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The Lex Pompeia and the Poena Cullei

Published online by Cambridge University Press:  24 September 2012

Max Radin
Max Radin
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The University of California
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Extract

When the South Sea Bubble burst, a passionate member of the British Parliament called for the application of the Lex Pompeia on Parricides to those who had defrauded the nation. Just as the Romans, he argued, face to face with a monstrous and unprecedented crime, devised for it a monstrous and unprecedented punishment, so the British were invited to tie the directors of the South Sea Company into sacks with a dog, a cock, a viper and an ape in each, and sink them in the Thames.

Type
Research Article
Information
The Journal of Roman Studies , Volume 10 , November 1920 , pp. 119 - 130
Copyright
Copyright © Max Radin 1920. Exclusive Licence to Publish: The Society for the Promotion of Roman Studies

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References

page 119 note 1 I desire to thank Professor J. S. Reid for his kindness in reading through this article in manuscript, and, with his consent, I have taken the opportunity of incorporating in my notes comments made by him. These comments have been inserted in brackets after my own notes and are marked by his initials, J.S.R.

page 119 note 2 Seneca, , De Clementia, i, 23Google Scholar.

page 119 note 3 Val. Max. i, 1, 13. Dionys. Halic. iv, 62, 5. Cicero, Pro Rosc. Am. 25, 70.

page 119 note 4 Strachan-Davidson, Problems of the Roman Criminal Law (p. 21), thinks that the virgae sanguineae were shrubs of a certain kind, and compares Pliny, N.H. 24, 73; 16, 74; 16, 176. Hitzig in the Rev. Pen. Suisse (not seen), p. 41, believes that they were simply painted red. The special efficacy of certain shrubs for purifying purposes is well known. Cf. Tzetzes, , Cbil. v, 725Google Scholar, quoting Lycophron that φαρμακόι were beaten with branches of wild fig before they were burned on the beach. [As to the virgae sanguineae, it seems not unlikely that they were merely painted red. From the purificatory and expiatory nature of blood actually shed, the colour red was used in connexion with burials and other ceremonies connected with it. See a number of references in Gruppe's Griechische Mythologie, § 272, p. 891, n. 3. The tying of the fasces with a piece of red material belongs to the same group of ideas (Lyd. de Mag. i, 32), also the use of minium in the earliest sepulchral inscriptions, in which the inscription was painted red on stone. Probably, for example, the early inscriptions belonging to the tombs of the Scipios were not cut on the stone till long after they had been painted. There is a similar indication about the Duilius inscription. The flogging of the parricida is parallel to the flogging of other criminals before execution by the axes: the object in both cases being expiation by shedding of blood. The same idea (probably) is behind the flogging of the Spartan boys at the altar of the goddess. For sanguinea virga see Columella x, 242, as in Pliny, N.H. 24, 73. There is a sort of homoeopathic principle involved here, like the use of fire to cure fever (the amatory fever included). Colour had something to do with the use of myrtus (expiatory) in the triumphus, and in the Pythagorean practice of burial (Varro ap. Plin. 35, 160). Cf. Plut. Qu. Rom. 20 for the ραβδĵν μυρσίνης with which a wife was chastised. Water, especially salt water, had of course a great vogue in religious purifications (Gruppe, op. cit, p. 815, n. 1). Myrtle rods were used in the purification of fetiales. The myrtle twigs on the ancient ξόανον of Hermes (Paus. i, 27, 1) seem to me wrongly explained by Gruppe p. 26; he has them as ψυχόπομπος, but cf. op. cit. pp. 143, 197. J.S.R.]

page 120 note 1 Auctor ad Herennium, i, 23. Cicero, . De Inv. ii, 148Google Scholar. Cf. also Hitzig, , s.v. culleus, Pauly-Wissowa, R.E. iv, 1747Google Scholar; Mayor on Juvenal viii, 214, and the passages there cited. Cf. also Mart. Cap. 465 and Tibullus ii, 5, 79–80. [The passage in the Auct. ad Herennium is difficult. For one thing the syntax shows that the text is not sound. The paragraph describing the ‘lex’ is generally condemned, in a comparison with Cic. De Inv. 148, 149. From the latter passages lupino is omitted, and in the former the manuscripts are confused. This must throw doubt on the wolf skin, which appears (I think) only in Ad Herennium, i, 23. The only connexion I know between bloodguiltiness and the wolf is in such passages as are referred to by Gruppe—see ind. s.v. Wolf. The wolf skin averts veneficia in Pliny, N.H. 28, 157. There seems to be no example of a wolf skin used ceremonially; the Luperci had their goat skin (Lupercus really = ‘wolf’). But cf. Wissowa's article on Hirpi Sorani in Roscher. J.S.R.]

page 120 note 2 Brunnenmeister, Todtungsverb. in altrom. Recht. 185–198. For a striking example of procuratio prodigii cf. Livy, xxvii, 37, 6: nuntiatum Frusinone natum infantem esse quadrimo parem, nec magnitudine tam mirandum quam quod is … incertus, mas an femina esset, natus erat, id vero haruspices ex Etruria acciti foedum et turpe prodigium dicere; extorrem agro Romano, procul terrae contactu, alto mergendum. Vivum in arcam condidere, provectumque in mare proiecerunt. [The killing of a portentous birth seems to have been obligatory on the paterfamilias; for water in this connexion see Sen. De ira, i, 15. Deportatis in insulam desertam, Pliny, N.H, 7, 36. J.S.R.]

page 120 note 3 Cic. Pro. Rosc. Am. 26, 71 seq.

page 120 note 4 Cicero, l.c.: ne … ipsum polleret quo cetera quae violata sunt, expiari putantur. However, it is certainly not a general belief that any pollution whatever would affect the sea. Cf. Euripides, Iph. Taur. 1193. In Aeschylus, Persae, 578, the sea is ἡ ἀμίαντος ‘the unpollutable one.’

page 120 note 5 Brunnenmeister's suggestion (Todtungsverb. 101–102) that parricidium equalled ‘kinsmankilling’ (πηός) is perhaps the most reasonable. Although in some of the medieval codes the influence of Christianity caused parricide to be reckoned as an offence that could not be compensated for, most of the old German codes continued to allow wergild for it. Wilda, Uber das Strafrecht der Germanen, 714 seq.

page 120 note 6 It is unnecessary to cite all the various discussions of the meaning of the word. They begin with the statement of Festus that parricidium originally was the murder of a free citizen (M. p. 221). Cf. Strachan-Davidson, Problems, 21 seq. Landgraf, Ciceros Rede f. S. Roscius, note to 25, 70. A favourite etymology of ancient times referred it to par, ‘equal.’ Priscian i, 26, 6. Cf. also Cuq, Inst. Jur. (2d ed.) 47, n. 3 and the passages cited, of which it may be well to mention Breal-Bailly's that parricidium equalled patricidium in the sense of ‘murder of a patrician.’

page 121 note 1 The date of the Lex Pompeia is uncertain. Its reference to the year 81 B.C. is generally made in a very positive manner, but is really based on nothing more than a desire to make it follow the Sullan Statute of Murderers and to precede the Rosciana. [As to the Lex Pompeia, the only passage implying that it introduced any change in the poena is Just. Inst, iv. 18. That passage is curious. It has reminiscences of Cicero, Pro Roscio Amerino; indeed, it looks as if the writer from whom it comes got his knowledge of the poena from Cicero, though he takes the title Lex Pompeia from elsewhere. I do not feel sure that Pompeius in his lex defined the poena in any other way than by referring to Sulla's law. Dig. 49, 9 surely implies this, while making it certain that Pompeius carefully defined the persons who were to be liable to the punishment. Paul. Sent. 5, 24, 1 (defective) confirms this idea. The natural inference from Cicero, Pro Rosc. Am. is that no recent statute had defined the punishment, but that it was traditional and immemorial, like the interdictio aqua et igni. In all the references to this punishment, I do not remember to have seen it quoted from any statute; it was assumed to be notorious and immemorial. I should doubt whether even the lex Cornelia entered into particulars about the poena. If any statute were quoted, one would expect it to be of Numa. The soleae in Auct. ad Herenn. can have no ritual significance. They only indicate that the culprit is starting for his last journey. J.S.R.]

page 121 note 2 There is, of course, the proverbial sack which romance has assigned to delinquent wives of the Grand Turk. Post, in his Ethnologische Jurisprudenz ii, 269, n. 5, speaks of the sack as though it were a common institution, but in the reference the punishment instanced is generally simple drowning. That seems also to be true of the citations in his Afrikanische Jurisprudenz. In Grimm's Deut. Rechtsalt. there are several instances of drowning, in some of which the criminal was enclosed in a sack or chest.

page 122 note 1 ii, 269, n. 5.

page 122 note 2 ii, 278 seq. Cf. also the decree of Frederick William I of Prussia in 1739. Radbruch: Einführung in die Rechtswissenschaft, 3rd ed. p. 117.

page 122 note 3 In the former case, all the animals were used. In the latter an ape apparently could not be procured.

page 122 note 4 In both cases it is certain that the magistrates knew the Institutes. But Isidore, whose Etymologies quote the poena cullei (v. 27, 36, omitting the dog), was well known throughout the Middle Ages, as were the Glossaries that were often derived from him.

page 122 note 5 Schol. Terent, p. 111, 1, 15; Juvenal, x, 317. By a constitution of Constantine (Cod. Theod. xi, 36, 14) (A.D. 339) adulterers are either to be sewed alive in sacks or burned.

page 122 note 6 With the adulterer was put a mugilis—which was a wedge-headed fish—or a scorpion. These were also used as instruments of torture without the sack. Whipping, too, might be inflicted, just as the parricide was whipped. Cf. Athenaeus, 307 b; Papinian, Dig. 48, 5, 23. Valckenaer on Euripides, Hipp. 415. It is evident that there is a similarity between the punishment of these two offences—offences that might be analysed as the violation of two important taboos, that governing sex and that governing kindred blood.

page 122 note 7 Strafrecht, p. 567, n. 4.

page 122 note 8 Val. Max. i, 1, 13; Dionys. Hal. iv, 32; Zonaras 7, 11.

page 122 note 9 Plutarch, Tib. Gracch. xx. Quintus Cicero drowned two Mysians in sacks, at Smyrna, in a fit of arrogant ill-temper, which his brother chides. (Ep. ad. Q.F. I, 2, 2, 5). According to Eusebius, the martyrs Ulpian and Edesius were put to death in this way (De Mart. Pcl st. 5) [The passage in Cicero ad Quint. shows that the punishment was unusual (cf. exemplum severitatis). The cock is brought into relation with death in the story of Socrates: ‘we owe a cock to Aesculapius.’ J.S.R.]

page 123 note 1 Inst. (ed. Ferrini) iv, 18, 6.

page 123 note 2 Hadr. Sent. 16. Published with his Interpretamenta (ed. Bocking, 1832).

page 123 note 3 Corpus Gloss. Lat. iv, 502, 3; v, 593, 57; vi, 47, 20.

page 123 note 4 Idem. iv, 224, 53.

page 123 note 5 Idem. v, 617, 47 (11th cent. MS.).

page 123 note 6 Hardly any modern writer takes the suggestions of any of these writers seriously. Rein, however, seems to do so, Kriminalr, p. 457. He goes so far as to say that the dog was an animal despised by the Greeks and Romans. But that is in direct contradiction with the facts. Landgraf (Ciceros Rede f. S. Rosc. sec. 70) thinks that the dog and the cock represented good as the others represented evil. There seems scarcely any sufficient ground for balancing good and evil on such an occasion. [It has been sometimes suggested that the dog and the cock were included as being watchers in the house, to give notice of approaching mischief; and had failed to secure the safety of the victim. The connexion of the snake with the underworld (as with Hecate) may belong here. J.S.R.]

page 123 note 7 A general discussion and bibliography of the importance of animals in cults and superstitions is found in the article of Mr. Northcote W. Thomas in the Hastings Encyclopedia of Religion and Ethics, s.v. Animals. A more special discussion of animals in Greek and Roman beliefs is presented in Riess' article on Aberglaube P.W. Real-En., pp. 77 seq.

page 123 note 8 Snakes, it is well known, commonly represented spirits of the lower world, including the beneficent ones. But a distinction is made between venomous and non-venomous serpents (Rohde in Rh. Mus. 28, 278). The latter had all the uncanniness of their species and individual noxiousness as well. Vipers arose from the backbones of evil men. Pliny, N.H. x, 188; Aelian de Nat. An. i, 51; Riess, P.W. Real-En., s.v. Aberglaube, p. 77. However, even vipers were not of unmixed evil significance. Their flesh was conducive to longevity. Pliny, , N.H. vii, 27Google Scholar; Dioscorides, , M.M. ii, 18Google Scholar.

page 124 note 1 Detailed citations are hardly necessary. Cf. Hehn, Kulturpflanzen und Hausthiere. Also Orth. Huhn, , P.W. Real-En. viii, p. 2531Google Scholar, and the correspondlng articles in the Daremberg-Saglio, Dict. des Ant. See also Keller, Die Antike Thierwell, pp. 91–151. The cock was most frequently depicted in the lararii. De Marchi, Culto privato di Roma Antica, i, 103, n. 2.

page 124 note 2 Reinach, M. S. in his Cultes, Mythes et Religions, ii, p. 202Google Scholar, refers to the statue of Anteros in the Academy at Athens, which represents a youth with two cocks in his arms about to leap from a cliff. He ascribes to this group a symbolism connected with the lower world. The erotic explanation given by Pausanias i, 30, and Suidas, s.v. Meletus, while as dubious as such explanations always are, is, in this case, perhaps preferable. The fact that the cock was sacrificed to Nox (Ovid, ., Fasti i, 405Google Scholar, may be accounted for without assuming a special chthonic significance.

page 124 note 3 See the references in note 4. Cf. especially Pliny, , N.H., viii, 61Google Scholar, 40: ex his quoque animalibus quae nobiscum degunt … fidelissimum ante omnia homini canis. To the same effect, the Stoic interlocutor in Cicero's De Nat. Deorum. 63, 158. Against all this no weight can be attached to the swarm of Hecate, who is, after all, by popular belief and undoubted etymology, the sister of the Far-Darter; or to the story of the crucifixion of dogs for failing to quard the Capitol. Nor is it of moment that dogs or goats might not be touched by the Luperci. Fowler, Roman Festivals, p. 313.

page 124 note 4 The omission of the dog may be due to the fact that Isidore omits him, and that these glossaries largely depend on Isidore.

page 124 note 5 Livy, Epitome 68.

page 125 note 1 Seneca Pater, Contr. 5, 4; 7, 1, 23. Ps.-Quint. Decl. 17, 19.

page 125 note 2 De Clementia, i, 23, 1.

page 125 note 3 Sat. viii, 214, with Mayor's note, and Sat. 13, 154.

page 125 note 4 Dig. 48, 9, 9, pr.

page 125 note 5 Paul, , Sent, v, 24, 1Google Scholar.

page 125 note 6 There is a difficult question of text at this point which must be briefly considered. The Codex Theodosianus (9, 15, 1) and the Codex Justin. (9, 17, 1) both cite this constitution of Constantine. In all the extant MSS. of the Cod. Theod. the mention of the animals is omitted. They are also omitted in the MSS. of the Cod. Just. which Mommsen designates as L and C, but they reappear in the one called R (a MS. of the twelfth century). Mommsen believes that R interpolated them from the Institutes. However, it is a fact that the textual transmission of the Theodosian Code is wretchedly bad in quality and quantity of MSS. Without attempting to evaluate the evidence of L, C and R, it is clear that the Institutes directly quote this constitution. If the constitution did not contain the words, cum cane et gallo gallinaceo et vipera et simia, the word ferales that follows in all the MSS. of the Codes seems quite devoid of meaning. It is at least as likely that the words dropped out of L and C as that they were inserted by R.

page 125 note 7 Basilica, 60, 40.

page 126 note 1 Tertullian (about A.D. 200) says that Jupiter should have been torn asunder and put in two sacks (De An. 33, Ad. Nat. ii, 13). In doing that he doubtless had in mind the use of the culleus as a punishment both for parricide and for adultery.

page 127 note 1 Monkeys were always exotic pets. Cf. Oder, s.v. Affe, P.W., Real-En. i, p. 706Google Scholar. The story of the ape of the king of the Molossians refers to the evil omen of the overturning utensils used for sacrifice, not to the ill-omened character of the ape itself. Cic, . De Div. i, 34, 76Google Scholar.

page 127 note 2 Artemidorus, , Oneirocr. ii, 12Google Scholar. Cf. also Lewysohn, Zool. des Talmuds, 68, and Gubernatis, De, Zoological Mythology, ii, p. 107Google Scholar. Riess, in P.W. Real-En., s.v. Aberglaube.

page 127 note 3 Not only the inevitable Ennian verse may be cited, but such passages as Pliny, , N.H. xi, 100Google Scholar, 44, and Sch. Juv. 4, 89, where it is stated that the ape was the last animal created before man.

page 128 note 1 Martyr, Justin, Apol. i, 66, 19Google Scholar.

page 128 note 2 Cumont, , Textes et Mon. rel. au Mithr. i, p. 189Google Scholar, n. 7; p. 191 seq.

page 128 note 3 Cumont, loc. cit.; H. Leitzmann in Wendland, Hellenistich-röm. Kultur, p. 431.

page 128 note 4 Cumont, op. cit. p. 212.

page 128 note 5 Cumont, Rel. orient, dans le pag. rom. p. 69 seq.; Zoega, Bassirilievi, tav. 13, 14; Lietzmann, op. cit. p. 425.

page 128 note 6 Diod. Siculus i, 87, 3. Dogs preceded the Isaiac processions. τῶν καταδειξὰντων τοῦτο τὸ νόμιμον σημαινόντων τὴν παλαιὰν τοῦ ζώου χάριν Cf. Drexler, in Roscher, , Lexik. d. Myth. ii, 272Google Scholar. [There are examples of the purificatory sacrifice of the dog: it figures remarkably in a lustratio of the Macedonian army, mentioned by Livy, xl, 6: ‘caput mediae canis praecisae et pars ad dextram, cum extis posterior ad lacerem viae ponitur: inter hanc divisam hostium copiae armatae traducuntur.’ The ceremony is mentioned also by Q. Curtius x, 9, 12. The emperor Julian in Orat. v (176 D): καὶ θύομέν γϵ, ἔϕην, ὦ μακάριϵ, ἔν που τϵλϵστικαῖς θυσίαις, ὡς ἵππον Ῥωμαῖοι, ὡς πολλοὶ καὶ ἄλλα θηρία καὶ ζῶα, κύνας ἴσως Ἕλληνϵς Ἑκάτῃ καὶ Ῥωμαῖοι δέ. (This is a curious reference to the October horse and probably to the sacrifice of the dog by the Luperci.) The ἴσως is odd. Plut. Qu. Rom. iii says the dog was offered to none of the Olympians, owing to its impurity, but to Hecate in the trivia; among the Lacedaemonians ‘τψ Φονιμωτάτψ τῶν θεῶν Ἐναυαλέψ ἑντέμνουσιν,’ while in Boeotia it is a καθαρμὸς κυνός διχοτομηθέντος τῶν μερῶν διεξελθεῖν (as in the Macedonian military lustratio). Then comes a reference to the Lupercalia and to the fact that the flamen of Jupiter must hold aloof from the dogs. The canarium at the Robigalia involved the sacrifice of a red dog. On the other hand the dog is viewed as in a manner sacred in connexion with the Lares Praestites. Plut. Qu. Rom. 51: ὲπίσκοπος βίων καὶ οἴκων διὸ καὶ κυνῶν δέρμασιν ἀμπέχονται, καὶ κύων πάρεδρός ἐστιν, because they are sharp at tracking out and running down τὸυς πονηρούς. Plut. Qu. Rom. 68 says that almost all Greeks used to sacrifice dogs, and do so still by way of καθαρμοί and goes on to speak of the Lupercalia and Hecate. Pausan. iii, 14, 9, mentions sacrifice of dogs at Therapne, and says that the only other Greeks who practise it are the ΚολοΦώνιοι. Other references are given in Gruppe, op. cit, p. 804, n. b. J.S.R.]

page 129 note 1 Cf. Strong, , Apotheosis and After Life, ii, n. 27, p. 257Google Scholar.

page 129 note 2 Lobeck, Aglaophamus, 582; Pliny, , N.H. xxx, 128Google Scholar.

page 129 note 3 N. W. Adams, s.v. Animals, Hastings' En. R. E., p. 498.

page 130 note 1 Ibid. p. 527; Folk Lore, xi, 250.

page 130 note 2 Riess, s.v. Aberglaube, P.W., Real-En. i 73Google Scholar; Pliny, , N.H. xxx, 42, 43, 64Google Scholar.

page 130 note 3 Fowler, Roman Festivals, p. 174; Frazer, Golden Bough, 2, 210.