THE INVENTION OF MURDER:
HOW THE ANCIENT ROMANS CODIFIED THEIR BIZARRE VIEWS ON MURDER
Way back in the semi-mythical mists of Roman time, for the first three hundred years of Rome’s existence, there was no written law. What was and wasn’t legal was up to the king, and then, when kings were booted to the kerb, to the priests. In 451 BCE, however, it was decided, for whatever reason, that this situation was not a sustainable or useful way forward for Rome. Romans being Romans, a fundamentally pragmatic people, they decided to set up a committee to deal with the situation. This committee, of ten men with consular imperium, put together ten tablets of laws and then bolted on another two tablets the following year. These were known as the Twelve Tables and they were carved into either ivory or bronze and hung in the Forum Romanum so that every Roman citizen would know their rights and obligations. These were the Romans’ Ten Commandments, and they are primarily concerned with the administration of debts and courts. As far as anyone can tell, the first law the Romans wrote down, on tablet one of their epoch- and civilization-defining law code, the basis for Western law for millennia, was: ‘When anyone summons another before the tribunal of a judge, the latter must, without hesitation, immediately appear.’ As I say, they were a remarkably pragmatic people.
The Twelve Tables are now almost completely lost, existing in fragments scattered across about five hundred years’ worth of Latin literature. While the internet likes to suggest that you can read the Twelve Tables and offers a number of lovely extant-seeming translations, what we actually have is numerous decontextualized snippets and allusions to the Twelve Tables, most of which are considerably more cryptic than is ideal. The fragments that survive are of a law code that avoided the abstract and the communal and focused almost entirely on relations and interactions between individuals, with a very strong focus on property rather than morality or ethics. They’re full of mundane things like how debts have to be paid within thirty days, judges have to make decisions before the sun has set on the court, women mustn’t scratch at their faces during funerals, a tree is worth twenty-five asses† if it’s illegally cut down, and so on. At a gut level, it seems that murder would count as an interaction between two individuals and would require legislation, but that is not the case. In the fragments of the tables that remain, the lawmakers instead appear to have been more interested in emphasizing when homicide was lawful rather than delineating when it was unlawful. For example, one of the clearest fragments states that if someone is caught while in the process of theft and killed, then that homicide is lawful.
The Twelve Tables also emphasize that fathers have the power of life and death over their legitimate sons (more on this later) and have the right to kill any children born as ‘monsters’ (this too). We also see a number of ways in which the Roman court, as representatives of the Roman city-state, were allowed to kill their citizens, including by throwing them off a big rock, scourging them, throwing them in the Tiber in a bag, something odd that no one understands involving a dish and a girdle that may or may not be a death penalty, being burnt to death, being sacrificed to Ceres, or being beaten to death with rods (that last one was the punishment for writing mean poems about other people). Giving false testimony was punished by being thrown off the Tarpeian Rock (the afore-mentioned big rock, which is the cliff of the Capitoline Hill). Punching a free man’s teeth out, however, just cost three hundred asses.
We have just two mentions of what we might now call murder in the Twelve Tables, but which actually refer to unintentional and intentional homicide. The difference between murder and intentional homicide is, of course, moral judgement. Murder is a moral outrage; intentional homicide is just a legal thing that happens. The death penalty is intentional homicide; it is not murder. It’s reasonably safe to say from the two extracts that we have that the Twelve Tables didn’t really contain a murder law. The first part of what it did have is extracted from two oblique references from Cicero, primarily a defense of a man called Tullius which manages to break off in the middle of the significant sentence. It reads: ‘Who deserves to be pardoned more than a man who has killed by accident for there is a law in the Twelve Tables “if a weapon escapes from a hand ” ’. There it ends. This is the kind of inconvenient survival of source that I take as history trolling us. Thankfully, we also have a deeply tedious treatise called the Topica in which Cicero wangs on about Aristotle for ages and then suddenly says, ‘For to shoot an arrow is an act of intention; to hit a man whom you did not mean to hit is the result of fortune . . . if a weapon has flown from the man’s hand rather than been thrown by him.’ From this, we can infer that the Twelve Tables said something along the lines of ‘it’s only murder if you mean it’, which is very similar to our own differentiation between murder and manslaughter, but without the concept of manslaughter. This isn’t exactly clear, though, or indeed as clearly discussed or considered by later Roman authors as those laws about debt and hair rending.
That was it for murder as far as the earliest Roman law code was concerned. The Ten Commandments are ten sentences long and even they’ve got more in them about murder.† The Ten Commandments have somewhat misled modern readers into thinking that written law has always been interested in moral issues like murder and adultery, when really only religious law is interested in those things. Roman law had no particular interest in legislating morality at the beginning.
That was the situation until sometime in the third century BCE, possibly around 286 BCE, when a Tribune named Aquilia got the Lex Aquilia passed via a plebiscite (basically a referendum). We know of this law because it survives in a text from late antiquity called Justinian’s Digest. Justinian was the Byzantine emperor from 527 to 565 CE and he is mostly remembered for building the Hagia Sophia in Istanbul, being accused of being a literal demon by a contemporary historian and for the corpus of civil law that he put together. So a mixed legacy. Essentially, Justinian got fed up with a legal system based on a series of badly recorded, often contradictory and usually obscurely worded laws, judgements and imperial edicts dating back to the Twelve Tables, so he asked a set of legal experts to take a look at that one thousand years’ worth of material and tidy it up a bit. The Digest is one of the products of that astonishingly successful project—the success of which really demonstrates the occasional efficiency benefits of a monomaniacal dictatorship—a collation of thousands of legal commentaries on the actual application of laws in the later Roman Empire. From this, we have access to the application and perceived meaning of many laws which, themselves, have been lost. The Lex Aquilia is one of these and it dealt with property damage. It was concerned with the circumstances under which someone who damaged someone else’s property had to pay compensation, which seems unrelated to murder until you look at section one of the law, which goes like this:
Where anyone unlawfully kills a male or female slave belonging to another, or a quadruped included in the class of cattle, let him be required to pay a sum equal to the greatest value that the same was worth during the past year.
Do you see what’s happened here? The law deals with enslaved people, who the elite Roman lawmakers considered to be identical to four-legged animals that hang out in herds. 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. (There are also a couple of sentences on whether an elephant counts as cattle. Conclusion: no.) These hypotheticals go like this:
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.
What is happening here is that a kid is hit on the neck with a replica foot and his eye is destroyed. How did the eye get involved here? It is very disturbing but not, note, illegal under the Lex Aquilia.
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.
I 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?’, much like my personal favorite hypothetical:[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.
What a wonderful imaginary series of events for multiple legal scholars to have worried about!
This is what the commentary on the Lex Aquilia is: a series of nasty and brutal ways in which men, women and children unlucky enough to be enslaved to the Romans could be maimed and killed, both accidentally and on purpose. 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. Reading it is like finding Patrick Bateman’s diaries: a sickening litany of violence committed casually, and this is why the Lex Aquilia has been seen as a murder law. It describes a lot of killings. 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’.
To a Roman reader, though, reading the Lex Aquilia is akin to reading a list of ways in which tables might be damaged. Because this isn’t a murder law, it’s a property damage law. To the Romans, enslaved people weren’t people who can be murdered any more than cows and sheep were people. This law deals with intentional homicide because Rome survived on slave labour and enslaved people were everywhere, and sometimes people deliberately killed them for no good reason so it was necessary to ensure that their owners’ losses were repaired in these circumstances. This is intentional homicide, not murder. 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.
That’s it for homicide laws for another two hundred years, until the dictatorship of Sulla in 81 BCE changed the landscape of Rome forever. 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; centralize 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. These two simultaneous acts introduced a radical new relationship between the state of Rome and the people: Sulla centralized 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.
† An ass being a little stumpy bronze bar which rapidly stopped being worth anything when the Romans adopted proper coins. It was broadly (and reductively) equivalent to a penny.
† For wider context, the Code of Hammurabi, which is the oldest law code in the world, doesn’t have a law on murder either and is remarkably focused on property, so the Romans weren’t totally unique on this.