In my blogging, I have frequently discussed Roman approaches to crime and punishment (e.g., crucifixion and torture). However, as I sat prepping lectures for my Roman law course this week, I got distracted (it happens) and began to watch some clips from old James Bond movies (it happens a lot). After making a mental list of all the sharks and snakes that Roger Moore / 007 had to escape from in Live and Let Die alone, I began to consider the role of animals in Roman law. Specifically, how and why animals were used as instruments in carrying out capital punishments, and in which cases they themselves could be held legally liable for their actions.
The use of animals as executioners existed in Rome since at least the middle Republic. Elephants appear to be the first spectacle animals to perform human executions, as when in 167 BCE, Aemilius Paullus used elephants in order to kill non-Roman soldiers who had decided to desert during his campaign against Perseus. Assumedly they trampled the men to death. The viewing of such a horrid death scene apparently discouraged soldiers from turning coat. In 146 BCE, Scipio Africanus Minor also used elephants to crush foreign deserters (Val. Max. 2.7.13-14), this time during the spectacular games of his triumph. When you think about it, the use of horses or elephants as instruments of war is similar, even though there may not be an amphitheater with stadium seating set up for an audience to enjoy the carnage.
In such cases, the elephants carried out the will of the Roman state and performed a job normally outsourced to Roman executioners–called carnifices–who were themselves legally degraded. The lowly status was likely due to the pollution these men incurred from the act of killing others. In a sense, the use of elephants against deserters rather than a human hangman also underscored the non-citizen nature of those being punished. It not only made a proxy of the foreign pachyderms, but cast them as a symbol for Rome’s expanding overseas empire. Not a very subtle visualization of Roman power, but then again, no one ever accused Romans of subtlety.
The Roman use of animals to punish those found guilty of parricide is another tale of legend. Modestinus, a jurist and pupil of Ulpian writing in the 3rd c. CE, mentioned the customary penalty in his Pandectae (transmitted in the Digesta of Justinian [48.9.9.pr. tr.Scott]):
“The penalty of parricide, as prescribed by our ancestors, is that the punishment shall be beaten with rods stained with his blood, and then shall be sewed up in a sack with a dog, a rooster, a viper, and a monkey, and the bag cast into the depth of the sea, that is to say, if the sea is near at hand; otherwise, it shall be thrown to wild beasts, according to the Constitution of the Divine Hadrian.”Parricide (parricidium) came to include killing both parents and grandparents, though it may have originally just applied to slaying one’s father. The Augustan historian Livy notes that Publicius Malleolus was the first to receive such a punishment for killing his mother; he was sewn up in a culleum (leather sack) and tossed into the sea in 101 BCE (Per. 68 cf. Rhet. ad Her. 1.13.). Cicero adds that Malleolus was also made to wear wooden clogs, so that he could not escape. Anyone who has ever tried to run in wooden clogs would emphatically agree with this line of reasoning, but legal historian O.F. Robinson has suggested that this was rather an attempt to keep the polluting offender’s feet from transmitting his miasma to the earth (2007: 45). Most of my questions actually involve the logistics of the act: whether the animals were sedated first, the dimensions of this giant leather bag, and where they got all those monkeys from. Also, I would hate to be the man tasked with sewing that dangerous sack up.
Ancient sources indicate that parricide laws evolved into the late Republic. Pompey’s lex Pompeia de parricidiis of 55 or 52 BCE confirmed an earlier law on parricide issued under Sulla. Although the punishment appears to have fallen out of use during the imperial period, it was later brought back in Late Antiquity. In an edict of 318 (instituted in 319), Constantine reinstated the animal sack as a punishment for parricide (CTh. 9.15.1). I always like to bring this fact up whenever modern academics praise the kindness and goodness of the emperor Constantine. Let’s not forget this is a man who had his own son killed, folks.
Alright, clearly Romans used animals as instruments for exacting capital punishment, but what about the legal perception of animals in Roman law? Animals had very few rights in the Roman legal system, though as property, some could be claimed under the jurisdiction of the lex Aquilia.
Under the civil law code, owners were generally held responsible for the actions of their pets or livestock–as when an owner encouraged their dog to defecate on an enemy’s property or a mule trampled someone in the street. Ulpian notes that when four footed, domesticated animals (i.e., not feral animals) acted against their nature, they commited pauperies (Dig. 126.96.36.199). In this case, the owner would either pay damages or hand over the animal itself. Romans did not consider animals capable of rational thought in the human sense, and thus they were not legally liable for their actions.
Roman thought about the agency of animals is much more closely aligned with our thinking today. A notable deviation came in the animal trials that occurred in Western Europe between the 13th and 18th centuries. The conviction of pigs and other livestock at this time provide some insight into how perceptions of moral agency can transform a legal system. I mean, what if we did believe those elephants knew what they were doing to those soldiers? The pivotal work on animal trials was written by Edward Payson Evans in 1906, though many scholars have offered up variant reasons for the trials. Evans himself believed that ideas of witchcraft played a role.
Despite the rare medieval and early modern animal that was held liable for their alleged actions, animals have generally been viewed as instruments and extensions of their owners. Consequently, not only how we treat our pets, but also how we use them reflects back on us. This goes as much for 007 villains as it does for ancient Rome.