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The Crime of Desertion in Roman Law

The following is a guest post by Dante Figueroa, a senior legal information analyst at the Law Library of Congress. Dante has contributed a number of In Custodia Legis blog posts, including on The Rehabilitation of Dante Alighieri, Seven Centuries Later, Resources and Treasures of the Italian Parliamentary Libraries,  Legislation Protecting Italian Cultural Heritage, and Proposed Anti-Sect Legislation in Italy: An Ongoing Debate.

Introduction

While watching –once again—the classic and broadly acclaimed movie Ben-Hur, I thought about the legal consequences of deserting from the Roman Army for Roman conscripts and soldiers. Desertion was a serious crime under Roman military law, as it meant the violation of a sacred military oath of allegiance that was given to military commanders and to fellow comrades in arms (C. E. Brand, Roman Military Law, at 97). More than two millennia later desertion remains a grave military crime in most jurisdictions. In this context, I think that a review of the main aspects of the crime of desertion according to Roman law might be useful to understand more about the topic today.

The Portonaccio Sarcophagus (describing a battle of the Roman Army held around 180 AD), photo by Egisto Sani, used under Creative Commons License, https://creativecommons.org/licenses/by-nc/2.0/

The Portonaccio Sarcophagus (describing a battle of the Roman Army held around 180 AD), photo by Egisto Sani, used under Creative Commons License, https://creativecommons.org/licenses/by-nc/2.0/

The Gravity of the Crime of Desertion in Roman Law

The army was the foundation of the Roman Republic, and later the Empire’s strength and dominion over the existing world. Surrounded by enemies, the existence of Rome itself depended on its army. Desertion (desertio) from the Roman Army could also have catastrophic consequences on the morale of the other soldiers, and if the army suffered, then Rome’s power and dominion would as well. Consequently, as the social, political, and economic success of Rome depended largely on its military successes, a military career was a badge of honor for any Roman citizen. Desertion was considered a serious offense and severely punished (“in military life desertion may result in the loss of a whole city,” L.V. Postma, Roman Military Law, 85 S. African L.J. 65 (1968), at 66).

The Power to Impose Military Penalties

The Roman Emperor was the head of the Roman Army. In such capacity, he exercised absolute power (imperium). The Emperor’s  supreme military power was further exercised within the ranks through the concept of imperium militiae (military power), that included the “power to collect an army, to appoint officers, and the right to administer justice to the soldiers.” (Id. at 65). This meant that Roman military officers were empowered with imperium militia and had the authority to punish the crime of desertion. (Vincenzo Arangio-Ruiz, Sul reato di diserzione in diritto romano [About the Crime of Desertion in Roman Law], in Rariora, 1946 at 274). (Rome established military garrisons throughout its territories which were staffed at all times and desertion from a garrison would always be easily detected). Imperium militiae included the power of military commanders to punish conducts which in their opinion were “prejudicial to military discipline.” (L.V. Postma, supra at 66).

The Penalties Associated with the Crime of Desertion

Military penalties in Roman law for lesser offenses included: being hit by the centurion –that is, a Roman commander of 100 legionaries—with his staff (called castigatio or animadversio fustium); reduction in pay, fines or deductions from the pay allowance (called pecuniaria multa); imposition of additional duties (munerum indictio); relegation to inferior service or duties (called militiae mutatio); reduction in rank (called gradus deiectio); and dishonorable discharge (called ignominiosa missio) (Arangio-Ruiz, supra at 103-106).

As a military crime, desertion could be classified as positive or negative desertion –that is, emansio and desertio, respectively. The emansor was the soldier who voluntarily deserted but was not subsequently caught, while the desertor was the soldier who also voluntarily left the Roman Army but was afterwards arrested (Id. at 279).

Roman law defined a “deserter” as he who takes arms against the state or in any other way takes a belligerent stance against the prince, that is, the Roman Emperor. A “transfuga” was a deserter who joined the enemy lines. (Id. at 275-6). Soldiers who were captured trying to join the enemy were also punished. (Id. at 278).  Those who aided and abetted desertors (called receptarores) were punished as well. (Id. at 279).

Desertion was punished with death (Id. at 284).  Resisting arrest for desertion while using arms was an aggravating circumstance. (Id. at 286). The abandonment of a guarding post was considered as an aggravating case of emansio. (Id. at 287).  For cases of long-protracted desertion —that is, where it is not possible to assess the desire to return, which is proper of the emansor— Roman law applied deportation instead of death, a penalty that otherwise was exclusively reserved for pagans and involved the deprivation of Roman citizenship. (Id. at 287).

In addition to the military penalties, civil liability was imposed on convicted deserters which required them to return monies and other monetary benefits (in integrum restitutio) received while having served in the Roman Army (Id. at 289).

Procedural Aspects

Roman law provisions on desertion— as was the case with all provisions related to Roman military law on crime and punishments— have features that are totally different from the common Roman criminal law. (Id. at 273). The punishment was imposed by the military judge summarily and was based on the field commander’s own observations.  No provision was made for the swearing in of witnesses. Only in certain cases could the accused defend himself. (L.V. Postma, supra at 66).

For more on the subject of Roman military law, we invite you to review the resources of the Library of Congress, which include among others:

5 Comments

  1. Sam Washington
    July 13, 2016 at 5:52 am

    Mama mia, grazie!

  2. Antonella MacNeish
    July 25, 2016 at 2:52 pm

    What form did the Capital punishment take for a deserter?

  3. Ruth Levush
    August 4, 2016 at 2:35 pm

    Dante has provided the following as response to your question regarding the form of capital punishment imposed for deserters:

    We did not find specific information concerning the different forms that capital punishment of a deserter took according to Roman law. Based on the literature, however, it appears that Roman soldiers convicted of desertion would have received penalties according to their rank, with the honestiores (upper class) soldiers receiving more “dignified” forms of death sentences than the humiliores (lower class) soldiers.The option of exile was also more broadly available to the honestiores. When exile was not authorized, deserters from these classes could be sentenced to decapitation or to being thrown from a cliff (usually the Saxum Tarpeium or the Tarpeian Rock, referred to as a “steep cliff of the southern summit of the Capitoline Hill“, overlooking the Roman Forum in Ancient Rome). Deserters belonging to the lower classes, however, could be sentenced to death by crucifixion, being burned alive, drowned in a sack, beaten to death, or thrown to the beasts in the arena.

    It should be noted that there was a great evolution in the application of the death sentence throughout the different stages of Roman law. For example, in the Late Republic there was a marked inclination to reduce the occurrence of death sentences. During the Principate, a gradual opening to the substitution of the death penalty with self-exile from Rome took place. However, also during this period, the expansion of the alternative of exile was accompanied with a tendency to great cruelty (saevitia) in the administration of death sentences. Emperor Claudius introduced a decree allowing for the liberum mortis arbitrium (free election of death) to the condemned.

    For further reading see Richard A. Bauman, Crime and Punishment in Ancient Rome (1996) at 6-19; Eva Cantarella, Supplizi Capitali in Grecia e a Roma [Capital Punishments in Greece and Rome] (1991) at 242.

  4. Tarrian
    August 15, 2016 at 8:06 am

    Who would prosecute such cases? Presumably the delator system wouldn’t work here.

  5. Cheryl Golden
    September 24, 2020 at 10:12 am

    Thank you for this great overview and bibliography. This is very helpful for my students as an introduction to the topic.

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