In the heroic ages the general term φυγὴ
(flight) was for the most part applied in the case of those who, in
order to avoid some punishment or danger, removed from their own country
to another, chiefly when homicide had been committed, whether with or
without malice aforethought. Thus Patroclus appears as a fugitive for
life, in consequence of manslaughter committed by him when a boy
). In other instances mentioned
in Homer (Hom. Il. 2.665
; Od. 15.224
) we do not know whether the homicide was accidental
or not; the slaying of Molycrus by Hyettus (Hesiod. fr.
148 = Paus. 9.36
) would, according to later views, have been
The duty of taking
vengeance devolved upon the relatives of the slain man (Od. 24.433
ff.), the state holding aloof;
the penalty of exile was sometimes remitted, and the homicide allowed to
remain in his country on payment of a ποινή,
the price of blood, or weregeld
which was made to the relatives or nearest connexions of the
slain (Il. 9.630
). In the trial scene in
ff., almost every point
of importance has been variously explained by scholars. First, as to the
exact nature of the point at issue, all agree that it is about the
blood-price of a man who has been slain; but whilst Sir H. Maine
p. 377; cf. Gladstone, Homeric
iii. p. 126 f.) explains 1. 499 f. thus, “One
person asserts that he has paid the composition, the other that he
has never received it,” Hofmeister (Z. f. vergl.
ii. p. 433 ff.;
Leist, Graeco-Ital. Rechtsgesch.
p. 329; W. Leaf, in
Journ. of Hell. Stud.
x. p. 123 f.) renders it,
“One vowed he would give anything, the other refused to accept
anything,” the question to be decided being whether the
relation must or must not refuse the offered composition, i. e. whether
it was a (φόνος ἑκούσιος
Secondly, in the two talents of
gold which lie in the midst, P. M. Laurence (Journ. of
viii. p. 125 f.) sees the ποινὴ
but surely two talents is too
small a sum to represent the price of a man slain (W. Ridgway,
Journ. of Phil.
x. p. 30 f. and Journ. of
x. p. 136). Schömann (on Isae. p. 240,
and Antiq. j. p. Gr.
p. 73, n. 10) looks upon them as
since δίκην εἰπεῖν
is used of litigants only;
however, the [p. 1.817]
fact that δίκην εἰπεῖν,
or rather λέγειν,
occurs in this sense in Attic, decides nothing for
Homer, and a phrase like δίκας σκολιῶς
used of the βασιλεῖς
in Hesiod. Op. et D.
Sir H. Maine's explanation, viz. that the two talents were to be given
to him who should explain the grounds of the decision most to the
satisfaction of the audience. According to W. Leaf, who distinguishes
two scenes, first the dispute in the market-place, when the litigants
wish to refer the matter to an ἴστωρ,
secondly the scene “in court,” when the ηέροντες
are the judges, the ἴστωρ
as president of the council had to
assign them to that councillor whose advice he judges to have
contributed most to the final decision.
For later terms we must distinguish between voluntary exile and exile
appointed as a punishment by law for particular offences. To speak first
of the latter: here we must distinguish again between exile for a specified period
and exile for life.
A person convicted of accidental homicide had to leave the country within
a specified time by a certain road and to remain in exile until the
relations of the slain man pardoned him (Dem. c.
p. 644.72; c. Mid.
p. 528.43, and
in [Dem.] c. Macart.
p. 1069.57 = C. I. A.
i. No. 61; αἴδεσις
); his possessions were ἐπίτιμα,
i. e. not confiscated (Dem. c.
p. 634.45; cf. Theophr. π.
14, in Journ. of Phil.
3). The banishment in this case not being for life, it is reasonable to
suppose that if the relatives of the slain man refused to make a
reconciliation, the law stepped in and exacted such. According to some,
a year was the term of exile (Hesych. sub voce
etc.; cf. Plat.
p. 865 E), but Philippi (Areopag u.
p. 117 ff.) brings forward strong reasons against this
opinion, and suggests a longer term than one year (cf. Antiph.
§ 10). It sometimes happened that a fugitive for accidental
homicide was charged with murder committed by him before he went into
exile; in that case he pleaded on board ship, before a court which sat
in the Peiraeus
(Dem. c. Aristocr.
p. 645.77, and Paus. 1.28
; cf. Harp. s.
Banishment for life with confiscation was inflicted on persons who rooted
up the sacred olives at Athens (Lys. pro sacr. olea
§ 41), and on those convicted of τραῦμα ἐκ προνοίας,
or wounding with
intent to kill, even though death might not ensue (Lys. c.
§ 38, de vuln. ex
§ § 13, 18; Dem. c.
ii. p. 1018.32 [TRAUMATOS EK
]; according to Philippi, p. 113, not
banishment for life; cf. Plat. Legg.
ix. p. 877 B, where
it is banishment for life without confiscation). The murder of a
non-citizen was punished with banishment, not with death (Lex.
194, 11; cf. the phrase in decrees in honour of
state benefactors; in case an attempt should be made on their lives, the
redress shall be the same, καθάπερ ἂν τὸν
Dem. c. Aristocr.
p. 650.89, and C. I. A.
ii. No. 115; Att.
ed. Lipsius, p. 377 if.). By the laws of Solon every
one was liable to banishment who remained neutral during political
contentions (Plut. Sol. 20
; Gel. 2.12
); this was no longer in force in the
days of Lysias (c. Philon.
§ 27): cf. Grote,
iii. p. 144, on the law of Ostracism replacing Solon's law, and Mahaffy
vii. p. 87).
Banishment might also be proposed as penalty by the accuser in a case of
p. 373 C (cf. the punishment of the Delians,
3 ii. p. 92 f., and of
Protagoras, D. L. 9.152
; Cic. de. Nat. Deor. 1.6.
), or a decree might direct the exile of a person: see C.
ii. No. 17, σημιούντων δὲ
αὐτὸν θανάτῳ ἢ φυγῇ οὗπερ Ἀθηναῖοι καὶ οἱ σύμμαχοι
(cf. C. I. G.
No. 2008); thus on
the motion of Themistocles (Plut. Them.
) Arthmius of Zeleia was banished from Athens (Dem. in
iii. p. 121.42; de Fals. Leg.
428.271; Aeschin. c. Ctes.
§ 258; Dinarch.
§ § 24, 25). Cf. Plat.
p. 468 B ff. and Schol. Aristoph. Frogs 546
In the majority of cases, however, when we hear of exiles (here we do not
take into account those banished by political opponents), we must not
refer the banishment to a special conviction, but must rather think of
voluntary exile, men preferring to leave the country to running the risk
of standing their trial. Wilful murder was punished with death and
confiscation of property; but the accused could avoid it by leaving the
country after the first day of the trial (except according to Pollux,
8.99, 117, in the case of parricide), nor had the prosecutor any right
to prevent him; the murderer was then condemned to perpetual exile and
his property confiscated. Hypereides (pro Eux.
gives five instances of eisangelia, and winds up with the remark,
“None of them ventured to take his trial, ἀλλ᾽ αὐτοὶ ᾤχοντο φεύγοντες ἐκ τῆς
and altogether it was rare to see any one of
those proceeded against by eisangelia appear in court” (cf.
Journ. of Phil.
vii. p. 108). If such exiles ventured
to return, they were immediately put to death (Dem. c.
p. 630.31; [Lys.] c. Andoc.
15; Lye. c. Leocr.
§ 93); and whoever harboured
or entertained any one who had fled from his country to avoid capital
punishment, was liable to the same penalties as the fugitive himself
(Dem. c. Polycl.
p. 1222.49). Such exiles were not
allowed to return home even upon a general amnesty. Thus Solon's law
excluded from his comprehensive measure of amnesty those in exile for
charges of murder or of subversion of the public liberty (Plut. Sol. 19
φόνῳ ἢ σφαγαῖσιν ἢ ἐπὶ τυραννίσι
i. p. 181, φόνος
a private murder, σφαγή̀
a massacre, sc. in motu
); and from the general amnesty proposed by Patrocleides
after the defeat of Aegospotami, those were excepted who had fled from
Athens without standing their trial (ὁπόσα
ἐν στήλαις γέγραπται τῶν μὴ ἐνθάδε
), and also the classes of exiles which were
exempted by Solon's law (Andoc. de Myst.
§ 77, 78; Droysen, de Demoph., Patrocl., Tisam.
probably the same restrictions were made when
during the Persian wars an act of amnesty was passed, see Jebb,
i. p. 125 f.). Indeed, against the exiles, a
large proportion of whom were at Deceleia assisting the Lacedaemonians
in their warfare against Athens, a severe decree was passed by the
Athenian assembly (Lyc. c. Leocr.
§ 121); they
returned, however, when Athens had to surrender to Lysander (Andoc.
§ 80; Xen. [p. 1.818]Hell.
2.2, 20; Plut. Lys.
; Lys. c. Eratosth.
§ 77). In the
general restoration of exiles throughout the Greek cities proclaimed by
order of Alexander the Great, and afterwards by Polysperchon, exception
is made of men exiled for sacrilege or homicide (Diod. 17.109
). There are
instances of individuals being allowed to return from exile: Alcibiades
and others (Thuc. 8.97
, etc.), Demosthenes
(on the proposal of Damon, [Plut.] Vitt. X. Oratt.
D; Plut. Dem. 27
, etc.). On the decree of
Oenobius, by which Thucydides is said to have been recalled (Paus. 1.23
Plin. Nat. 7
. § §
30, 110), and on the amnesty after the Sicilian expedition (πλὴν τῶν Πεισιστρατιδῶν,
32 f.), see Gilbert,
1879, p. 251 ff., and Stahl, Rhem.
1884, p. 458 ff. To those who received permission to return
to Athens, the state restored the value of the confiscated property
(Plut. Alc. 33
; Diod. 13.69
, and Isocr. de Big.
46; cf. also Ep.
8, 3; the four men whom Andocides had
named, in addition to the list of Teucrus, as concerned in the
mutilation of the Hermae, fled (de Myst.
but at the time he delivered his speech on the Mysteries ( §
53) he could refer to them as men οἳ . . .
κατεληλύθασι καὶ ἔχουσι τὰ σφέτερα αὐτῶν
C. I. A.
i. Nos. 274-7, and Suppl. p. 35, on the sale
of their property). In Phlius those who had bought such property had to
give it up on receiving back from the treasury the price they had paid
for it (Xen. Hell. 5.2
); at Athens their title would have
been absolute (Dem. c. Timocr.
p. 717.54; c.
or banishment, as a general
term, is comprehended Ostracism
). The difference between the two is stated
by the Schol. Aristoph. Wasps 941
(cf. Suid. s. v.) to be: “φυγὴ
(i. e. ἐειφυγία,
life) differs from ostracism, inasmuch as those who are banished
lose their property by confiscation, whereas the ostracised do not;
the former also have no fixed place of abode, no time of return
assigned, but the latter have.” The fixed place of abode is
only mentioned here, Philochorus in Lex. Cant.
simply stating, μὴ ἐπιβαίνοντα ἐντὸς
Γεραίστου τοῦ Εὐβοίας ἀκρωτηρίου
: see also Thuc. 1.135
, about the movements of
Themistocles. Of the fragments of Arist. Polit.
(Bergk, Rhein. M.
1881, pp. 87-115),
one relates to ostracism; according to Bergk's reading, it confirms the
tradition (Aelian, Ael. VH 13
) that Cleisthenes himself fell a victim
(though not the first) to his institution. It was introduced after the
expulsion of the Pisistratidae, “to drive their friends out of the
country.” Its nature and objects are thus explained by Arist.
3.8 (13 Bk.), 2 S. (see, however,
§ 6 c about its later working): “Democratical
states,” he observes, “used to ostracise, and remove from
the city for a definite time, those who appeared to be pre-eminent
above their fellow-citizens, by reason of their wealth, the number
of their friends, or any other means of influence.” Grote
(iv. p. 78 ff.) fully discusses the purpose and working of the
ostracism; see especially the note on p. 85, “The practical
working of the ostracism presents it as a struggle between two
contending leaders, accompanied with chance of banishment to
both,” and v. pp. 221, 282, etc.: cf. Lugebil, Jahrb. f.
Suppl. iv. p. 135 ff.
The manner of effecting ostracism was as follows: In the κυρία ἐκκλησία
of the sixth prytany of the
year, the assembly determined whether such a step was necessary
s. v. κυρία
); if they decided in the affirmative, a day was
named in the eighth prytany for the voting (ib. s. v. ὀστρακισμός
: cf. Schol. Aristoph. Kn. 851
, and fragm.
Lex. Demosth. Aristocr.,
1882, p. 152); these two important assemblies
were fixed at this time on account of the larger attendance at the
popular assembly consequent upon the celebration of the Lenaea and of
the Dionysia (Gilbert, Beitr. z. innern Gesch. Ath.
229 ff.). On the appointed day the agora was railed round, with ten
entrances left for the citizens of each tribe: by these the tribesmen
entered and deposited in urns each his ὄστρακον
or potsherd (hence ostracism was called κεραμικὴ μάστιξ,
iv. p. 638), with the name of the person written on it
whom he wished to be ostracised (κάτω στρέφοντες
). The nine archons and the βουλὴ
superintended the proceedings. If a
total of 6,000 votes had not been recorded, the ceremony ended in
nothing; “for no law could be made against any single citizen
unless it seemed good to 6,000 citizens voting secretly”
(Andoc. de Myst.
§ 87; Dem. c.
p. 719.59; [Dem.] c. Steph.
1132.12; and Boeckh, Sthh.
3 i. p.
294). Provided this total was reached, he who had the majority of votes
had to leave Athens within ten days. There is a difference of opinion
among the authorities, as well as among the commentators, whether the
minimum of 6,000 applies to the votes given in all, or to the votes
given against any one name. Grote favours the latter opinion (iv. p. 84
n.; cf. Schömann, Verfassungsgesch. Ath.
n.), but the former (Plut. Arist. 7
seems the more probable (Lugebil, p. 144 if.; Fraenkel, Att.
p. 92 n.; cf. Thuc.
). The period of banishment was ten years ([Andoc.] c.
§ 2); according to Lex. Cant.
it was at a later period reduced to five years, but Hyperbolus, the last
who was ostracised, had lived six years in exile when he was murdered
(Gilbert, p. 231 n.). In some instances persons ostracised were recalled
before the ten years had expired: thus Themistocles is said to have
himself proposed the restoration of his rival Aristeides from ostracism
“a little before the battle of Salamis” (but see Hdt. 8.79
, and Corn. Nep.
), and Pericles did
the same with regard to Cimon (Plut. Per.
17), and “in both cases the
suspension of enmity between the two leaders was partly the sign,
partly also the auxiliary cause, of reconciliation and renewed
fraternity among the general body of citizens” (Grote, v. p.
Some of the most distinguished men at Athens were removed by ostracism;
besides those mentioned before: Hipparchus, the son of Charmus, a
relative of the Pisistratidae (Harpocr.; Androtion, fr.
5, Didot; Plut. Nic. 11
Thucydides, the son of Melesias (Plut. Per.
. etc.); Alcibiades and Megacles, the paternal and maternal
grandfathers of the distinguished Alcibiades ([Andoc.] c.
§ 34; Lys. c. Alcib.
Xanthippus, the father of Pericles (Heracl. Pont. 100.1); Callias, the
son of Didymus ([Andoc.] c. Alcib.
§ 32); Damon,
the preceptor of Pericles [p. 1.819]
in poetry and music
(Plut. Per. 4
); Meno (Hesych. sub voce
), etc. The last person
against whom it was used was Hyperbolus, the lamp-maker, son of Chremes;
our information on that point is scanty (for the date cf. Beloch,
d. att. Politik scit Pericl.
p. 339 f.). Thucydides
) mentions Hyperbolus only once--in
411 B.C., when he terms him “one
Hyperbolus, a person of bad character (μοχθηρός
), who had been ostracised not from fear of
dangerous excess of dignity and power, but through his wickedness
and his being felt as a disgrace to the city” (cf. Androt.
48, Didot, διὰ
and Plato quoted by Plut. Nic. 11
, οὐ γὰρ τοιούτων
εἵνεκ᾽ ὄστραχ᾽ ηὑρέθη
); hence, it is said, ostracism
was considered degraded and accordingly discontinued. (Philochorus in
s. v. μετὰ
[sc. Ὑπέρβολον] δὲ
ιξατελύθη τὸ ἔθος
cf. Theoph. π.
26, Journ. of
vi. pp. 6, 23.) Hyperbolus cannot possibly have been
so insignificant a person as Thucydides and the comic authors try to
make him out: he acted as ἱερομνήμων
(Aristoph. Cl. 623
), was βουλευτής
(Meineke, ii. p. 670), στρατηγός
1319; Schol. Acharn.
846), and leader of the democratic
party after Cleon's death (Aristoph. Pac.
570); and it is especially to be noted that he
was slain by the oligarchical conspirators who were aiming to overthrow
the democracy at Athens. Plutarch gives three different versions of how
Hyperbolus came to be ostracised. The two opposing parties of Alcibiades
and Nicias, after the vote of ostracism was decreed, united to turn the
vote against Hyperbolus (Arist.
according to Theophrastus, the opposition at first and the coalition
afterwards was not between Nicias and Alcibiades, but between Phaeax and
11); and in Alcib.
Plutarch mixes up these two versions (cf. [Andoc.] c.
). Various attempts have been made to reconcile
these accounts: thus Zurborg (Hermes,
pp. 198-206) suggests that when once the ostracising vote had been
formally pronounced and could no more be prevented from taking place,
the two opposing parties selected Phaeax and Hyperbolus to take the
places of the real party-leaders, Nicias and Alcibiades; Seeliger
(Jahrb. f. class. Phil.
1877, pp. 739-747) considers
the struggle between Nicias and Alcibiades as a pure fiction of
Plutarch, etc. However that may be, Hyperbolus was certainly the last
person ostracised, but it is anything but certain that ostracism was no
longer employed because the ostracism of Hyperbolus was felt “as a
gross abuse” of the institution (Grote, vi. p. 378); it is,
on the other hand, very probable, as Lugebil and others suggest, that
ostracism was formally abolished under the archonship of Eucleides.
1881, p. 87 ff.) is of opinion that the
disuse of ostracism dates from 417 B.C., and
that ostracism was replaced by the γραφὴ
“which, though it may have long existed in the special form of an
action against direct verbal contradictions of particular laws by
new enactments,” acquired its importance from the disuse of
Ostracism prevailed in other democratical states as well as Athens;
namely, at Argos (Arist. Pol.
8.2, 40 S. = 5.2, 5 Bk.), Miletus, and Megara (Schol.
Aristoph. Kn. 851
). From the
ostracism at Athens was copied the Petalism (πεταλισμός
) of the Syracusans, so called from the
or leaves of the olive, on
which was written the name of the person whom they wished to remove from
the city for a period of five years. Diodorus (11.55
) affirms that it was
so unjustly and profusely applied, as to deter persons of wealth and
station from taking any part in public affairs; for which reason it was
speedily discontinued. [G.L
. In 100.22 it is
stated that Cleisthenes introduced ostracism (ὃς
sc. νάμος ἐτέθη διὰ τὴν
ὑποψίαν τῶν ἐν ταῖς δυνάμεσιν, ὅτι Πεισίστρατος δημαγωγὸς
καὶ στρατηγὸς ὢν τύραννος κατέστη;
cf. Harpocr. s.
). It was in the first
place aimed at the supporters of his family who still remained at
Athens--the first victim was Hipparchus, the son of Charmus, the law
being put in force against him two years after the battle of Marathon,
and in 487 B.C. Megacles, the son of Hippocrates, was ostracised--but
soon it became to be used εἴ τις δοκοίη μείζων
e. g. Xanthippus, the son of Ariphron, in 468 B.C., Aristides, Damonides (100.27). The only
foundation for the story that Cleisthenes himself was ostracised is
Aelian (Ael. VH 13.24
). At the approach
of Xerxes the persons ostracised were recalled, and it was henceforward
ordained that persons ostracised should reside ἐντὸς Γεραιστοῦ καὶ Σκυλλαίου ἢ ἀτίμους εἶναι
i. e. between the extreme south of Euboea and
east of Argolis respectively. “The regulation,” Mr. Kenyon
remarks, “cannot, however, have been strictly observed
subsequently; for instance, we find the ostracised Themistocles
living in Argos (Thuc. 1.135
), and the
ostracised Hyperbolus in Samos (Thuc.
).” These facts, and the statement of Philochorus
in Lex. Rhet. Cantabr.
s. v. ὀστρακισμοῦ τρόπος: μὴ ἐπιβαίνοντα ἐντὸς Γεραίστου τοῦ
suggest the reading ἐκτὸς
instead of ἐντὸς
in the Ἀθην.
according to Paulus in Dig. 48
, means banishment inflicted by the state as a
punishment, and accompanied by loss of civitas:
if the person banished did not cease to be civis,
it was not properly exsilium,
From the infliction of exile (in this specific sense) for crime, however
heinous, the early Romans shrank with an abhorrence which it is
difficult for us to understand or even realise ; it was a punishment
unknown to their law for centuries. Thus Cicero says (pro
34) that no Roman was ever deprived of his civitas
or his freedom by a lex;
and in the speech pro
(16, 17, 29) he puts the same thing in a more guarded way
by saying, that no privilegium,
directed against an individual, could be
enacted so as to affect the caput
Roman citizen unless he was first condemned in a judicium;
and that no civis
could lose his freedom or citizenship without his own consent. It was on
the same principle that Roman citizens who went out as Latin colonists
did not become Latin unless they went voluntarily and registered their
names, thereby ceasing to be cives Romani.
In the passage of the speech for Caecina, already referred to, Cicero
says that persons condemned on a capital charge punished by exile did
not lose their citizenship till they had been accepted as citizens of
some other state: “si non accipiunt, ut Mancinum Numantini,
retinet integram causam et jus civitatis.” In another place
11) he alters the form of
the proposition by remarking that a Roman who became a citizen of
another state thereby
ceased to be a Roman
citizen. It must not be forgotten that in the pro
it is one of Cicero's objects to prove that his
client had the rights of a civis,
the pro Domo
to prove that he himself had
not been an exsul,
though he was interdicted
from fire and water (for which see below) within 400 miles of Rome
3.4). Now, having been thus interdicted, and
having evaded the penalty (to use his own words) “by going beyond
the limits,” he could only escape the consequences, namely
either by relying on the fact
of his not being received as a citizen into another state, or by
alleging the illegality of the proceedings against him. The latter is
the ground upon which he appears to maintain his case in the pro Domo:
he alleges that he was made the
subject of a privilegium,
been first condemned in a judicium
(100.17). At any rate, he was restored by a lex
4.1). Niebuhr asserts
that Cicero's interdiction from fire and water did not necessarily
deprive him of the civitas:
3.23, Cicero admits by implication that he
had lost both his citizenship and his ordo,
or rank as senator.
These references to Cicero are intended to establish the fact that the
Romans had a great horror of compulsory exile carrying with it loss of
The explanation of this fact
is to be [p. 1.820]
found in the identification, by the
ancient world, of “stranger” with “enemy,” and
in the habit of primitive societies to treat all persons who were not
members of their own body politic as absolutely
“rightless.” The outcast from his tribe and people was no
better off than the wild beasts which are the prey of every hunter: he
lost everything that made life valuable or even bearable: he became
civilly dead, and liable to be reduced to slavery wheresoever he might
But though the state hesitated to inflict such a fate as this upon its
citizens, yet it did not deny them the privilege of voluntarily
withdrawing from its territories in order to escape from what might seem
to them even more terrible penalties, or even from the mere disgrace of
prosecution (Liv. 1.41
; Cic. pro Caec. 33
, 34). Exile was conceived,
not as a punishment, but as a means of escaping punishment, which the
Romans left open to the accused up to the moment of his condemnation:
“Exsilium enim non supplicium est, sed perfugium portusque
supplicii:. . . confugiunt quasi ad aram, in exsilium” (Cic. pro Caec. 34
Schwegler, Römische Geschichte,
i. p. 438).
Indeed, in the earlier republican period, a Roman citizen might have a
right to go into exsilium
to another state,
or a citizen of another state might have a right to go into exsilium
at Rome, by virtue of certain
isopolitical relations existing between such state and Rome. This right
was called jus exulandi
with reference to the
state to which the person came; with respect to his own state which he
left he was exsul,
and his condition was
with respect to the state
which he entered he was inguilinus;
and at Rome
he might attach himself to a quasipatronus
[APPLICATIO]. And Niebuhr may be correct in
stating that they who settled in an unprivileged place (i. e. one which
was not in an isopolitical relation with Rome) did not technically
become “exiles” without a decree of the people declaring
that their settlement should operate as a legal exsilium;
thus it appears from Liv.
, that it was declared by plebiscitum that C. Fabius, by
going into exile to Tarquinii (which was a municipium, Cic. pro Caec. 4
), was legally
in exile. The commonness of this decree,
however, seems to require a different explanation; and it seems better
to regard the voluntary withdrawal of an accused criminal as an
admission of his guilt, which the Romans habitually confirmed by a
plebiscitum which gave it a legal
), and, in order to prevent the return of the accused, forbade
other members of the state to afford him shelter, fire or water: the
most common expression is aquae et ignis
), but to
aquae et ignis
Cicero adds tecti
30; cf. Plut. Marius,
100.29). When an
exile was recalled, the prohibition was removed by an equally solemn
legislative act, as is shown by the case of Cicero already referred to.
The real purpose of the “interdiction” seems to have been
to clear the community from any guilt which it might have incurred in
the eye of the gods by letting a criminal escape unpunished. It was no
mere political outlawry; it was intended to purify the body politic by
casting out its impure elements. Fire and water (πῦρ,
) were the symbols of purity, and
could not be dispensed with in the performance of any act or ceremony
which possessed a religious significance, e. g. sacrifice and marriage
(cf. Hartung, Religion der Römer,
i. p. 198). It
was thus not as things indispensable to human life (as Varro represents,
de Ling. Lat.
4), or as symbolical of mutual human
support and sympathy (as has been argued from Dig.
fire and water were denied to the exile; but “along with them, as
the marks of a pure society, which the criminal would defile by his
further use of them, he is cut off from all share and lot in that
society” (Ihering, Geist des röm.
i. p. 288).
Towards the end of the republican period it became not unusual to inflict
loss of civitas
and exile by interdiction
of fire and water quite independently of any voluntary withdrawal on the
part of the accused: it takes its place as an ordinary criminal sanction
or punishment, awarded not by a lex or plebiscitum, but by a judge or
judges after trial and conviction (Appian, de Bell. Civ.
1.31; Cic. pro Domo,
31; pro Murena,
23; D. C. 37.29
). The emperors introduced a new form of banishment, deportatio in insulam,
the criminal being
confined, either in perpetuity or for an indefinite time, to an island
or some prescribed space on the mainland, but within its limits enjoying
personal freedom (D. C. 56.27
; Tac. Ann. 3.38
). This and the old interdiction subsisted side by side as
punishments of equal severity (Dig. 28
and 2; 32, 1, 2; Cod. 5, 17, 1), though deportatio
in fact became the more common: in Gaius (1.90
and 161) loss of civitas
is said to be
inflicted by interdiction of fire and water, deportatio
not being mentioned, and in the passage of
Justinian's Institutes (1.16, 2) which corresponds with Gaius, 1.161,
interdiction is spoken of as apparently still existing: but in Dig. 48
Ulpian speaks of deportatio
having been substituted for interdiction as a
punishment for peculatus,
and perhaps this
was the case, or tended to be so, with all crimes. Not every magistrate
or judge could award deportation: the praetorian prefects and their
deputies were privileged to do so, as was the praefectus urbi
by a rescript of Severus: but the
provincial governors (praesides
) had to
confine themselves to lesser penalties unless specially authorised by
the emperor (Dig. 30
). Like aquae et ignis interdictio,
with it loss of civitas;
they were capitales poenae
because they affected the
of the civis.
The condemned man lost his patria
over his children, or, if in potestas
before himself, was so no longer, for no one
could either exercise or be under this power except citizens of Rome;
his property was confiscated (Dig. 48
), and his testament cancelled, and being a peregrinus
he was incapable of executing
another. But the loss of citizenship did not have the effect of
dissolving his marriage (Cod. 5, 16, 24) or depriving him of the
capacity of buying and selling, or of doing any other legal acts which
could be performed by the jus gentium:
“jure civili caret, gentium vero utitur,”
which as contrasted with exsilium
was known under the Republic (Liv. 3.10
, [p. 1.821]
40.41; Cic. pro P. Sextio,
)--and instances of which occur in Sueton. Aug.
50; Tac. Ann.
; Suet. Cl. 23
--was a slighter punishment, appearing in two
forms. A person might be forbidden to live at Rome or any other specific
place, or an island or some other confined spot might be assigned to him
for his residence (Dig. 48
, pr. &c.), and this
either for a definite or an indefinite time (Dig. ib. 7, 2): the penalty
might be awarded by the emperor, the senate, the two praefects and the
provincial governors, but not by the consuls (ib. 14, 2). The relegatus
retained his civitas,
and so did not undergo capitis deminutio:
“relegati in insulam in potestate sua liberos retinent, quia et
alia omnia jura sua retinent: tantum enim insula eis egredi non
licet” (Dig. ib. 4), nor was his property forfeited except by
special direction of the judge by whom he was condemned (ib. 1, 4), and
such forfeiture, whether total or partial, was allowed only in cases of
perpetual relegation (Dig. ib. 7, 4). How essentially different this
form of banishment was from genuine exsilium
is shown by Ovid (Ov. Tr.
), who describes himself not as exsul,
which he considers a term of reproach, but as relegatus.
Speaking of the emperor, he
says--“Nec vitam, nec opes, nec jus mihi civis
ademit;”and a little further on--“Nil nisi me patriis
jussit abire focis.”
Cf. also Trist.
2.127, &c. But by
the later writers a wider meaning was given to the term exsilium,
by which it was made to include
as well as deportatio
and aquae et ignis
Thus Marcianus says in Dig.
“Exsilium triplex est: aut certorum locorum interdictio, aut
lata fuga, ut omnium locorum interdicatur praeter certum locum, aut
insulae vinculum, id est relegatio in insulam:” and Paulus
5, 17, 3) speaks of deportatio as one of
the punishments for mediocria delicta,
while among the minimae poenae