158 Lafferty
Over time the list of offences that constituted a crime grew to reflect chang-
ing social attitudes. So, too, did the range and severity of punishments, such
that by the beginning of the 4th century there was a strong desire, fuelled by
considerations of public interest (utilitas publica) and expressed both in public
opinion and in the minds of legislators, to increase the use of the death pen-
alty. Emperors called for a capital penalty regardless of a person’s rank or status
in cases involving such serious crimes as violence (vis); conspiracy to cause
the deaths of illustres, senators, or servants of the imperial household; magic
and soothsaying; murder, forgery and counterfeiting (or deliberately abetting
the same); assaults on holy virgins or widows, and failing to destroy defama-
tory writing. Adulterers, too, could be punished by death, whereas in previous
centuries adultery entailed a fine and sentence of banishment to an island.33
The laws of Theoderic’s Italy preserved the basic principles of Roman crimi-
nal law and penal policy. For serious offences, penalties ranged from the most
extreme, that is death (in assorted manner),34 to exile (which entailed ban-
ishment to another region of the kingdom),35 and flogging (usually carried
out in public and sometimes in lieu of another penalty).36 Financial penal-
ties varied widely, from confiscations and fines (to the benefit of the fisc)37 to
compensation in money or kind, and established according to a fixed amount
(usually fourfold the amount originally taken).38 Sometimes a particularly
gruesome penalty was reserved for an especially heinous act. For instance, a
slave, domestic servant, or freedman who attempted to denounce his master
in court was to be “cut down with swords”.39 The deterrent effect could be fur-
ther enhanced if the punishment fitted the crime. Thus, an arsonist was to be
burned alive.40 In addition, this was still a society where members of the upper
class could rightly expect, and lawfully demand, preferential treatment in rela-
tion to their social inferiors. More than simply using his wealth to pay a fine
and avoid the otherwise universally stipulated punishment for a given offence,
33 CTh 9.40.1 (314). On the subject of adultery as a capital offence in Constantine’s reign,
see generally Mommsen, Le Droit pénal romain, vol. 2, p. 426; Dupont, Le Droit criminal,
pp. 22–8; Bauman, “Leges Iudiciorum Publicorum”, pp. 103–233; Treggiari, Roman Marriage,
p. 290; Evans Grubbs, Law and Family, pp. 95, 216–225.
34 ET 1, 9, 17, 21, 38–39, 41, 47, 48–9, 50, 56, 63, 78, 91, 97, 104, 107, 108, 110, 120, 125.
35 ET 18, 42, 75, 83, 89, 95, 97, 108.
36 ET 55, 73, 83, 89, 111.
37 ET 3, 10, 22, 24, 55, 73, 83, 84, 104, 111, 112, 115.
38 ET 2–4, 10, 11, 64, 70, 71, 80, 84, 97, 109 and 117, 141.
39 ET 48, 49.
40 ET 97.