A Fatal Thing Happened on the Way to the Forum: Murder in Ancient Rome

by Emma Southon

The Lex Aquilia deals with sheep and cows and goats and enslaved people. To the modern reader, used to seeing every person as a person, therefore, it deals with murder because the commentaries that follow this section consist of over seven thousand (Latin) words of Roman legal scholars imagining hypothetical ways in which enslaved people and children could be killed and debating whether the person who killed them was liable to pay compensation to their owners.

A shoemaker, while teaching his trade to a boy who was freeborn and the son of a family, and who did not properly perform the task which he had given him, struck him on the neck with a last, and the boy’s eye was destroyed. Julianus says that, in this instance, an action for injury will not lie because he inflicted the blow, not for the purpose of causing him injury, but of warning and teaching him.

The Lex Aquilia will apply where anyone who has been too heavily laden throws down his load and kills a slave; for it was in his power not to be overloaded in this manner.

like this because it suggests that Roman lawmakers want everyone to be thinking all the time ‘if I fell on an enslaved person or cow while doing this, would it kill them?’,

[I]f while several persons are playing ball, the ball having been struck too violently should fall upon the hand of a barber who is shaving a slave at the time, in such a way that the throat of the latter is cut by the razor; the party responsible for negligence is liable under the Lex Aquilia. Proculus thinks that the barber is to blame; and, indeed, if he had the habit of shaving persons in a place where it is customary to play ball, or where there was much travel, he is in a certain degree responsible; although it may not improperly be held that where anyone seats himself in a barber’s chair in a dangerous place, he has only himself to blame.10

In the Lex Aquilia enslaved people are beaten while ill, thrown from bridges, poisoned, stabbed, strangled, starved, trampled by mules, eaten by dogs and burnt.

It even usefully defines killing as something ‘done either with a sword, a club, or some other weapon, or with the hands if strangulation was used, or with a kick, or by striking him on the head, or in any other way whatsoever’.

A person who kills an enslaved man, woman or child has to pay their owner their value. It is the owner who has been injured by their death and the owner whose loss must be made good. The life of the enslaved person is not the loss; their labour is.

Sulla led a decade of civil war between him and Gaius Marius which he eventually won. His prize was that he got to be dictator, an emergency short-term position within the Roman constitution, basically a version of martial law, held absolute power for a year and was able to make all the laws he liked. His main aims as dictator were threefold: reduce democracy; centralise power on the Senate; and kill as many enemies as possible. And so he executed four hundred senators and sixteen hundred equestrians and simultaneously enacted the first true murder law, known as the Lex Cornelia de Sicariis et Veneficiis, which (very) roughly translates to the Cornelian Law on people who carry swords and also magicians.

Sulla centralised power and this included the power to kill. For the first time, the Roman state decided that it could interfere in what had previously been private interactions between families. For the first time, the Romans legislated the lives and deaths of free citizens. Murder was invented.

apparently dudes with knives who intended to kill. There’s quite a lot of academic debate over whether this court included ‘amateur’ murderers or just ‘professional ones’ but it is enormously technical and very, very boring. It exists because whatever law was being enforced by Gaius’ court is lost completely and we have no records of any of the trials that took place there so we have simply no idea what they were for or what they did.

Sulla, on the other hand, decided it was only important to be very, very clear on the precise acts that he was legislating against and so he explicitly outlawed killing people on purpose with arson, by giving false evidence or arranging for people to give false evidence in court, by presiding over a criminal trial with the intent of executing someone, by taking bribes so that someone will be found guilty, or – weirdly – by poison, and ruled that it was no longer legal to carry a knife or weapon in Rome with the intent of killing someone.

The Lex Cornelia paints a picture of a scared and vengeful segment of society who had spent ten years killing one another on battlefields and absolutely were not over those wartime resentments. It exposes a legal system that appears to be completely rotten with false evidence, corrupt magistrates and vindictive judges, and a Rome that is riddled with mysterious deaths by poisoning and plagued by gangs of armed men roaming the streets, all of which Sulla needed to fix.

Hadrian’s edict was a very casual but very significant encroachment of the Roman state into private lives and actions. He wrote: he who kills a man, if he committed this act without the intention of causing death, could be acquitted; and he who did not kill a man but wounded him with the intention of killing ought to be found guilty of homicide.

Or, at least, as far as the modern Western state is concerned, there are two victims in every murder: the person who bled out on the floor and the dignity of the state.

The victim of a murder or attempted murder cannot decide not to press charges against a perpetrator because, although they are a victim, they are not the only victim and they are unable to define what is and isn’t a crime worth prosecuting. Also, they are usually dead.

The Roman state, at least until the dawn of the Imperial period, did not consider itself to be harmed, threatened or challenged when a man strangled his wife or stabbed a rival. That was their personal business. And it was the personal business of the victim’s family to sort out the harm done and make things right either by having a chat with the perpetrator or by employing an advocate and taking the perpetrator to court.

The responsibility for investigating, prosecuting and punishing a murder was entirely on the family and friends of the deceased.

What we see in these surviving laws is the evolution of the idea of murder as a crime, as something which harms the state and is to be regulated by the state, in parallel with the evolution of the Roman state into a centralised, military-backed absolute monarchy. This is not a coincidence. As the power of the state came more and more to rest on just one man, the emperor, the state slowly took control of the power to kill and reduced the power of the family and the individual.

parricide refers to the killing of any ancestor – any member of the family of a generation above the murderer – but in Roman law it applies to any family member, including patrons. Romans were weird about parricide, in that it is the only form of murder we know that was definitely included in the Twelve Tables, deriving from a law believed to have been set by the second king of Rome – Numa. Romans, unlike virtually any modern society, had little to no legal interest in stranger murder but a unique and deep-seated cultural horror of murder within the family.

what parricide refers to. It is the killing of one’s: father, mother, grandfather, grandmother, brother, sister, first cousin on the father’s side, first cousin on the mother’s side, paternal or maternal uncle, paternal [or maternal] aunt, first cousin (male or female) by mother’s sister, wife, husband, father-in-law, son-in-law, mother-in-law, [daughter-in-law], stepfather, stepson, stepdaughter, patron or patroness . . . And a mother who kills her son or daughter suffers the penalty of the same statute, as does a grandfather who kills a grandson; and in addition, a person who buys poison to give to his father, even though he is unable to administer it.2

It’s most likely that parricide meant patricide in common usage like homicide means murder in general to us.

the Romans sometimes also seem to use parricide to mean treason.

At least part of the evidence for the arguments that patricide was a ‘national neurosis’ for the Romans was the punishment that they came up with for it. Perhaps one of the most notorious things the Romans ever devised, it is technically known as the culleus or Poena Cullei, and is fairly regularly the subject of clickbait articles with titles like ‘This Roman Punishment Will Make You Sick!’ It’s also a really good factoid to pull out in pubs with people you barely know, so take notes. According to the Digest, it goes like this: a person found guilty of parricide was beaten with ‘blood-coloured rods’ (presumably they painted them, I guess), then put into a sack. To the sack was also added a dog, a cockerel, a monkey and a snake. And then the sack was thrown into the sea.3 I’ll let you sit and think for five seconds about the horror of being trapped in a bag with a terrified dog, and then we’ll move on to the added chaotic tangle of terror that the cockerel, monkey and snake bring to the process of drowning.

Also the Romans ritually crucified dogs every year so I put absolutely nothing past them.† They were horrid.

The point of the sack is outlined for us by Cicero in a defence speech. It was not for pure sadistic pleasure, but to prevent the profane and polluted body of the murderer from contaminating the earth, sky and water that it would otherwise touch. The point was to protect the very elements from contact with something so obscene and defiling as the body of a parricide. At the same time, the person themselves would be deprived of those base things which represented freedom and goodness and purity: the fresh air, the life-giving earth and the cleansing water. Even their bones, says Cicero, would be denied the support of the shore when they washed up. They would never receive the veneration given to the dead in their afterlife. They were, for eternity, isolated from every good and natural thing because of the all-encompassing horror of their deed.

The method of the poor man’s murder isn’t noted but Valerius Maximus, who records the case in his delightful book of memorable words and deeds, states that there were gruesome wounds and a lot of blood, which suggests that it wasn’t a quiet pillow smothering. Cloelius Senior’s body was found in the morning when someone opened the bedroom door to find a blood-soaked scene on one side of the room and the two brothers peacefully sleeping in beds on the other. Aside from the fascinating insight into sleeping arrangements in the Roman world, where two well-heeled adult men apparently shared a bedroom with their dad, the scene caused a bit of a scandal. No one had been into the room in which the three men slept and no other suspects could be found. It perhaps seems like a slam-dunk case for the prosecutor, which is why we should never assume anything about the Roman justice system. The judge decided to fully acquit the brothers on the basis that ‘it was not naturally possible’ for the men to have beaten their father to death and then gone to sleep afterwards.

Romans thought that killing a dad was so truly shocking and unnatural that it would be physically impossible to sleep afterwards.

The consilium was a family council, a group of adults in the family who came together equally to celebrate, support and police one another.

ius vitae necisque,

They show his responsibility to uphold the sanctity of the city of Rome over the love he felt for his children. If an aristocratic man’s children fucked up, they couldn’t be allowed to live and poison Rome; they had to go.

Tarquinius Superbus and his family were exiled from Rome and not executed. They were just sent away to live their lives elsewhere while Junius Brutus got on with creating a whole new form of Roman government in which he was the first consul.

Some people liked kings. Some of those people were Brutus’ two sons, Titus and Tiberius. Titus and Tiberius conspired with some unnamed like-minded individuals to bring Tarquinius and his family back to Rome and place them back on the throne. They were, of course, immediately caught and brought before the new consul, their dad.

his son, who was obviously also called Titus Manlius, was goaded by an enemy commander into having a single combat duel, just like his dad. Manlius won by, according to Livy, poking his opponent’s horse in the ear. Thrilled with his victory, feeling like he was living up to his dad’s legend, Manlius galloped back to tell his father, the great consul and general, all about it. Unfortunately for him, due to some prophecies that are irrelevant here, everyone had been ordered very specifically not to engage in fights or duels with the enemy until the formal battle. So, rather than be proud, Torquatus was furious. Well, that’s very good, son, he said. I can’t fault your bravery. But you did break my rules and so I am going to have to have you beheaded. Which he immediately did.12

It’s one of those inescapable ‘facts’ about the Romans, like Gaius Caligula making his horse a consul (guaranteed to make me scream with irrational rage) or Nero fiddling while Rome burnt (acceptable only because it spawned a cracking joke in the late 1990s when a German company called Nero made CD burning software and called it Nero Burning Rom, which made me chuckle every time I made a mix CD as a teenager).

All these stories, which make murderous fathers into glorious heroes, able to put their country above their children, are legends. They all originate in the early or mid-Republic, those misty times many hundreds of years before any of our surviving sources were written. They all come from Livy, writing his glorious history to please Augustus, and Valerius Maximus, writing decontextualised anecdotes to please and guide Tiberius, and Dionysius of Halicarnassus, also writing his history to please Augustus.

When the emperor Augustus had his daughter Julia exiled from Rome for committing adultery and pissing on the rostra, the Roman people spent all their time exhorting him to be nicer to her and bring her home. They thought him terribly cruel and unforgiving. He exiled her to what was basically a permanent detox holiday on a tiny island in the Tyrrhenian Sea. Imagine how they’d have felt if he’d executed her. In the real world, when parents really killed their children, they did so for selfish, stupid reasons and were treated as monsters.

Love between parents and children was considered to be the most natural and most basic love, the first law of nature, and parents who violated that love were just as egregious as people who killed their parents.

The most famous of all of these are Romulus and Remus, the abandoned babies who founded the city of Rome. They were the twin sons of Rhea Silva, a Vestal Virgin forced into the job by her evil uncle. Despite being a Vestal Virgin, and absolutely banned from shagging, she somehow turned up pregnant and claiming the god Mars had raped her, a story that her uncle did not believe one bit. When her twins were born, her uncle ordered the babies to be put into the river. The babies were placed in a basket and gently floated down the river far from the city. When they hit land, a wolf was drawn to the sound of them crying and allowed them to suckle from her, saving their lives. Soon afterwards, a local yokel came across the children, being licked by the wolf, and took them home to raise as his own as he and his wife had just experienced a stillbirth. The boys were raised as happy peasants until fate took its course a couple of decades later.20

No one was being prosecuted for infanticide and there were no laws against it until precisely 7 February 374 CE (at around teatime) when the power-sharing Christian emperors Valentinian, Valens and Gratian suddenly got interested and outlawed it.

Similarly, archaeology tells us that Romans did not routinely murder little baby girls because they ‘valued’ boys more. That myth, persistent as herpes, comes from a single letter from Roman Egypt and a whole lot of assumption.

that the biological sex of the skeletons (where it can be identified) is usually weighted towards male babies, or a fairly even fifty-fifty split. There is no evidence at all, from anywhere in the Roman world, of sex selective infanticide.24

Therefore, her daughter killing her was not murder, but legitimate vengeance and so the daughter couldn’t be found guilty of parricide. However, the violence of the vengeance, and the fact that killing a parent was always, always wrong in Roman eyes, meant that nor could she be acquitted of parricide. She was, she admitted, guilty but equally she was morally not guilty. This is where a charge of manslaughter or second degree murder or really any abstract concept would have come in handy, but alas the Romans weren’t keen on such things. As the woman couldn’t be condemned and couldn’t be acquitted, the court decided to just let the whole thing go, not vote at all, and really hope the entire situation went away.

The Areopagus, for those of you who haven’t been to Athens, is a very large, very pointy, very difficult to access and very uncomfortable rocky outcrop at the bottom of the Acropolis. It is where the classical Athenians tried their most important cases: murder, religious crimes, arson and the damaging of olive trees.

The members of this jury were tied by the exact same bind, and had the added pressure of not wanting to piss off their Roman overlords who had refused to make a decision. Basically any decision they made would mean that they had disagreed with a Roman official. Simply not worth the career-limiting hassle for any self-interested local statesman. The members of the Areopagus came up with a genius idea: they postponed the trial. For a hundred years. The poor woman, presumably, returned to Smyrna to try to process the horror of losing her entire family and both her sons in a brutal whirlwind of cruelty and revenge, but at least she wasn’t executed, I guess.

Secondly, we learn that Romans didn’t think that a person could be truly guilty of a murder if they weren’t in their right mind and this is perhaps the most interesting lesson: the Romans had an insanity defence.

The resulting debate in the House of Commons concluded that ‘to establish a defence on the ground of insanity it must be clearly proved that, at the time of committing the act, the party accused was labouring under such a defect of reason from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know that what he was doing was wrong’.

The Roman version of Daniel M’Naughten was Aelius Priscus, about whom we know just one thing: he murdered his mother while mad during the time when Marcus Aurelius was co-ruling with his rubbish son Commodus.

The emperors’ reply was that Scapula must establish that Aelius was definitely mad and not faking it and then, should he be determined to be genuinely mentally unwell, he should be released to the custody of his remaining family because ‘he is being punished enough by his very madness’.

As well as being responsible for the care of Priscus, the Aelian (not alien) family were also made criminally responsible if he ever hurt anyone again. In fact, our pals Marcus Aurelius and Commodus continued their letter to Scapula by insisting that he find out whether Priscus’ family were aware of his condition prior to the matricide incident and were ‘looking after him’ because ‘those who have custody of the insane are not responsible only for seeing that they do not do themselves too much harm but also for seeing that they do not bring destruction on others’.