10.
From two passages
1 in Cicero's rhetorical treatises, we learn what was
apparently the original form of the punishment of parricide. Immediately after
sentence was passed, the criminal's face was covered with a wolf's skin, and
wooden sandals
2
bound on his feet, as though the air might no longer be
defiled by his breath nor the ground with his tread. He was then taken back to
prison, but only to remain there until a sack was prepared in which he was cast
into the nearest river or sea. We hear of further provisions in the Pandects
3 poena parricidii more maiorum haec instituta est, ut parricida virgis sanguineis (with scarlet rods)
verberatus, deinde
culleo (made of leather)
insuatur cum cane (an animal despised by
Greeks and Romans),
gallo gallinaceo (which, like the parricide, was
devoid of all filial affection),
et vipera (a creature universally
hated, and whose birth was supposed to necessitate its mother's death
4
),
et simia (probably as a degraded imitation of man),
deinde in mare
profundum (or into a river)
culleus iactetur5 The sack with its
contents was thrown into the sea, in order that the criminal might be withdrawn
from all the elements: "
ut omni elementorum usu vivus carere incipiat et ei
coelum superstiti, terra mortuo auferatur"(Justinian, Inst. iv. 18.6). From
the fact that Cicero does not mention the animals, while two writers under the
Empire refer to them (Seneca, de Clem. 1. 15, to the serpents; and Juvenal,
8.212, 13.154, to the apes), it has been inferred that they were not added till
after the establishment of the Empire; but Cicero's not mentioning them can
hardly be taken as a proof of this, since according to his later opinion
6 even
what he does say here about the
poena cullei is too full and copious.
11.
Though Cicero and the Digest (l.c.) speak as if the
poena cullei
regularly occurred in practice, it is a question whether this was the case
under the later republic. Zumpt
7 believes that it was inflicted only in cases
where there was no need of a trial, viz. when the criminal was caught in the
very act, or when he confessed his guilt. Zumpt's arguments are:
(1) No
quaestio could or ever did inflict the punishment of death.
(2) Suetonius, in order to show the leniency of Augustus, describes him as
dealing in the following way with a man caught in the act of parricide. The
Emperor wished to get him off the punishment of the sack, and therefore put to
him the leading question, 'You surely did not kill your father?'
because only those who confessed their guilt received this
punishment.8 In such a case the criminal might answer 'No,' and
then be tried and punished in the ordinary way, viz. by exile and
confiscation.
We may also notice that Cicero's passage about the
culleus in this
speech
9 is evidently meant to enhance the greatness of the
crimen 10
of which his adversaries had dared to accuse Sex. Roscius, not to rouse the
pity of the jury as if he were really in danger of so horrible a punishment.
