PUNISHMENT
566
PUNISHMENT
Israel and Juda preserved capital puruBhrnent as a
feature of their criminal code.
No more cruel form of punishment for offences deemed capital existed in ancient times than that which prevailed among the Jews, i. e. stoning to death. This form of capital punishment is repeatedly men- tioned in the Old and New Testaments. It would ap- pear from the Book of Esther that hanging was the punishment which prevailed among the Assyrians. Two of the king's slaves who plotted against his life were thus punished (Esther, ii), and by that method the king's prime minister, Aman, was executed, the gibbet used for that purpose being said in Esther, vii, to be the same one wluch Aman had prepared, "fifty cubits high" (ibid., v), with the design of hanging thereon Mardochai, the Jew, who had incurred his displeasure, but who was "precious in the sight of the Lord".
The ancient Greeks punished homicide (phonos), committed by design, and many other offences with death. The court, which prescribed this penalty was the Court of the Areopagus. The court was not in- vested with discretionary power in awarding punish- ment, since Demosthenes says that the law deter- mined this according to the nature of the crime. Wilful murder was punished with death, and other degrees of homicide and malicious wounding were punished with banishment and confiscation of goods. Those who were convicted upon a charge of uninten- tional homicide, not perfectly excusable, were con- demned to leave the country for a year. Treason (prodosia) was punished with death. The goods of traitors who suffered death were confiscated, and their houses razed to the ground. It was not permitted to bury their bodies in the country, but they were cast out into some desolate place. Hence, the bones of The- mistocles, who had been condemned for treason, were brought over and buried secretly by his friends, as related by Thucydides. The posterity of a traitor re- ceived the treatment of outlaws. The Areopagus was the tribunal for the trial of cases wherein the charge against an individual was wilful murder and wound- ing, or a charge of arson or poisoning. The Attic legend tells us that the first notable trial before the Areopagus was that of Orestes upon a charge of hav- ing murdered his mother. JCschylus represents this trial as the origin of the court itself. Some authorities claim that the Ephetai acted as a court for the trial of murder in conjunction with that of Areopagus. The Ephetai certainly had jurisdiction over cases in- volving the lesser degrees of homicide.
The punishment of death at Athens was generally by poison in the case of freemen. After sentence, the condemned murderer was directed to take a cup of hemlock or other poison and drink it. In the case of the imposition of any penalty upon a criminal in the courts of Athens, the prosecutor proposed the penalty in the first instance and then the person condemned had the privilege of suggesting a different punish- ment. Thus it was that Socrates, when his death was proposed, after trial and conviction, suggested that instead of being punished by death he ought to be entertained at public expense for the rest of his life in the Prytaneum, the palatial quarters used by the Athenians for extending and providing municipal hospitality. Criminals of low social grade, such as slaves, were beaten to death with cudgels.
The Roman law was not .ably severe in regard to public offences. A law of the" Twelve Tables con- tained some provision as to homicide (Plin., "H. N", xviii, 3), but this is all that we know. It is generally a.ssumed that the law of Numa Pompilius, quoted by Festus (s. v. Parrici Qua-stores), " Si quis hominem liijerum dolo sciens morti duit paricida esto" |If any one with guile, and knowingly, inflicts death upon a freeman, let him be (considered as) a p.ar- ricide], was incorporated into the Twelve Tables,
and is the law of homicide to which Pliny refers;
but this cannot be proved. It is generally supposed
that the laws of the Twelve Tables contained pro-
visions against incantations {malum carmen) and poi-
soning, both of which offences were also included under
parricidum (parricide). The murderer of a parent
was sewed up in a sack (culeus or cidleus) and thrown
into a river. It was under the provisions of some old
law that the Senate by a consultum (decree) ordered
the consuls P. Scipio and D. Brutus (138 b. c.) to
inquire into the miu'der in the Silva Scantia. The
Lex Cornelia de sicariis et veneficis (concerning as-
sassins and sorcerers) was pa,ssed in the time of Sulla
(82 B. c.) and derives its distinctive name from his
middle name, Cornelius. This law contained pro-
visions as to death or fire caused by dolus 7nalus (evil
fraud) and agairLst persoas going about armed with
the intention of killing or thieving. The law not
only provided for cases of poisoning, but contained
provisions against those who made, sold, bought,
possessed, or gave poison for the purpose of poison-
ing; also against a magistrate or senator who con-
spired in order that a person might be condemned in
a judicium publicum (public judgment), etc. To the
provisions of this law was subsequently added a
setiatus consultum (decree of the senate) against
mala sacrificia (evil sacrifices) otherwise called impia
sacrificia (impious sacrifices), the agents in which
were brought within the provision of this lex. The
punishment inflicted by the law was the inlerdiclio
aquw el ignis (prohibition of the use of water and fire),
according to some modern WTiters. Marcianus
(Dig. 49, tit. 8, s. 8) says that the punishment was
deportatio in insulam et bonorum ademiio, that is,
banishment to an island and deprivation of personal
property. These statements are reconcilable when
we consider that deportation under the emperors took
the place of inlerdiclio, and the expression in the
"Digest" was suited to the times of the writers or
the compilers. Besides, it appears that the lex was
modified by various senatorial decrees and imperial
rescripts.
The Lex Pompeia de parricidiis, passed in the time of Cn. Pompeius, extended the crime of parricide to the kilUng {dolo malo, i. e., by evil fraud) of a brother, sister, uncle, aunt, and many other relations enumer- ated by Marcianus (Dig. 49, tit. 9, s. 1) ; this enumera- tion also comprises step-father {vitricus), step-mother {noverca), step-son {privignu^) , step-daughter (pri- vigna), a m.ale or female patron {patronus, patrona), an avus (grandfather) who killed a nepos (grandson), and a mother who killed a fdius (son) or filia (daugh- ter) ; but it did not extend to a father. All p^i^^es to the crime were also punished by the law, and at- tempts at the crime also came within its provisions. The punishment was the same as that affixed by the lex Cornelia de sicariis (Dig., 1 c), by which must be meant the same punishment that the lex Cornelia affixed to crimes of the same kind. He who killed a father or mother, grandfather or grandmother, was punished, more majorum (according to the cus- tom of the fathers) by being whipped till he bled, sewn up in a sack with a dog, cock, viper, and ape, and thrown into the sea, if the sea was at hand, and if not, by a constitution of Hadrian, he was exposed to wild bcivsts, or, in the time of Paulus, to be burnt. The ape would appear to be a late addition. Only the 'murderer of a father, mother, grandfather, grandmother was punished in this manner (Modest. Dig. 49, tit. 9, s. 9); other parricides were simply put to death. From this it is clear that the lex Cornelia contained a provision against parricide, if we are rightly informed as to the provisions thereof, unless there was a separ.ate lex Cornelia relating to the specific crime of parricide. As already observed, the provisions of these two laws were modified in various ways under the emperors.
