Crime and Punishment

When Nero was executing Christians after AD 64, why was the apostle Paul beheaded but Peter was crucified?

Mosaic of damnatio ad bestias from Zliten villa near Tripoli

Mosaic of damnatio ad bestias from Zliten villa near Tripoli

Rome was a military society in a brutal time. With first the Republic and then the Empire in a constant state of war for centuries, serving as a military officer was the essential first step in a “civilian” political career. It is no wonder that the men setting the rules of Roman society were hardened to what contemporary people would consider viciously barbaric treatment of those who broke the law. Capital punishment was standard in this society that built prisons mainly to hold the accused awaiting trial. Executions were public, and the means of execution were deliberately agonizing for the condemned and frequently entertaining for the bystanders. Execution scenes were even used for household decoration. Despite this, Rome set the standard for Western civilizations of governing by written law rather than the whims of the current ruler.

The rule of law rather than personality
Perhaps one of the greatest legacies of Rome was the establishment of a legal system based on a written code of law. In AD 530, Emperor Justinian I had almost a thousand years of Roman law (ius) compiled in the Book of Civil Law (Codex Iuris Civilis), which remained the basis of much of European law until the 1700s.

Judges oversaw courts where charges were brought and argued by prosecutors and lawyers rose to argue in defense of the accused. Records were kept of the court cases, and the results modified how the laws would be applied in future similar cases. In some cases, the convicted even had the right to appeal to a higher authority.

Starting with the Twelve Tables in 449 BC, what had been custom was written down and became well-defined laws to govern Roman behavior. For a millennium, additions and modifications to the written law were made by resolutions of the Senate (senatusconsulta), decrees of emperors, and rulings of magistrates. The practice of law was a respected formal profession. Many renowned Romans, such as Cicero, gained great fame as trial lawyers.

Lawyers for both prosecution and defense, the presentation of evidence as well as argument, a jury of one’s peers: these characterized at least some although not all trial proceedings. Although sometimes ignored or abused by emperors and governors, the written law let Roman citizens and, to some extent, even noncitizens know what to expect if they broke it.

The Roman approach to criminal justice is summed up in two words: punishment and deterrence. For most, trial came swiftly, and punishment was even swifter after judgement was pronounced. It was also public and frequently so horrible that an accused person who expected conviction might commit suicide instead. The upper classes were often given that opportunity; the lower classes, maybe not.

Prisons were for holding the accused for trial and the convicted awaiting execution. The idea of serving a specified prison term for retribution or rehabilitation followed by release was alien to Roman thought. Imprisonment was not a legally sanctioned punishment, although an accused person in the provinces might be locked up for a long time waiting for the judge to come to town. In the provinces, a governor had great latitude on how to punish noncitizens, and judicial actions might be neither speedy nor fair. Governors sometimes condemned prisoners to be kept in chains or prisons, but it was not an “official” legal penalty for Roman citizens.

Depending on the social status of the accused and the particular offense, punishment was usually a monetary fine, labor on public projects, exile, or a sentence that led to either speedy or lingering death.

One law and justice for all? No.
In the Roman system, the penalty for a given crime depended on your citizenship status and your social class. In general, punishments for the senatorial and equestrian orders were milder than that for the ordinary citizen. In the Republic and early Empire, punishment for a citizen (civis) was less severe than for a noncitizen peregrine (peregrinus = stranger, alien, foreigner), and citizens had a right of appeal not open to the peregrines. If the person was a slave, punishment was often even more severe than for a free peregrine.

By the 2nd century AD, criminal law officially treated the “distinguished” and the “humble” differently. Citizens were divided into two groups: the honestiores (more honorable) and the humiliores (lower). The distinction was not based on wealth alone. The honestiores included senators, equestrians, soldiers, and local officials. Citizens not in one of these categories were humiliores regardless of their wealth. For a given crime, beheading or exile might be the punishment for a honestior, but a humilior would die by burning, beasts, or crucifixion or become a penal slave to be worked to death in the mines or quarries. The fate of the humiliores had become scarcely better than that of noncitizens.

Criminal and civil courts in Rome: Not prosecuting what you might expect
Few things remain static for over a thousand years. The Roman court system changed from Republic to Empire, and further changes occurred over the centuries of the Empire.

At the time of Cicero (early 1st century BC), there were two urban courts in the city of Rome: one for citizens and one for noncitizens. They were presided over by praetors, the second political post in the cursus honorum (course of honors) followed by senators seeking a political career. The two consuls could take jurisdiction and reverse a praetor’s ruling when they wished. A person unhappy with a ruling could also try to get the tribune of the plebs to intercede, but there was no formal process for appeal. Gradually the citizen/noncitizen distinction disappeared, the number of courts increased, and each court specialized in certain types of cases. Local courts existed throughout the province of Italia, but they could only hear civil suits with upper limits of 15,000 sesterces, and litigants could demand transfer to the courts in Rome for trial.

Many offenses that we would consider criminal were tried in Roman civil courts, especially if the persons involved were not from the senatorial or equestrian orders. Each court heard cases for specific types of crimes. Most violent crimes and virtually all property crimes involving only lower-class people were “civil” matters.

By the 2nd century BC, permanent criminal courts specializing in different types of crimes were established for upper-class offenders. These standing jury courts (quaestiones perpetuae) each dealt with a particular type of statutory offense using large juries selected from an annual list of the upper class. Their majority verdicts could not be appealed. The quaestiones were presided over by praetors. Serving first as a praetor was the requirement for service as governor of a province. Since the governor was the supreme judge in a province, the praetorship provided useful training.

These courts largely heard cases involving political crimes by the upper classes such as treason (maiestas) and bribery, especially to influence elections or political leaders. Criminal cases involving the lower classes were still prosecuted in civil courts. By the 3rd century AD, crimes involving senators were tried in the Senate with a jury of their peers. The emperor sometimes tried cases himself.

During the Principate (from Augustus to Carinus in AD 285) the standing jury courts were gradually replaced by “extraordinary” courts with delegates of the emperor presiding. Although the quaestiones were no more, the extra ordinem courts retained the same standard legal charges and penalties.

Trials in the provinces: Almost anything goes
In the provinces, legal matters were under the control of the governor, who had already served as a praetor in Rome. All suits involving Roman citizens came to him. Civil suits restricted to noncitizens might be handled by municipal courts in accordance with local laws and customs.

In criminal cases, the governor had sole authority, and he had no limitations on how he treated noncitizens. During the Republic, limitations were set for citizens by the right of appeal to the people (provocatio ad populum) that would transfer the case to a court in Rome. In the early Empire, this turned into an appeal to Caesar, and any citizen could appeal to have his case transferred to Rome. As a Roman citizen, Paul appealed to Caesar, as reported in the Acts of the Apostles in the New Testament, and went to Rome to be heard by Nero. Noncitizens had no right of appeal.

A provincial governor was not limited by the statutory offenses governing the courts in Rome. During the Republic, he could try on any pretext and inflict any penalty he wanted to maintain order in his province. His power was not significantly changed in the early Empire, but the rules were somewhat different, depending on the type of province. In senatorial provinces, which were away from the frontier and generally peaceful, the governor had to handle capital offenses but could appoint a delegate for less serious cases. In the imperial provinces, where the governor was the commander (legate) of at least one legion and often consumed with military affairs, the emperor might appoint a legatus iuridus to carry the daily burden of legal matters.

While a governor had extreme power over the residents of his province, he was expected to behave with some level of honor. Excessive corruption could lead to trial when he returned to Rome, especially if citizens were the victims.

Law Enforcement
Rome did not have a civilian police force. Enforcement was provided by ordinary military personnel in the provinces. Garrisons were scattered strategically to provide patrols. Given the thousands of miles of roads spanning the Empire, one can imagine how easy it was for bandits to strike where the soldiers weren’t. Traveling alone was a dangerous proposition and could end up with the traveler being kidnapped and sold as a slave. Kidnapping (surripio, praeripio) was a serious crime. The crime of plagium (knowingly detaining a free Roman citizen or a slave belonging to another), while serious, was a civil offense normally covered by a fine.

Special military units enforced the law within Rome proper. The urban prefect (praefectus urbi) was a senator who commanded three cohorts (500 men each under Augustus, doubling to 1000 under Vitellius, and increasing to 1500 under Severus). These were responsible for policing ordinary crime in the city and within a 100-mile radius around it.

Fire was a serious problem in a city of poorly built apartment buildings where braziers were used for heating and cooking. After a fire in AD 6, Augustus established the vigiles, a permanent fire brigade who patrolled the city. With authority to enter any building to inspect for fire hazards, they often ran across criminal activity. They served as the night watch in addition to their fire-fighting duties. Seven cohorts of 500 to 1000 men served as vigiles, under a praefect vigilum of equestrian rank. Each cohort was quartered in a different section of the city.

Christ on the Cross (1846) Eugene Delacroix

Christ on the Cross (1846) Eugene Delacroix

Punishments
Under the Roman legal system, the convicted criminal could not expect a well-defined prison term with possible time off for good behavior. Punishment was swift and usually inexpensive. There was no imperial budget for long-term incarceration.

Torture was not considered a legal penalty. It was a standard interrogation method for extracting truthful evidence. It was mandatory for slaves if the evidence they gave was to be admissible in court. There had to be some prior evidence for them to either corroborate or refute. If a master was killed, all his slaves were tortured to see if they were part of it. Even if they weren’t, they might all be executed because they failed to stop the murder. When Lucius Pedanius Secundus, a former consul and urban prefect at the time of his murder, was stabbed by one of his slaves in AD 61, the Senate, led by Gaius Cassius Longinus, demanded the execution of all 400 of his household slaves, as permitted but no longer required by Roman law. The common people demanded the release of the innocent slaves, but Nero used the army to ensure the executions were carried out.

Torture was optional for noncitizens. Augustus wanted to restrict torture to capital and other heinous crimes. Torture of citizens was generally not allowed during the Republic, but that changed in the later Empire after citizenship was extended to almost all free people by Caracalla. Torture was used more in the Principate (when the emperors ruled). A Roman citizen could appeal against being tortured. However, it was standard for treason, even for citizens.

During the Republic and early Empire, being a Roman citizen was tremendously valuable for anyone accused of a crime. Citizens were tried in different courts than noncitizens, and much milder punishments were meted out for conviction of identical crimes. Beheading instead of crucifixion, exile instead of slavery in the mines or quarries until you were worked to death: being a citizen had tremendous advantages.

The benefit of citizenship is dramatically displayed in the fates of the apostles, Peter and Paul. Peter, a Jew from the province of Judaea, was crucified by Nero while Paul, a Roman citizen from Tarsus in the province of Cilicia, was merely(?) beheaded.

Sentences after conviction of a crime
Sentences were divided into two general categories. The convicted criminal could be condemned to physical labor or to immediate execution.

Sentenced to physical labor
For relatively minor crimes, a person might be condemned to work on public projects for a fixed period of time. Projects included building roads, maintaining aqueducts, and cleaning and maintaining sewers and public accommodations such as latrines and public baths. The convicted person did not lose Roman citizenship and was released after the labor was completed.

During the Principate (early Empire), new types of condemnation to labor were in essence slow death sentences. One such sentence was damnatio in metalla or damnatio ad metalla. This stripped the convicted persons of citizenship and made them penal slaves. They worked in the mines or quarries until they died, which usually didn’t take long.

A second was damnatio ad gladium. The convicted person was stripped of citizenship and might be sent to gladiator school to fight as a penal slave. This was a swift death sentence if one wasn’t very skilled with weapons. In theory, it was possible to earn freedom if you could avoid being killed long enough for the crowd to want you freed. Not all were given this “mild” version of the sentence. Some were executed in a serial fashion where two prisoners were paired, one armed with a sword and the other not. The armed man killed the unarmed. He was then disarmed and a new armed prisoner killed him. The process was repeated until the last prisoner was executed for the entertainment of the crowds that day.

Senators and equestrians generally received milder sentences than the common people. The upper classes were often allowed to go into exile instead of to the mines. There were two levels of exile. With relegatio, the convicted person was expelled from Rome or a province but retained citizenship and usually retained property. With deportatio, the convicted one lost citizenship and property and was banished to a specific remote place.

Sentenced to death
For a Roman citizen, the most common mode of execution was beheading. Noncitizens, free or slave, were not so fortunate. There were several especially severe forms of execution called summa supplicia.

Crucifixion (crusis supplicium) was generally reserved for non-citizens and slaves. During the early Republic, it was used for incest and treason. It was always used for slave revolts. There were three great slave revolts during the Republic: two in Sicily (135-132 and 104-101 BC) and one in Italy, led by the Thracian gladiator Spartacus in 73-71 BC. The consul Crassus who defeated the slave army of Spartacus had 6000 men crucified along 350 miles of the Appian Way approaching Rome from the south. It proved an effective deterrent. That was the last major slave revolt.

Burning alive was used for arsonists and treachery. When Nero accused the Christians of starting the fire of AD 64, he chose to execute many by using them as torches in his garden.

Being fed to the beasts in the arena (damnatio ad bestias) was part of the morning program in the arenas of the Empire. Anyone fed to beasts lost all rights as a citizen, could not write a will, and had their property confiscated.

Damnatio ad gladium sent one into the arena to die in combat. In the more extreme form, the condemned man was forced to keep fighting a new opponent until one finally killed him.

A special punishment (poena cullei) was reserved for parricide (killing one’s parent or other close relative). After a flogging, the murderer was sewn into a leather sack with a dog, a viper, a rooster, and a monkey. The viper was standard, but the other animals may have varied over time. The sack was then thrown into the nearest body of water deep enough for drowning or suffocation if the sack was sufficiently watertight. The Tiber was used in Rome, but any river or ocean could be used.

The Christian Martyrs' Last Prayer (1863-1883) Jean-Léon Gérôme

The Christian Martyrs’ Last Prayer (1863-1883) Jean-Léon Gérôme

Christians classified as among the worst criminals
While Christians were regarded as a sect of Judaism for the first few years, they were partially tolerated by the state. That soon changed. Nero used the Christians as scapegoats for the fire of AD 64 that burned large areas of Rome, killing many for his own entertainment in his private circus. Trajan expressed his approval of Pliny the Younger’s policy in Bithynia and Pontus of giving Christians three chances to recant and sacrifice to Caesar before executing them.

Why was being a follower of Jesus of Nazareth considered a heinous crime by the Roman authorities, condemning them to damnatio ad bestias in arenas around the Empire? There were several reasons based on Roman law.

1) Treason
Christians were considered guilty of treason (maiestas). When it became mandatory to honor images of the emperor with libations and incense, they refused. Jews also refused, but they were allowed to do so by special exception as members of an officially sanctioned religion. When enough Gentiles became Christians and believers broke with following the details of Mosaic Law, Christianity was no longer considered a sect of Judaism. Under the rules of the Twelve Tables, Christians followed a new, foreign, and unauthorized religion (religio nova, peregrina et illicita).

2) Sacrilege
The Christians’ refusal to worship the state gods was considered a sacrilege that might bring down the wrath of the Roman gods, threatening the Empire with disaster. The state religion was dependent on the rituals being performed correctly, regardless of the personal beliefs of those celebrating. There was a strong element of magic in the rituals, and the slightest mistake could render the ritual ineffective. The refusal of Christians to participate was, therefore, totally unacceptable.

3) Unlawful assembly
Rome did not allow freedom of assembly. During the Republic, any meeting with political overtones had to be presided over by a magistrate. The distaste for unsupervised gatherings continued into the Empire. Guilds (collegia) and associations (sodalicia), especially secret societies, were suspect for political reasons. From the mid-50s BC on, guilds and associations had to obtain a license from the state and were not permitted to meet more than once a month. Christians gathered in secret and at night, which made their gatherings “unlawful assemblies,” throwing them into the same class of crime as riots.

The use of damnatio ad bestias for the offense of merely being a Christian was embraced by Nero, but the sentence was not applied at all times and in all parts of the Empire. Other methods of execution were employed where no arena was handy. The enthusiasm with which a particular province persecuted its Christians varied with the individual governor when there was no specific imperial edict in effect. Emperors who decreed Empire-wide persecution included Marcus Aurelius (AD 177), Trajan Decius (AD 249-251) Diocletian (AD 284-305), and Maximian (AD 286-305).

Sources

Aldrete, Gregory S. Daily Life in the Roman City: Rome, Pompeii, and Ostia. Westport, CT: Greenwood Press, 2004.

Angela, Alberto. A Day in the Life of Ancient Rome. Translated by Gregory Conti. New York: Europa Editions, 2009.

Carcopino, Jerome. Daily Life in Ancient Rome: the People and the City at the Height of the Empire. Edited by Henry T. Rowell. Translated by E. O. Lorimer. New Haven and London: Yale University Press, 1968.

Crook, J. A. Law and Life of Rome, 90 BC.―A.D. 212. Ithaca, NY: Cornell University Press, 1967.

Knapp, Robert. Invisible Romans. Cambridge, MA: Harvard University Press, 2011.

Webster, Graham. The Roman Imperial Army of the First and Second Centuries A.D. 3rd ed. Norman, OK: University of Oklahoma Press, 1985.

Image Sources:
The Christian Martyrs’ Last Prayer (1863-1883) Jean-Léon Gérôme and Christ on the Cross (1846) Eugene Delacroix are both at the Walters Art Museum, Baltimore, MD
The Zliten Leopard is a floor mosaic found at Zliten, near Tripoli in North Africa. Image in public domain.

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Fact and Fiction by Carol Ashby