Murder Was Not a Crime by Judy E. Gaughan
Book Review by Philip Matyszak
This book explores an intriguing thesis. Basically author Judy Gaughan argues that the basic object of criminal legislation in the Roman Republic was to protect the state. Because one of the most important elements of the state was the family bloc based on the paterfamilias, some deeds – such as murder – were not subject to criminal sanctions, because resolving the issue was in the power of the paterfamilias and not of the state. Indeed, for the state to get involved in trying cases of murder would undermine the power of the family, and thus weaken the state itself.
As the author points out, there is no word in Latin for 'murder'. The nearest we get as a noun is 'homicidum', which just means 'killing a man', whether lawfully or unlawfully, deliberately or accidentally. As a verb 'necare' means to kill in a perfidious manner – however Latin has nothing as explicit as 'murder' as a word for premeditated unlawful killing in any form of grammar.
From this base, the author goes on to explore with impressive scholarship cases of unlawful killing in the regnal period, the early and mid-republic and the post-Sullan era. The cases in question deal with unlawful killings by and of the Roman aristocracy, because as the author points out, even these cases are pretty obscure. Cases where one Roman peasant killed another for whatever reason simply do not concern our sources. Indeed, if we are to simply go by the evidence of Livy and Polybius, no non-aristocratic Roman ever killed another except on the field of battle.
The author goes on to examine what happened in those cases of aristocratic homicide we know of, and how the state dealt with them. Quite often the culprits were turned over to their families to be dealt with – especially if they were female, such as the poisoners of 331 BC. The reluctance of the state to get involved in the killing of Roman citizens is made abundantly clear. Even in cases where the accused was evidently guilty, he was usually permitted to go into exile right up to the moment when the verdict was delivered. It was only when murder as an act threatened the position of the ruler – as it did under the kings and the empire - that it became punishable by the state.
At least, this is the basic thesis of the book. And 'thesis' is an appropriate word here, as this book is obviously an expanded academic thesis. It is also fair to say that the transition from thesis to book has not been entirely successful, for the book has several flaws.
The first and most obvious of these is that the book is to some extent 'Hamlet' without the prince. If, as the book maintains, murder was not a crime, then what was it? We can neither assume that the deliberate killing of one Roman by another was either rare, or passed over as some sort of social peccadillo. Jealousy, greed and all the other motivations that have compelled humans to murder one another through the ages were certainly not absent from the Roman character. And while families might act in the case of the evident guilt of one of their members, what if they chose not to do so, or if they disputed the facts? The family of the victim would certainly take umbrage. The author briefly suggests that the matter might then be resolved through 'vendetta'. However, vendettas are very bad for public order and the security of the state. This is why no organized society permits them as a recognized alternative to the courts. And we have no accounts of vendettas resulting from murder in the Roman Republic.
At another point, the author comments that 'Though the XII tables incorporated no murder law, the customary consequence for someone who committed intentional and malicious homicide was death.' But since murder was not a crime, and there were no courts to decide if murder had been committed, who decided on that penalty and how it was executed is no clearer at the end of the book than at the beginning. The reason for this lies with the title. While the book is called 'Murder was not a Crime: Homicide and Power in the Roman Republic', it only deals with the second part of this header. The first part is an interesting fact thrown up by exploration of the interaction of homicide and power and it is not explored to any depth. Much more could be made of the Lex Talionis for example, if the author did want to go further into the matter. And the fact that Latin had no word for 'murder' becomes less significant when we remember that murder was nevertheless a crime in the regnal and imperial periods, so there were plenty of opportunities to put a name to the concept. (There are various reasons why the word may not have evolved, but the place to go into these should have been in the book rather than in a review.)
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Overall, if you want to know about the legal status of homicide – especially politically-motivated homicide - among elite Romans of the Republic, then this is an intriguing and well-researched book. However, those looking for information about how the Roman Republic dealt with murder in general will have to look elsewhere. This lies outside the scope of the book.