Yesterday morning, as I was brushing my teeth, I vaguely heard Today on Radio Four discussing the new proposals that the principle of joint enterprise in murder cases needs reexamining. This, for those unfamiliar with the statue, is the law that says it is possible to prosecute a group of people for a criminal action; it was the legal principle which allowed the conviction in the Steven Lawrence case earlier this month. The general idea is that even though only one person may have struck the killing blow, those in the group around him can still be held legally responsible for creating the environment in which the criminal act was possible.
Now, because I’m a classicist and a a bit strange, my mind immediately made a connection with Roman slave law. Bear with me here, this will shortly make sense. You see, there is in Tacitus’ Annals an account of what happened in precisely this sort of group situation:
Soon afterwards one of his own slaves murdered the city-prefect, Pedanius Secundus, either because he had been refused his freedom, for which he had made a bargain, or in the jealousy of a love in which he could not brook his master’s rivalry. Ancient custom required that the whole slave-establishment which had dwelt under the same roof should be dragged to execution, when a sudden gathering of the populace, which was for saving so many innocent lives, brought matters to actual insurrection. Even in the Senate there was a strong feeling on the part of those who shrank from extreme rigour, though the majority were opposed to any innovation.
The principle here is much the same. If one slave murders their master, then it was customary for all the slaves of the household to die. However, much like the recent review, the Roman people felt this was unreasonably harsh. Not all the slaves had been responsible, they had not all been allies of the murderer,and thus they did not think the slaves deserved their fate. They even had some of the senate on their side, although I find it interesting to note that some crusty hardliners thought this sort of thing was the thin end of the wedge.
Tacitus goes on to report the speech made by Caius Cassius in support of enforcing the traditional penalty, which in sum says that if the senate shows leniency, the Romans won’t be able to control their slaves by fear of punishment any longer. His party win the vote:
Still, the party which voted for their execution prevailed. But the sentence could not be obeyed in the face of a dense and threatening mob, with stones and firebrands. Then the emperor reprimanded the people by edict, and lined with a force of soldiers the entire route by which the condemned had to be dragged to execution. Cingonius Varro had proposed that even all the freedmen under the same roof should be transported from Italy. This the emperor forbade, as he did not wish an ancient custom, which mercy had not relaxed, to be strained with cruel rigour.
The emperor wants to be rigorous – but not too harsh. He won’t bring freedmen into the arena too, just the slaves of the household, as custom dictates. You can read Tacitus’ full account of the event here, in chapters 42-45 of Annals 14.
For a classicist, the interesting thing is how this fits into a picture of Roman slavery and social attitudes to it. The fear of death by slave was a live issue, one which created fear and which needed negotiation. The story is reminiscent of another discussion that came before the Senate, about whether slaves should be made to wear a certain type of uniform – which was dismissed as soon as people realised that the slaves would then be able to tell how many of them there were, and thus consider revolt. It’s a kind of social control, of maintaining the status quo, and the enforcement of the law ends up being not only a message to the slave population, but to Rome’s general population (the ones without the money to sit in the senate) as well – this is the way we do things, and we will be sticking with it. The rule of clemency and mercy has no place here, and it is better to be strict than soft. But, as the emperor says, not too strict. After all, there are some limits. I’ll be interested to see how a review of the joint enterprise guidelines negotiates between these two extremes. We may be applying the rules in a very different context, but the underlying question of principle remains the same.