the parent-beater.2 Some scholars
believe that the same phrase can be distinguishedon the
archaic cippus of the Forum, and interpretit as having em-
bodied a threat against any violator of that place or stone.3
Servius has preservedthe wordingof a law of the XII Tables,
which invokes a like penalty on the head of the patron who
has wrongeda client,4while Festus also quotes the Tables as
authorityforthe archaic formof aliterin some law of unstated
content: "Si quisquam aliuta faxit,ipsos Jovi sacer esto." 5
Such laws as these, Festus tells us, were known as leges
sacratae,and ofthe man who shouldhave violatedthem,it was
orderedthat "sacer alicui deorumesset, cum familiapecunia-
' Festus, p. 505 (Lindsay): Numa Pompilius statuit eum qui terminum
exarasset, et ipsum et boves sacros esse.
2 Festus, p. 260 L.: Si parentem puer verberit, ast olle plorasset paren(s),

puer divis parentum sacer esto.


3 See Bruns, Fontes Juris Romani,7 pp. 14-15.
4Servius on Aen VI, 609: ex lege xii Tab. venit, -in quibus scriptum est
'patronus si clienti frauidensfecerit, sacer esto.'
65 L.
.5

This content downloaded by the authorized user from 192.168.82.218 on Sat, 8 Dec 2012 23:18:43 PM
All use subject to JSTOR Terms and Conditions
6 Harold Bennett [1930

que." 6 To the formerlist, therefore,we may add the law


whichLivy reportsto have been passed in the firstyear of the
Republic againstany individualwho shouldhave conspiredfor
monarchy(sacrandocum boniscapite ejus qui regnioccupandi
consilia inesset),7as also the familiarValerio-Horatianlaw of
449 B.C., whichdeclaredthat if any man should have violate(d
the sacrosanctitasof a tribuneof the plebs, "ejus caput Jovi
sacrum esset, familia ad aedem Cereris Liberi Liberaeque
venumiret." 8
Of the meaning of sacer in such cases there can be little
doubt. It puts a man apart fromhis fellowcitizensand marks
him as the propertyof a god.9 Evidentlythe formulareflects
a stage of societyin whichsacred and secular law had not yet
been distinguished,and it would seem that religiousobligation
is invoked as justificationfor the taking of human life. In
such case one would expect the killingof the offenderto be
representedas the sacrificeof a victimto the god, and literary
evidence is available to show that the Romans themselvesdid
so regardit. Plutarchtellsus that a law of Romulus ordained
that he who sold his wifeshouldbe sacrificed,1" and Dionysius
ofHalicarnassusin his reportofthe law againstthe wrongingof
a clientexpresslystates that the offendermightbe killed as a
sacrificeto Jupiterof the netherworld. At this point, how-
ever, we encountera serious difficultv, for Dionysius asserts
both in regardto the removerof boundary stones" and the
wrongerof a client that the execution was left to any who
wished to performit. This does not sound like a religious
sacrifice. The matterbecomes even more complicated when
we turnto the well knowndefinitioll in Festus: " Sacer homo is
est quem populus judicavit ob maleficium;neque fas est eum
immolari,sed qui occidit parricidiinon damnatur."12 To an
6 423 L.
7 II, 8, 2. Cf. iII, 55, 5.
8 Ib. iII, 55, 7.
9 Macr. Sat. in, 7, 3: quidquid destinatum est dis, sacrum vocatur.
10 Romulus 22, 3.
11 II, 10 and 74.
12 S.V. sacer mons, 424 L.

This content downloaded by the authorized user from 192.168.82.218 on Sat, 8 Dec 2012 23:18:43 PM
All use subject to JSTOR Terms and Conditions
Vol. lxi] Sacer Esto 7

unprejudiced translatorthis ought to mean that any citizen


judged guiltyby the populus (i.e. fora capital offence)became
a sacer homo; that it was not, however,lawful forhim to be
sacrificed,but anyone killinghimwas held innocentof murder.
This perplexingstatement,which seems to deny the very
thing which the name itselfimplies,has been very diversely
interpreted.
Mommsenheld it to mean that whenthe criminalcould not
be sacrificedaccordingto fas, that is, by a religiouslycompe-
tent, patricianmagistrate,a plebeian officeror even a private
citizen mightact as executionerby way of self-helpwithout
magisterialaction.13
Strachan-Davidson protested that this interpretationdis-
tortsthe obvious meaningof the Latin, since "neque fas est"
is part ofthe principalsentenceand not of the relativeclause."4
His own explanationis that the wrongdoerwould normallybe
killed with the sacrificial.ax, but that in case the offender
should,by accident or the neglectofthe magistrate,escape the
operation of the ordinarylaw, an ultima ratio was provided
which armed each man's hand against him.15 In support of
this view he quotes a passage fromMacrobius whichcompares
a sacer homowith a consecrated animal,16and a note from
Serviusin whichthat ingeniousinterpreter explainsthat Sinon
was an escaped victim,and that the sacredordinancesrequired
that such should be killed whereverfound.17
The objection to this interpretationis, of course, that it
makes the definitiondescribethe exceptionand not the rule;
surely a fatal weakness in a definition. Strachan-Davidson
recognizedthisdifficulty,and explainedthat " the last situation
is so muchmorepicturesquethan that ofthe criminalon whom
the vulgar course of justice is being executed,that it is little
wonderif our authoritiesshow a tendencyto leave the latter
13 Strafrecht,p. 902, n. 1.
14 Problems of the Roman Criminal Law, i, p. 4.
15Ib. p. 9.
16 Sat. IiI, 7, 5.

17 On Aen. ii, 104.

This content downloaded by the authorized user from 192.168.82.218 on Sat, 8 Dec 2012 23:18:43 PM
All use subject to JSTOR Terms and Conditions
8 Harold Bennett [1930

out of sightand to lay the main stresson the moreinteresting


and excitingpossibility." But this is not very satisfactory,
either. The definitionclearly states "neque fas est eum im-
molari,"and this would seem to me to exclude even the possi-
bilityofwhat Strachan-Davidsonsetsdlownas the normalcase,
viz. sacrificeby means of the ax.18
A thirdinterpretation is that of Warde Fowler,'9who seizes
upon the word "immolari," and holds that the definition
means that in no case could the sacerhlonobe slain at the altar
or withthe sacrificialax; a tainted victimwould be unaccept-
able to the god. In the case of infernaldeities,however,who
had no orderedaltar sacrifice,if any one wished to appease
them with a victim,one must curse him and make him sacer
in the old sense of 'taboo', and then leave him to his fate.20
This interpretationis attractivebut beset with difficulties.
Not onlyis Warde Fowler hard put to it to make his theoryfit
such a case as that of the violator.of a tribune,who was de-
clared sacerJovi (surely no underworlddeityin this instance),
but the whole theory that the criminal condemned by the
people was regularlyleft to a chanice executioneris very
unsatisfactory.
The solutionofthe difficulty lies, I believe,in a combination
of the views of these scholars, and will best be reached by
leaving for the presentthe definitioni fromFestus, and con-
sideringthe ancient evideniceof what actually was done with
the individual criniinal at the differentperiods of Roman
history.
For the earliest period human sacrificeseems reasonably
well established. The literary evidence of Dionysius and
Plutarch to the effectthat laws of Romulus permittedthe
treacherouspatron to be killed as a OD,ua,21 and ordered the
18op. Cit. I, p. 9.
19Roman Essays and Interpretations,pp. 15-24.
20 This power of pronouncing a man sacer or 'taboo,' Warde Fowler assumes,

resided first in a group verdict, then in the dictum of the rex aided by the
pontifices,and finally nmayhave beein pronouniced by the pontifexmaximus after
a judicial trial.
21 Dioin. Hal. ii, 10.

This content downloaded by the authorized user from 192.168.82.218 on Sat, 8 Dec 2012 23:18:43 PM
All use subject to JSTOR Terms and Conditions
Vol. lxi] Sacer Esto 9

wife-seller to be sacrificedto the infernalgods (ObeaOat x6opLots


OEoth),22is supported by the fact that beheading with the ax,
a well establishedmethodof slaughteringa sacrificialanimal,23
seems to have been also the earliestformof human execution
at Rome. The use of the word caput in the phrases sacratio
capitis and poena capitis; the presence of the ax as the
death dealing instrumentin the fasces; and the traditional
account of the execution of the two sons of the firstconsul,
whomthe lictors" securiferiunt,"24 all point in this direction.
There can, moreover,be littledoubt that when JuliusCaesar
had two men sacrificedas victims at the Ara Martis by the
pontiffsand priestof Mars,25he was indulgingthe same fond-
ness fordramatizingantiquarian revivals as he had shown in
orderingthe trial of Rabirius forperduellio.
It seems to me, therefore,that Girard was on safe ground
whenhe wrote:"At Rome the firstexecutionerwas a sacrificer;
in old times there was no capital execution which was not
performedin honorof some god." 26
With the removal,however,of the ax fromthefasces of the
magistratewithinthe city,and the grantingof appeal to the
people in all mattersof lifeand death, we enterupon a second
period. Execution by the ax, of citizens within the city, is
discontinued. The criminal,whose appeal to the people has
been unsuccessful,is stillput to death undercover of religion,
but is no longer smitten with the sacrificialweapon. The
harvestthiefis orderedby the XII Tables "Cereri suspensum
necari"; 27 the violator of the tribune is pronounced "Jovi
sacer," but is thrownto his death fromthe Tarpeian Rock.28
It was of these conditions,therefore, whichbegranin 509 B.C..
22 Plut. Rom. 22, 3.
23
Horace, C. iII, 23, 12-13: victima pontificum secures cervici tinguet. Cf.
Flor. i, 21: ne gladio quidem, sed ut victimas securi percutiunt.
24 Livy ii, 5; Dion.
Hal. v, 8, 9. Cf. Livy xxvi, 13, 15; xxx, 43, 13.
25 Dio Cass. XLIII, 24, 4.
26 Organisations Judiciaires, p. 33.
27 Bruns, op. cit.7 p. 31.
28 Dion.
Hal. x, 31. This seems to have been the traditional form of execu-
tion for all capital cases in which the tribune was prosecutor.

This content downloaded by the authorized user from 192.168.82.218 on Sat, 8 Dec 2012 23:18:43 PM
All use subject to JSTOR Terms and Conditions
10 Harold Bennett [1930

and lasted (at least theoretically)into his own time,that Ver-


riusFlaccus framedhis definition. His use ofthepresenttense
is significant(sacer homois e8t). He was not writingthe whole
historyof the term sacer homo,but was merelydefiningits
later, and current,meaning. The "neque tamen" clause
shows, however,that he was conscious of the fact that the
situationhe describesis not what the name would imply. It
seems to me, therefore,that we should understandhis defini-
tion thus: a sacer homois a man whomthe people has judged
(i.e. in a capital trial afterthe Lex V'aleria de provocatione);
and yet it is not lawful forhim to be sacrificed(though the
name would seem to imply it), but whoeverkills him is not
held guiltyof murder.
The last section, however, is still unexplained. If the
criminal was executed by hanging,throwingfromthe rock,
drowningin the sack, stranglingin the prison,or any otherof
the later formsof Roman execution,why this statementof
promisedimpunityforthe random killer? It is explained, I
think,by the definitionitself,which has another clause, ap-
parentlydisregardedby Strachan-Davidson. "Parricidii non
damnatur," it reads, "nam lege tribuniciaprima cavetur 'si
quis eum qui eo plebei scito sacer sit occiderit,parricida ne
sit.' "29 This seems to relate to that period in the struggleof
the orderswhen plebiscitafirstbecame bindingas law,30and
therefore competentto sanctionsacratiocapitis. The tribunes,
however,had no lictors,and feeling,no doubt, that the death
penaltyorderedby plebiscitamighteasilybecomean idle threat
if leftto the administrationof the patricianmagistrates,they
demandedand receivedthe rightto executethe penaltyeither
by their own hands or those of any other memberof their
order.3' This would have been, in effect,nothingmore than
29 See Mommsen,op. cit. p. 902, n. 1.
30 ofotherauthooi-
That is, after449 B.C., althoughsubjectto theratification
ties until287 B.C. See T. M. Taylor, A Constitutional and PoliticalHistoryof
Rome, pp. 85 ff.
what Mommsenmeant,I think. It does not seemto me
31 This is essentially

necessaryto impugnhis understandingof the Latin.

This content downloaded by the authorized user from 192.168.82.218 on Sat, 8 Dec 2012 23:18:43 PM
All use subject to JSTOR Terms and Conditions
Vol. lxi] Sacer E?8o 11

the legal recognitionand extensionof the oath (8acramentum)


upon which the inviolabilityof the tribune seems to have
restedfrom494 to 449 B.C.32
I venture to think,however,that there was also another
reason for this formof expression. Livy's reportof the law
promulgatedagainst the attemptedusurpationof monarchical
power quite clearly makes the penalty sacratio capiti8,33but
Plutarch describingthe same law says "he made the killer
guiltless of murder,if he furnishedproofs of the charge." 34
It would seem,then,that at least in certaincases35 it was per-
mitted,ifnot ordered,that the executionshouldnot wait upon
judicial trial. The offenderbecame sacer at once, and the
voluntaryexecutionerwas guaranteedimmunityfrompunish-
ment providedhe could prove that the offencehad been com-
mitted. In establishing such proof the killer would tech-
nicallybecomedefendantin a trialformurder,but his acquittal
mighteasily be representedas a verdictof the people that the
victimhad been a sacer homo.
Theoretically,as has been said, this second period,in which
the sacer homowas executed though not sacrificed,lasted all
through the Republic. Practically, however, some further
changes of a very sweepingcharacteroccurredwith regardto
the punishmentof capital crimes.
When Livy alleges that Coriolanus was allowed to escape
death by going into exile,36he cannot be taken as reliable
evidenceforthe practiceof491 B.C., but therecan be no doubt
that he is presentinga reconstructedarchetypeforwhat soon
came to be the rule. Polybius may certainlybe taken quite
literallywhen he says that in his time those on trial fortheir
82 See Strachan-Davidson,op. cit. i, p. 12 f.
83iI, 8, 2: sacrandocum bonis capite.
1
84 Popl. 12, 1: 7rcapa&OXoTroTOV &IcLKf.aTos 7oVs EXEyXOUs. Cf. Dio. C. LIII,
17, 9.
85 One thinksat once of the violationof a tribune. Probablyalso such cases
as the strikingof a fatheror the wrongingof a clientbelong to this category,
owing to the special i-elationbetween the parties,which would preclude an
ordinary action at law. See Strachan-Davidson, op. cit. i, p. 10 f.
86 II, 35, 6.

This content downloaded by the authorized user from 192.168.82.218 on Sat, 8 Dec 2012 23:18:43 PM
All use subject to JSTOR Terms and Conditions
12 Harold Bennett [1930

lives were at liberty"to depart openly,thus inflicting volun-


tary exile on themselves,if only one of the tribes that pro-
nounce the verdict has not yet voted. Such exiles enjoy
safetyin the territoriesof Naples, Praeneste,Tibur, and other
civitatesfoederatae."37 Theoretically this evasion of death
could be preventedby the magistrate,if he wished to detain
the accused under arrest,and was not preventedfromdoing
so by a tribune, but in practice this was probably a rare
occurrencesave in the case of the lowestcriminals.38 In fact,
the Porcian Laws, by sharpeningthe sanctionsof the law of
appeal,39seem to have had the effectof virtuallyguaranteeing
to the citizenthe rightof avoiding death by voluntaryexile.40
It is, therefore,generallyagreed that by the middle of the
second centuryB.C. the execution of citizens in the regular
course of criminal law had become practically obsolete at
Rome. It is not so generallyagreed that the death8entence,
which made a man 8acer,was also fromthis time practically
unknown. Strachan-Davidsonmay be takenas representative
of the view that the sacer homo,whomany one mightkill,still
continuedto be a commonfigureof Roman life,being hence-
forthknownunderthe moreseculardescriptionof aqua etigni
interdictu8.41
It is certainlytruethat interdictionfromfireand waterwas
pronouncedagainst a voluntaryexile, who, if he had awaited
judgment, might have been condemned to death by the
centuries,but I cannot accept the view that its consequences
were at all the same. Mommsen thoughtthat this interdict
originatedas a magisterialdecree against undesirableforeign-
37 Polyb. VI, 14, 7; translation by W. R. Paton.
38 See Mommsen, op. cit. p. 328.
39 Cic. de Rep. ii, 31, 54; neque vero leges Porciae, quae tres sunt trium Por-
ciorum, ut scitis, quicquam praeter sanctionem attulerunt novi. Cf. Livy x,
9, and Cic. pro Rab. 12.
40 See the statements attributed to Julius Caesar by Sallust (Cat. 51): At

aliae leges item condemnatis civibus non animam eripi, sed exsilium permitti
jubent; . . . tum lex Porcia aliaeque leges paratae sunt, quibus legibus esilium
damnatis permissum est.
41 op. cit. ii, pp. 31 ff.

This content downloaded by the authorized user from 192.168.82.218 on Sat, 8 Dec 2012 23:18:43 PM
All use subject to JSTOR Terms and Conditions
Vol. lxi] Sacer E8to 13

ers, whom it was desired to exclude once forall fromRoman


soil.42 This is a reasonable deduction, for such is precisely
its use in the earliest historicalcases.43 The persons against
whomit is directedhad once, to be sure,been Roman citizens,
but by their voluntarytransferinto another state had auto-
matically made themselves, technically, foreigners. The
action taken against themwas not a judgmentby the populus,
such as thedefinitionofFestus declaresto be necessaryto make
a man 8acer. It was regularlya plebi8citum,44 which took
cognizanceof the fact that a certainindividualhad laid down
his citizenshipand was henceforthto be treated as an unde-
sirable alien. It was impossibleforthe man to be made 8acer,
forhow could the Roman people hand overto a god a man who
was now a citizenof anotherstate?
Nor is it necessaryto thinkthat the meaningofthe interdict
underwentany change in the later extensionsof its use. The
firststandingcourt to be organized,that de repetundis(149
B.C.), was obviously intended primarilyfor the recoveryof
extorted moneys and such financialpenalties as the law al-
lowed.45 Since, however, the accused might choose to run
away ratherthan pay, and generallydid, the interdictio was
also used to declare this exilejust, and to preventany return.46
This was not the sentenceof the court,47 nor is it at all reason-
42 Op. cit. p. 72; cf. p. 964.
I
lb. p. 935.
4 Cf. Livy xxv, 4, 9; xxvi, 3, 12.
4 At firstonly simple restitutionseems to have been required,but by the
Acilian law of 123 B.C. double restitutionwas ordered. See Mommsen,op. cit.
pp. 727 f.; Strachan-Davidson,op. cit. ii, pp. 5 ff.
46 Strachan-Davidsonwould account for the voluntarydepartureinto exile
on the groundsthat the accused fearedthe consequencesof bankruptcy(op. cit.
ii, p. 3), or desiredto avoid trial on capital chargeswhichmightfollowcondem-

nationforrepetundae (II, pp. 4, 12). Such apprehensionswouldundoubtedlybe


urgent,but sincethereseemsto have been nothingto preventthe accused from
takingaway withhim all his portableassets,includingprovincialacquisitions,
it seems to me unnecessaryto look furtherfor motives of retirement. Cf.
Greenidge, Legal Procedure of Cicero's Time, pp. 504 ff.
47 That exile was not a necessaryresult of condemnationis seen by the
recorded cases in which personsconvictedfor repetundaecontinuea political

This content downloaded by the authorized user from 192.168.82.218 on Sat, 8 Dec 2012 23:18:43 PM
All use subject to JSTOR Terms and Conditions
14 Harold Bennett [1930

able to suppose that the evasion of financialrestitutionto


provincialswould have been considered sufficientcause for
degradingan ex-governorof a Roman province into a sacer
homo,a fugitivecriminalwho mightbe killed with impunity.
In these cases, as in the former,I thinkwe must admit that
the interdictmerely took cognizance of the voluntary re-
linquishmentof Roman citizenship,and the injunction laid
upon the remainingcitizeinswas not to kill, but to withhold
all aid or comfortoniRoman soil.
This would seem to me stillto hold truein the finaldevelop-
mentofthe interdichio underthe Republic, when it became the
regularverdictof the standingjury courtsset up by Sulla and
his successors. The only difference fromthe precedingstage
was that whereasformerly it was employedas a substitutefor
a sentencewhichhad been evaded, it now became the sentence
itself. Instead of recognizingthat an individual citizen had
chosen to go into exile, it made him choose to go.48 Cicero's
statementto the effectthat no crimeat Rome had ever been
punishedby exile49 is true, but partakes of legal sophistry.50
Certainlytherewas Inoorderto go intoexile,and the changeof
citizenshipwas thereforetechnicallya voluntaryact, but the
terms of the interdictwere intendedto leave no alternative,
except possiblydeath.5' I cannot, however,accept the view
career at Rome. See the cases cited by Strachan-Davidson, op. cit. if, p. 13.
When Cicero talks of the 'blood' and 'life' of Flaccus as being at stake, I think
we must make more allowance for oratorical hyperbole than does Strachan-
Davidson.
48 Cic. pro Domo 78: qui erant rerum capitalium condemnati, non prius hanc

civitatem amittebant quam erant in eam recepti quo vertendi, hoc est mutandi,
soli causa venerant. Id autem ut esset faciundum, non ademptione civitatis,
sed tecti et aquae et ignis ademptione faciebant.
49 Caecin. 100. Cf. pro Domo 78.
50 As can be shown by Cicero's own evidence, pro Domo 72: exsilium . . . est
turpe . . . si est poena condemnati. Cf. Mommsen, op. cit. p. 945, n. 1;
Greenidge, op. cit. p. 513.
51Though the interdict, in itself, was neither a sentence of exile nor of death,
it was certainly intended to lead to either the one or the other, and therefore
might justifiably be described as a judgment 'de capite'. Cf. Cicero, pro Clu.
148: de capite ejus quaerito.

This content downloaded by the authorized user from 192.168.82.218 on Sat, 8 Dec 2012 23:18:43 PM
All use subject to JSTOR Terms and Conditions
Vol. lxi] Sacer Esto 15

that the interdictiowas itself a sentence of death and the


equivalent of yacratio.52 The State still directedits order to
all other Roman citizens rather than to the guilty man;
theoreticallyhe remained a free agent, but all others were
ordered,on pain of death, to refusehim the necessitiesof life
anywhereon Italian soil.53 Had he become sacer on the pass-
ing of the sentence,he would have gone in peril of his life
every momentthat he stayed on Italian soil; yet we find it
explicitly stated that Milo, who certainly would not have
escaped throughlack of a volunteerexecutioner,leftRomnefor
Marseilles " intrapaucissimosdies." 54 It seemsto be implied
that he mighthave stayed a while longerhad he so desired.
Unquestionablythe interdictio of Cicero's day did achieve its
object of forcingthe condemnedlmen into exile, but I findno
evidence that in orderto reach the haven of safetythey had
to run the gauntlet of death, with every man's hand armed
against them.
Such a conditiondoes not seem to have obtained even ifthe
interdictusbrokethe ban and returnedto Italy. By so doing,
he undoubtedlymade himselfliable to a penaltyofdeath,55but
there is no reason to believe that the law either ordered or
permittedany private citizen to kill him. Indeed, such evi-
dence as can be foundpoints quite definitelyin the opposite
direction. The case of Oppianicus is the best example.56
Condemnedby a jury courtin 74 B.C. on a chargeofattempted
poisoning,he had been made aqua et-igni interdictus. It is
doubtful whether he ever left Italy. Cicero describes57
This opposition between theoretical liberty and practical coercion, so dear to
the lawyers of the Republic, was not so pleasing to the plain-speaking autocracy.
Tiberius changed the poena legis Corneliae to deportatio.
52 As maintained by Strachan-Davidson, op. cit. ii, pp. 23, 31.
53 For the condition of an interdictus in Italy see Cicero, pro Clu. 170:
adeone erat stultus ut illam, quam tum ille vivebat, vitam esse arbitraretur,
damnati, exsulis, deserti ab omnibus, quem propter animi importunitatem nemo
recipere tecto, nemo adire, nemo adloqui, nemo adspicere vellet?
54 Asconius, in Mil. 48. See Strachan-Davidson, op. cit. ii, p. 63.
55See the statement of the Clodian law against Cicero; Dio C. xxxviii, 17.
56 But Quintus Pompeius,
condemned de vi in 52 B.C. seems to have been
living -in Italy unmolested during the following year; Cic. ad Fam. viii, 1, 5.
57 vro Clu. 175 et vassim.
2

This content downloaded by the authorized user from 192.168.82.218 on Sat, 8 Dec 2012 23:18:43 PM
All use subject to JSTOR Terms and Conditions
16 HaroldBennett [1930

him as suffering the disabilitiesof an outlaw, wanderingfrom


place to place and findingno receptionanywhere,but finally
betaking himselfto C. Quinctius, in the Falernian territory,
wherehe fellill and remainedfora long time,seriouslyindis-
posed. During this time,Sassia, his wife,who was with him,
but (as Cicero ironicallyremarks)thoughtthe legitimacyof
the marriagehad been set aside by her husband's conviction,
became a party to an intriguewith a local farmer,and their
conduct was reported to Oppianicus by a faithful slave.
When he began to recover, therefore,Oppianicus left that
region and set out for Rome, where he had some lodgings
outside the city gates. There he presentlymet his death, as
Cicero says, due to a fall fromhis horse,but as Sassia claimed,
due to poison administeredby an agentofherson,A. Cluentius
Habitus, who was put on trial formurderin 66 B.C. Cicero
defendedhim,and soughtto establishhis innocenceby proving
a lack of motive, and by exposing the evil characterof the
primemoverin the prosecution,the woman Sassia. Nowhere
in his wholedefencedoes Cicero give any hintthat Oppianicus
was at the time of his death a sacer homo,a fugitivefromthe
law, who mightbe killed with impunity. It may be urged
that he avoided this formof defenceon account ofthe infamia
involved,or simplybecause his clientreallydid not cause the
death of Oppianicus, but the fact remains that the alleged
killingof an individualaqua et igni interdictus could be made
the chargein a capital trial directedagainst a Roman citizen.
If it be asked what would have been the properprocedure
against Oppianicus,or any otherinterdictus who brokethe ban,
we can answer only by citingthe generalprincipleof Roman
law, forthere is no actual case on record. Presumablysuch
an individual was, like any other foreigner,subject to the
magistrate's sentence of death, without appeal. This is
clearlynot the same thingas to become sacer.
Sacratio capitis, however,was still possible in Rome in the
last centuryof the republic,and to defineits use we cannot do
betterthan to come back to VerriusFlaccus. Apparentlyhe

This content downloaded by the authorized user from 192.168.82.218 on Sat, 8 Dec 2012 23:18:43 PM
All use subject to JSTOR Terms and Conditions
Vol. lxi] Sacer Esto 17

meant exactly what he said: "Sacer homo is est quempopulus


judicavit." There were, however, very few crimes left for
which comitial trial (or more accurately,comitial appeal) on
the death sentencewas still required. Most of the old leges
sacrataehad becomeobsoleteor had been replacedby laws with
milderpenalties. However,parricide(at least untilabout the
time of Sulla), perduellio,violationofa tribune,and attempted
usurpationof monarchywere still punishableby death.58 As
examples of such cases we may cite the parricidesQ. Fabius
and Malleolus (about 100 B.C.), of whom certainlythe latter,
and probably both, perished in the sack.59 L. Cornelius
Merula and Q. Lutatius Catulus in 87 B.C. committedsuicide
ratherthan await the outcomeofa trial; 60 doubtlessthepenalty
would have been death. The centurieswere certainlycalled
upon for judgment in the final stage of the prosecutionof
Rabirius in 63 B.C., and Cicero's language makes it clear that
a verdict against his client would still have meant death,61
even thoughthe earlierthreatof crucifixion had been removed.
The old theoryalso still held good that a man makinghim-
self liable to sacratio mightbe killed firstand proved guilty
later. The tribunemay still throwfromthe rock the citizen
who has violated his sacrosanctitas,62 and Brutus can claim
justificationon the groundthat Caesar has put himselfbeyond
the protectionof the law by his usurpation of monarchical
power.63
My conclusionis, therefore,
that the sacer homowas nevera
picturesque outlaw, running the gauntlet of a thousand
68 Also, apparently,the givingof fireand waterto an interdictus, thoughno
such prosecutionis recorded.
59 Oros. v, 16, 23; vi, 16, 8. Livy, Epit. 68. Auct. ad Herennium i, 13.
60 App. B.C. I, 74. Val. Max. ix, 12, 4-5. Flor. ii, 9, 15-16. They had, of
course, committedno crime save that of political oppositionto Marius and
Cinna, but it would seem that they were held fortrial by a show of regular
procedure, probably on a charge of perduellio. See my Cinna and His Times,
p. 27.
61 Pro Rabirio 16. For full discussionof this and other cases of comitial

trial, see an article by E. G. Hardy, J. R. S. iII (1913), 25-59.


62Vell. ii, 24, 2. Cf. Hor. Sat. i, 6, 38 f
63 Appian,B.C. ii, 119, 127, 128.

This content downloaded by the authorized user from 192.168.82.218 on Sat, 8 Dec 2012 23:18:43 PM
All use subject to JSTOR Terms and Conditions
18 Harold Bennett [1930

chances of death, hiisgoal a sanctuarv beyond the borders of


his countrv,64 but that he was merelya citizen condemnedto
death for a heinous criminaloffence,and regularlyr executed.
On account of the primitiveassociation of law with reli-
gion, this penalty was at firstregardedlas a sacrificeand per-
formedonlv by a magistrateinvestedwith the rightto have
dealings withthe gods, but the loss of the ax fromthe magis-
trate's fasces, combined with a more secular conception of
criminallaw-,led to otherformsof executionand otherexecu-
tioners. The definitionof Verrius Flaccus is an adequate
descriptionof the practiceof the whole republicanperiod,and
in the clause "neque fas est eum immolari" glances back at
the earlierconditionin orderto deny its possibilityat any time
"since the people has been the judge ". Practically,however,
the pronouncementof the death sentence by the people was
in the later part of the Republic almostunknown,and withits
virtualdisappearancethe sacer homobecame the subject of an
antiquarian's definitionratherthan a figureof Roman life.
64 This description fits the proscriptus, but the victims of proscription were

hunted down not because they were sacri, but because there was a price on their
heads.

This content downloaded by the authorized user from 192.168.82.218 on Sat, 8 Dec 2012 23:18:43 PM
All use subject to JSTOR Terms and Conditions