Classically Inclined

January 19, 2012

The principle of joint enterprise, Tacitus and Roman slavery

Filed under: Out and about — lizgloyn @ 3:09 pm
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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.

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3 Comments »

  1. This is fascinating. I’ve just found this blog, and as an American I’m only vaguely familiar with the Lawrence case. I’m no classicist – four years of Latin long ago and an interest in Roman history, but dilettantish…
    Still, I was a lawyer,and I, too have trouble with the felony murder statutes we have in most states, which sound much the same as your joint enterprise. (There are separate laws for big conspiracies such as organized crime; I’ll leave those out).
    You’re right that the principle is the same, but I do see a distinguishing feature (that’s what we lawyers do, distinguish this case from the controlling precdent *g*).
    Felony murder requires some sort of participation or presence at the scene of the crime, which would seem a little different from executing all the slaves in a household, even if the crime took place elsewhere and they couldn’t have known.
    Felony murder assumes that if you were the “wheelman” in a gas station robbery where a clerk or bystander is killed, then you actually did commit acts that furthered or allowed the murder to occur. Often enough, it’s plausible that the poor kid who drove the car really didn’t know his buddy had a gun when he got out and said, “I’ll be right back.”
    But that kid is responsible for the murder just the same, and is subject to the death penalty, if that state has it.

    If you watch our crime dramas, you’d think the biggest use of the principle is to get the less-guilty person to snitch on the actual trigger-puller.
    “You want the death penalty off the table, kid? Give me your buddy!”

    Very interesting; glad I stumbled across your site. (I got here by the post’s title – have been trying to find a print copy of Tacitus’s Germania, and there doesn’t seem to be one in my town, stores or library. Sigh.)

    Comment by tejanarusa — January 21, 2012 @ 12:16 am | Reply

    • Thanks for dropping by, and I’m glad you enjoyed the post. Having the American perspective is really interesting extra comparative material, and while I lived in the States for six years, my familiarity with the murder statutes thankfully remained quite distant!

      In terms of Tacitus’ Germania – as I’m sure you know, the Penguin Classics range do a joint edition of the Agricola and the Germania, edited by Mattingly, which is available off Amazon if you’re willing to go in that direction. Good luck with your hunt!

      Comment by lizgloyn — January 24, 2012 @ 9:07 am | Reply

  2. Joint enterprise is a law used when the police cannot prove who the perpetrator of the offence was. So for example you are walking down the street with a friends or relative. Your friends/relative gets into a fight, you’re at the scene watching what is happening obviously thinking that it has nothing to do with you, and it’s not your fight. The fight ends everyone walks away. The next day you are arrested on the suspicion of murder, you find out it wasn’t just a fight you witnessed, the person who your friend/relative fought with was fatally stabbed. You tell the police ‘I was there but it wasn’t me’. You feel confident because you played no part, you didn’t know the person was going to be or had been stabbed.

    You are then charged jointly with murder! You know you are innocent but it will go to trial. The prosecution will allege that you were part of a common purpose or plan, you were there for encouragement, and you are equally guilty. The prosecution will ask if you knew whether your ‘accomplice’ had a knife, you will of course deny this, you thought it was just a fight. The prosecution will then allege that you should have known what was in your ‘accomplice’ pockets because you are best friends or relatives etc etc. The prosecution will allege you shared the same intent as the murderer; he will go on to trash your defence with his wild speculations during his closing speech. His whole speech will be intent on damaging your character because he has no solid evidence against you, he barely mentions your co-accused, he doesn’t have to, and the evidence presented in court has secured his first conviction. He will save his closing speech all for you, attacking your character and making sure the jury learn that you are no scared little chicken sitting in the back of class to afraid to speak with your school teacher.

    But the jury won’t take too much persuading, after all the standard of proof is set frightfully low in joint enterprise law. Your life has been placed in the hands of 12 people who don’t know one end of the law from the other. It takes a person 10 years to qualify as a barrister and yet a jury of 12 people with no law experience are expected to understand such complex laws like joint enterprise in 3-4 weeks. The jury will go on to convict you because of one or two things. 1. ‘There’s no smoke without fire’ the prosecution has done his job by attacking your character with totally unwarranted speculations, or 2. They just don’t understand the complex law of joint enterprise or worse, they can’t be bothered to work it out – after all they have sat through a rather lengthy trial. Conviction number 2, really good day for the prosecution.

    Ok so now you think, ‘I’ll appeal, I know I am innocent’. You will then be told that you can’t appeal on the basis of your innocence. Why? Because jury’s don’t get it wrong. The fight you will have on your hands to overturn your conviction will be way bigger than you can ever imagine. Why? Because the ‘Justice System’ doesn’t like to admit they have made a mistake. You will still fight though there is nothing left for you to do apart from a sentence for a crime you haven’t committed. Things will get a whole lot worse before they get even a smidgen better. The newspapers will print that you are a murderer that you joined in with the fight. They will crush any chance of people believing you, you will feel trapped. Because you keep maintaining your innocence you will stand little chance of parole. Why? Because maintaining your innocence is not showing remorse therefore you are not rehabilitated because you are not sorry for a crime you did not commit.

    Someone said to me not long ago that juries should be told how difficult it is to have a murder conviction over turned. Some Juries will more than likely go on to convict under the illusion that if they got it wrong a higher court will correct their mistakes. This is wrong, courts do not like to overturn convictions and admit their perfect system is wrong.

    Other people are serving life sentences because of simply using their mobile at the wrong time. Another is serving a life sentence for being a Good Samaritan; unfortunately all he did was offer the wrong person a lift. Another person is serving life because he was asked to burn out a car for the insurance money, little did he know that the car had been used in a murder, and there you have it – another miscarriage of justice.

    This is joint enterprise; I know you will probably not believe what you are reading but these things happen, this is real life. If you think Joint Enterprise will never affect you think again! Remember all you have to do is be in the wrong place at the wrong time or even innocently use your own mobile phone. This law is unjust and is crying out for an amendment that will set the standard of proof extremely higher than what it is now. But don’t worry I know you will be thinking this simply couldn’t happen to you….. Could it?

    I am a campaigner for JENGbA – Joint Enterprise Not Guilty by Association you should visit our website with regards to how we are trying to get this archaic doctrine abolished, it’s not even a law. As your article says this is the 21st century it has no place in this modern day society, we pay the police force a lot of money to tackle crime, we expect them to investigate fully and not cut corners, Joint Enterprise will be the biggest ever Miscarraiges of Justice when the common people realise that you can be arrested for having mare presence let alone not having foresight.

    jointenterprise.co There is also a Facebook page and Twitter.

    Comment by Sharon — April 30, 2013 @ 12:30 am | Reply


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