The Roman Republic: Discovering The History of Trials Related to Homicide

Although it was not a primary concern of the Senate during the early years of the Republic, homicide did occur in Rome and was sometimes the reason for trials. As the Republic progressed, so did the occurrence of trials for homicide, and as the Republic moved into its later years, it became more prevalent in the courts. During the progression of the Republic Roman magistrates and orators at first began to customarily prosecute homicide cases for the concern of the state. For this discussion, homicide can be defined as either manslaughter or murder. In terms of the conception of the state, the definition that will be most useful is the state being defined as “the civil government of the country”[1].During the early to middle years of the Republic, the concern for the state can be demonstrated by the magistrates who presided at these criminal trials. This is still true for most of the trials in the later Republic, although the magistrates appear to have been concerned for their own political advancement as well.

In the beginning of the Roman republic, there were hardly any laws governing homicide, particularly among the plebeians. In fact, Lintott states that “the members of the plebs themselves would have suffered from violent criminal behavior.”[2] This is most likely due to the fact that senators would rather have looked out for their own interests rather than deal with a subject so nominal as the death of a nameless plebeian. It also is intriguing to note that the Twelve Tables listed in 450 BCE that killing thieves was admissible if they were still on one’s own property. However, the Twelve Tables specifically stated that poisoning was never permissible, even if poison was administered to a thief.[3] Thus in terms of laws, there were few to speak of that actually governed against any kind of murder in this early time of the Republic. Also important to note about the early Republic was the significance of the mos maiorum. The “ambiguous nature of mos”[4] which functioned on matter of precedent and essentially operated such that whenever new legal actions were enacted by a magistrate, they were upheld as law, even if they did not go through the official pathways in which to become a law. This was important to note for the magistrates’ proceedings over homicide cases, as there is no basis for homicide prosecution in the Twelve Tables.

The earliest state intervention in a homicide case where magistrates’ concern for the state is demonstrated can be seen as early as 331 BC. This early murder case prompted an investigation in which subsequently led to many women being accused of poisoning. Their victims were varied, so patricians were not the main cause for the report; however, the officials did “arres[t] a large number of other matrons who were also implicated in the crime”[5] at the end of the trial, which appears to be one of the first times in which public officials decided to initiate a trial process and possible punishment for a homicide. The fact that the perpetrators of such terrible crimes were women was specifically disturbing, because a Roman woman was customarily supposed to uphold honor and stay true to her “menfolk”, else she should be “slain”, as in the Roman myth about deceitful Tarpeia who betrayed her Roman family to the enemy.[6] The thought process likely followed by the magistrates when learning that most of the perpetrators were women was that if Roman matrons’ morality was beginning to be questioned, then the morality of Rome as a nation and the morality of its government would also start to be questioned. For although women were barred from participating in politics, they did raise the men who would later in their life be citizens and possibly civil servants of the Roman state. Therefore, these officials of the Republic initiated the first homicide trial and did so out of concern for the moral state of their country, which might likely could have affected the government itself if left unchecked.

In 135 BCE, the magistrates also demonstrated their concern for the state when they investigated a particularly gory murder case. Known as the “Sila Forest” murder for where it was committed, the event may not have enacted actual legislation, but the murder did at least prompt the consuls being “sent to conduct an investigation concerning ‘a heinous and important matter.”[7] The victims were, as Felton notes, “noti homines,” or patricians, so this was a concern of the magistrates partially because they were members of the upper class in Rome. However, because patricians served in the state government frequently, this concern for the patricians can also be linked to a concern for the state function. In addition, the Roman magistrates were motivated to respond to this act of violence because the murders occurred around a “pine-pitch factory” that was “leased from the censors”, so the reputation of the state’s own facilities were also in question at this trial.[8] Thus, one can observe that at this point in the Republic, the magistrates involved in this trial were concerned for the state specifically because the reputation of the state was at stake as well as the lives of other patricians (who served as civil servants) if other homicides such as this one were allowed to continue.

As the years progress to the Roman Republic’s later year, concern is still demonstrated for the state by the magistrates, although concern for their own political advancement is also highlighted. This is observed specifically in Cicero’s first court case, in defense of Sextus Roscius of Ameria. For example, Bauman notes Cicero was quite focused on succeeding in his first court case; he expertly discussed several laws already in place in his argument defending Roscius, which was “an important factor in persuading the jury to acquit Cicero’s client.”[9] However, he himself also appears concerned for the state’s processes, and committed to demonstrating the loopholes and problems the figures in this court case seem to have exploited and caused. He demonstrates such problems by implicating Chrysogonus, a freedman connected to Sulla, as well as certain relations of Roscius in the murder of the elder Roscius, whom Sextus Roscius was accused of murdering[10]. For example, he questions if there was “any doubt that they [Roscius’ relations] put this plunder in Chrysogonus’s way, who have received from him a share of the plunder?”[11]. By posing this rhetorical question, Cicero subtly suggested that both Chrysogonus and Roscius’ relations have something to gain from the murder of the elder Roscius. Then, he more clearly told the judges that Chrysogonus gave the property as “spoils to the Roscii” and Cicero also called the whole process a “conspiracy”.[12] Thus, Cicero displayed his concerns for the state by calling into question Chrysogonus’ actions, which undermined the systems in place regarding inheritance but also the governmental systems that have been put in place to end the “proscription lists”.[13]

Cicero’s Pro Cluentio also provides a fair example in which Cicero demonstrates his political ambitions, yet the reason for holding the trial still appears to be rooted in concern for the state. For example, there appears to be political ambitions behind Cicero’s defense of Cluentius, because he successfully acquits him of his murder charge and thus provides a model for defending alleged poisoners. Strachan notes that he “never attempts to plead that the death of Oppianicus cannot be the subject of a criminal charge.”[14] In fact, he rather pleads with the judges to “come to the assistance of the innocence of [Cluentius] attacked by a ruinous calumny.”[15] Cicero also “made some startling disclosures showing that the elder Oppianicus was really a villain and a poisoner,”[16] according to Kaufman. This was a risky step, in that poisoning was a cultural taboo (due to an early inclusion of a law condemning poisoners in the Twelve Tables) and before this case, discussing poisoning in court would have likely increased the jurors’ suspicions and lessened the respect that they might have held for Cicero. Thus, this demonstrates the courage that Cicero possessed in order to disregard the mos, discuss poisoning, and subsequently accuse Oppianicus as a poisoner, which he regarded as a concern for the state. He mostly regarded Roman poisoners as something that should concern the state because he was concerned with the morality in Rome at this point in the later Republic. He believed this “moral crisis” had already “enervate[d]” and “weaken[ed] their [the patricians’] capacity to provide strong and efficient government” to Rome. [17] Thus, in Pro Cluentius Cicero demonstrates his own concern for political advancement in the trial, but his speech also demonstrates that he himself was committed to the concerns of the state.

In 53 B.C, Cicero defends his client unsuccessfully in Pro Milone, and it must be conceded that Cicero’s own political ambition overshadows his concern for the state even if other magistrates involved in the trial still have concern for governmental workings. For example, in the published speech of Pro Milone, he does try to argue that Clodius’ murder was for the “public good”; however, even this argument is termed a “partisan” act by Melchior, because the argument of Clodius’ murder being “pro res republica” was likely not included in the actual speech given during the trial.[18] Cicero also argues in this trial in defense of Milo that “Titus Annius Milo himself [was] more disturbed for the safety of the Republic than for his own.”[19]. This appears to have been an appeal to the jury, demonstrating the concern that the jury, and perhaps other magistrates involved in the case, may have had for the state. However, Cicero doe not appear to be concerned with the state, and continues to put his own ambitions over state concerns by defending Milo’s innocence.

Therefore, Roman magistrates throughout the early and middle years of the Republic demonstrated concern for the state in homicide trials, while those who presided over these criminal cases in the later Republic mostly demonstrated concern for the state, although political ambitions sometimes won over. The earliest case demonstrates that the magistrates involved were concerned with the moral state of Rome, which could then affect the civil servants and thus the workings of the state. In the Sila Forest murder, the magistrates also demonstrate concern for the state by their worry for the reputation of the state and also for the safety of potential civil servants. In the middle to late years, Cicero demonstrates his concern for the state as a presiding magistrate in his defense of Roscius because he points out Chrysogonus’ exploitation of the state; he also accuses a potential poisoner, thereby attempting to protect Rome’s morality. However, in Pro Milone, political ambition wins over and concern for the state is overshadowed. Alas, this also is a parallel for the later Republic, which was overtaken by political ambition, and the workings of the Republic became overshadowed by the new Empire.