The streets of Rome at night were unlit and dangerous for travellers. One night, a wayfarer, carrying a leaded whip perhaps for self-protection, picks up a torch from a shop fronting the street. The owner sees him, gives chase and seizes him by the arm. The traveller retaliates with his whip, a fight breaks out and the traveller is blinded in one eye. The traveller then sues the shopkeeper (Alfenus, Digest at D. 9.8.52.1). The opinion of the learned expert was that the outcome of the case would depend on the answer to the question of fact: who had started the brawl?

This imaginary but highly plausible case described by a legal commentator in the first century bc provides an illustration of the workings of the law on damages and injury. The context itself encourages insecurity: the traveller is benighted; the dark streets are the haunts of muggers. But the aggrieved owner of the torch has his rights too and he tries to enforce them through the traditional Roman methods of self-help. The thief is unknown to him and an action for theft for so small an item unviable. In the end it is the partially blinded traveller who seeks redress, through the legal remedy established by the law on criminal damage, the Lex Aquilia, a plebiscite passed in the third century in or sometime after 287 bc (R. Zimmermann 1996: 955–7).

Defining crime is harder than might be expected. We all think we know what is bad or wicked or what might be termed in general usage ‘criminal’. We may also have some ideas about the functions of the ‘criminal justice system’, and its purpose, to punish, deter and/or reform the ‘criminal’ and keep the law-abiding majority safe. Dissatisfaction may be expressed – to the alarm of politicians – if the system apparently fails in its purpose. Crime statistics will be offered to show progress (or not) in dealing with ‘the problem of crime’; other indicators will be used to ascertain if the ‘public’ feel more or less safe in their homes or on the streets. ‘Policing methods’ may be debated and the sentences handed down by judges criticised. Moral discourse is inextricably linked with legal process: ‘evil’ people are expected to receive due punishment through the courts.

Crime is the concern of every citizen, and in the Roman world, as now, it may be defined, provisionally, as an offence against the community. In England the criminal is proceeded against by the state, as ‘Regina (or, in Scotland, ‘Her Majesty's Advocate’) versus X’. At Rome, however, the role of policing was limited (Nippel 1984). Although there were ‘public courts’ of various kinds, there was no police authority to conduct investigations or construct ‘public’ prosecutions, which were largely left to the initiative of individuals.

Treason was the worst of crimes. Perduellio, or ‘acting like an enemy (perduellis)’ menaced the safety of the whole community, and its punishment was correspondingly harsh: the traitor would be publicly flogged and crucified. The Twelve Tables ordained punishment for ‘the man who incites an enemy or who hands over a citizen to an enemy’ (D. 48.4.3). Tacitus' brief sketch of the treason law at the start of Tiberius' reign merged perduellio with ‘damage to’ maiestas (for their use in accusations, see Rogers 1933) and reminded his readers that the law encompassed the betrayal of an army, seditious incitement of the people and any act by which ‘the maiestas of the Roman people was diminished’ (Ann. 1.72). Problems of definition and the strong feelings aroused by alleged abuse of the charge for private gain can obscure the importance and seriousness of the offence.

FROM SATURNINUS TO CAESAR

The merging of the ancient crime of treason and the offence of maiestas was probably due to a law of L. Appuleius Saturninus in 103 or 100 bc (despite attestation of earlier use of the term). The original context of Saturninus' reform was political and highly partisan. Saturninus' reforms in general extended the power of the populus over its executive, the magistrates and Senate, and included active interference in the administration of the provinces and provincial commands (as in the Delphic Piracy Law) and the imposition of oaths on senators that they would obey the laws (Lintott 1994: 95–101).

Crime is a large topic. So too is law. The relationship of crime to law and of both to the society affected by harm done to it raises numerous issues for the lawyer, the historian and the sociologist. Crime is a moral and social, as well as a legal, problem. It therefore attracts the attention not only of legislators, the police, the courts and judges but also of modern film makers and novelists, drawn to an ever-present implied conflict between good and evil. The popularity of modern fiction on detectives in the ancient Roman world, Stephen Saylor's Gordianus the Finder and Lindsey Davis's M. Didius Falco to name but two, testifies to the abiding fascination of the figure of the detective, given extra appeal by his location in the exotic and safely distant antique world.

This book is about how the Romans thought about and discussed offences against the community, who formulated the rules and conventions about crime and how they worked. It is not therefore a manual of criminal law, and discussion is not confined to legal writers, although the ancient jurists, or legal interpreters, are extensively represented. Choice of themes has been, inevitably, selective. One is the impact of legal traditionalism on how crime was discussed and dealt with; a tension existed between legal convention and social values, which affected the ability of the discourse – though not of the judicial system – to adapt to changing perceptions of what crime was.

At the end of the first century bc the collective rule of the Senate and People of Rome gave way to the sole rule of Augustus and his successors, whose autocracy became increasingly overt. The constitutional practices of the Roman Republic had distributed the power to frame, pass and interpret legislation over a number of different authorities: the priesthoods, charged with interpreting sacred and public law; the magistrates, who could enforce obedience and initiate legislation before the People (Lintott 1999a: 94–102); the Senate, whose collective authority gave more weight to their decrees (consulta) than their formal advisory status might imply (1999a: 65–88); and the popular assemblies themselves, whose enactments were binding on the whole res publica from the third century bc onwards (1999a: 40–64). The application of public criminal law in practice was also affected by the pleading of advocates in court, interpreting both written text and legal convention in the interests of their clients.

The advent of imperial rule brought no immediate formal change; Augustus operated within the letter of the Republican constitutional framework. The reality, however, was that the powers of the main magistracies were vested in one man, the emperor, who could also control other magistrates, Senate deliberations and, through them, what remained of popular legislative authority. Power over law therefore passed to the emperor and his advisers. But emperors could not do everything.

Killing people was not always wrong. Enemies were killed lawfully in war; the outlaw could be killed out of hand, as could the adulterer and the thief, provided certain conditions were met. Killing in self-defence was an accepted and universal justification, although the killer might have to run the risk of proving his case in a court of law. As the political gangster T. Annius Milo found in 52, the plea that he killed his political rival Clodius in self-defence, entered on his behalf by Cicero and published as the Pro Milone, failed to prevent his exile. Other Cicero speeches in defence of alleged murderers took a different line. Both Sextus Roscius of Ameria, accused of parricide in 80, and, in 66, Aulus Cluentius Habitus, who was alleged to have killed his stepfather several years earlier, were defended by a combination of outright denial and vilification of the motives of the prosecution team (and, in the Cluentius case, of the victim as well). Cicero's technique was to combine a discussion of the facts with allegations about character and he had little to say on points of law.

Murder was, then as now, both serious and fascinating. Unexpected or unexplained deaths required explanation. Famous, convenient or mysterious deaths generated conspiracy theories. In the absence of forensic or medical evidence, death by poison was more easily alleged than proved – or disproved.

To legislate against violence was to seek to inhibit forms of behaviour endemic to Roman culture. Self-help through direct physical and frequently violent action was both socially and legally recognised (Nippel 1995: 35–9). The Roman state was founded on the fratricide of Remus by Romulus, the successful ‘founder’, who added to his achievement the perpetuation of his city's population through the rape of the Sabine women. Roman military conquest was accompanied by mass murder, brazenly publicised: Caesar boasted of having killed over a million Gauls (Pliny, Natural History 7.92). The suffering of the vanquished was displayed on public monuments, paralleling the agonies of criminals in the amphitheatre, where painful and protracted death became entertainment, reassuring Romans of their own place in the world (M. Zimmerman 2006: 347; Coleman 1990, 1998). Physical violence and, with it, violent self-help were an institutionalised part of Roman society.

Early civil procedures made it the responsibility of the plaintiff to produce the defendant in court, by physical means such as grasping him by the hand (manus iniectio) if necessary (RSii, 584–90). As we have seen, the law recognised the right of the citizen to kill in certain situations, in defence of property or honour. The thief who came by night could be killed by the householder in self-defence; the offender against family honour could be subjected to the summary justice of the paterfamilias and the family council. The jurisdiction of the family also extended into the public sphere.

If law is viewed as an instrument of social control, its content and its efficacy will depend on its relationship to social customs and institutions, not least those which define the social meanings of sex and gender: ‘men and women are both controlled by such mechanisms as the family, marriage, work and concepts of “masculinity” and “femininity” ’ (Morris 1987: 17). The early Roman community (which did not have the separate identity implied by the word ‘state’) was built around the family and household, headed by the paterfamilias, the eldest male ascendant, with his absolute legal jurisdiction, including the power of life and death (ius vitae necisque), over his descendants. Its religious character and continuity was expressed in its sacra, which further identified the family as part of the community as religious construct.

In this system a woman's control of her own body was subordinate to that of her family, of birth and then of marriage. Her function was to provide children; remaining single was, for most, not an option, until the advent of Christianity. Their marriages were arranged by their paterfamilias, as were those of their brothers, but the consent of the parties was also a requirement (Treggiari 1991: 170–80). In manus-marriage a woman became subject to the legal power of her husband, as if he were her father; in non-manus marriage she remained under the power of her father and a member, for religious and legal purposes, of his household (1991: 16–34).

COGNITIO

The powers of governors over Roman citizens abroad was extensive, although the precise extent is unclear. In some cases, such as Galba's crucifixion of a citizen in Spain (Suet. Galba 9.1) or the condemnation of Fl. Archippus of Bithynia to the mines in c. ad 84 (Pliny, Letter 10. 58), the governor's power over citizens in the provinces appears to have been absolute. But Roman citizens abroad, threatened with conviction on capital charges, also seem to have had the right of having their cases transferred to Rome, if the governor saw fit; Paul of Tarsus employed this device, partly perhaps in order to escape the social pressures exerted by his enemies and their supporters (Acts 25.1–12). As the citizenship expanded, this form of appeal (provocatio) appears to have become less viable. Instead, those convicted or dissatisfied with the outcome in a lesser court would resort to appeal against the judge's decision (appellatio; see D. 49.1–13; CT 11.29–38).

Governors heard cases not as presidents of quaestiones but as individual judges, sitting on their public tribunals and backed by an advisory council of distinguished friends and legal advisors. If a governor and the litigants' legal representatives were doing their job efficiently (and had access to Roman archives or equivalent provincial collections), the governor might have had resort to a melange of different legal sources to help his decision.

In the second century bc members of the senatorial elite initiated a process of controlling the behaviour of their peers by passing statutes which established a series of standing ‘courts of investigation’ (quaestiones). Being politicians as well as legislators, they were both the controllers and, potentially, the controlled. Their motives may have been idealistic, but they were also self-serving and practical. One problem, which they may not have perceived and certainly did not acknowledge, was that the behaviour which they hoped to control might be open to more than one interpretation. Patronage, for example, was an essential part of the operation of authority and included the exchange of gifts, not (necessarily) for purposes of enrichment but as the expression of honour and friendship. At what point did gifts become bribery, or the reception of a present extortion? When was a service to a client a form of electoral corruption (Lintott 1990)? This cultural difficulty, which affected the operation of the statutes on electoral corruption and ‘extortion’ or recovery (repetundae), illustrates the problem of legislating on offences against the public good. Too much was left to the skills of advocates, the personal influence of the defendants and the prejudices of the judges.

The standing courts were based at Rome and the quaestio-statutes were Rome-centred. The laws on ambitus, electoral corruption, referred to elections at Rome, although they could be adapted elsewhere.

In 325 bc, alexander sailed out from the indus delta into the Ocean, the vast body of water which, according to ancient thought, encircled the world. Here he sacrificed bulls to Poseidon and, after pouring libations, hurled the golden cup and bowls into the sea as a thank-offering. The scene was hauntingly reminiscent of the ceremony conducted on the Hellespont in 334. In less than ten years, the Macedonian army had conquered the vast territories of the Achaemenid kings, including the fringe areas of the Punjab and the Indus, the most formidable empire of the ancient world. It had followed the path of unbroken victories from the familiar confines of the Aegean to the edge of the earth, overcoming everything in its way: armies, terrain, climate, all invariably hostile. Now the conquerors prepared to return to the west – some by sea, others along the coastal deserts – to consolidate their victory and contemplate the magnitude of their accomplishments. Little did they know that within two years their beloved king would be dead and their labors seemingly wasted. Most of those who returned to Europe were impoverished, their health broken by years of physical hardship. Others, if they did not die on campaign, were destined never to see Macedonia again, embroiled instead in the bitter struggles of Alexander's successors.

The defeat and death of darius ended the conquest phase of Alexander's campaign. The four Achaemenid capitals were in his possession, along with their treasuries; the Greek allies had been dismissed, with bonus pay; satraps, strategoi, phrourarchoi, and gazophylakes had been appointed; and he could claim the eastern satrapies as his by right of conquest. The struggle for legitimacy continued, however, and it was necessary to overcome any rival claims. The period from 330 to 328 was one in which Alexander fought to establish his legitimacy and authority.

THE USURPATION OF THE ROYAL TITLE BY BESSUS

If Alexander had hoped that the death of Darius would bring the war against Persia to an end, he was soon disappointed. Those who had betrayed their king fled into Bactria via Margiana (the Merv Oasis) and attempted to rally the splendid horsemen of Central Asia and their local barons. Bessus, a relative of Darius (though we do not know how close the relationship was), wore the tiara upright, in the style of kings, and took the name Artaxerxes (V). Politically, it was a major setback for Alexander, who was himself posing as the “legitimate” successor of Darius, having assumed the trappings of Persian royalty. For this reason, too, in an act of piety, he had ordered that the dead king be given a state funeral; Bessus, as regicide and usurper, could expect no mercy.

In the short interval between his accession and the start of the Asiatic campaign, Alexander suppressed rebellion in the south and unrest on his northern borders – all with terrifying ease. A rapid move into Thessaly silenced the first grumblings of discontent, and in the following year (335 BC) he arrived at the gates of Thebes, dispelling by his very presence rumors of his death in the north. A single act of terror – the destruction of the city and the enslavement of its population – served to impress upon the Greeks the futility of opposition. The Spartans refused to join the League, just as they had after Chaeronea, but theirs was for now a passive resistance. When they did finally attempt to reassert themselves, they found few allies and no military success.

SETTING THE STAGE

In 334 Alexander's army crossed the Hellespont from Sestos to Abydus on 160 warships and an assortment of cargo craft. That Alexander did not build a boat-bridge was probably a matter of economics – his finances were an ongoing concern at the beginning of the expedition – and the recollection that Xerxes' “chaining” of the Hellespont was regarded as hubristic. Instead he used every symbol in the Panhellenic arsenal. At Dium in Macedonia he staged games in honor of the Muses and the Olympian gods.