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Exsilium

The Roman section only (pp515‑517)
of an article by Anthony Rich, Jun. B.A.,
on pp513‑517 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

p513 EXSI′LIUM (φυγή), banishment.

[. . .]

2. Roman. In the later imperial period, exsilium was a general term used to express a punishment, of which there were several species. Paulus (Dig. 48 tit. 1 s2), when speaking of those judicia publica, which are capitalia, defines them by the consequent punishment, which is death, or exsilium; and exsilium he defines to be aquae et ignis interdictio, by which the caput or citizenship of the criminal is taken away. Other kinds of exsilium he says were properly called relegatio, and the relegatus retained his citizenship. The distinction between relegatio and exsilium existed under the republic (Liv. III.10, IV.4; Cic. Pro P. Sex. c12). Ovid also (Trist. V.11) 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 focos."

Compare also Tristia, II.127, &c.

Marcianus (Dig. 48 tit. 22 s5) makes three divisions of exsilium: it was either an interdiction from certain places named, and was then called lata fuga (a term equivalent to the libera fuga or liberum exsilium of some writers); or it was an interdiction of all places, except some place named; or it was the constraint of an island (as opposed to lata fuga).1

Of relegatio there were two kinds: a person might be forbidden to live in a particular province, or in Rome, and either for an indefinite or a definite time; or an island might be assigned to the relegatus for his residence. Relegatio was not followed by loss of citizenship or property, except as far as the sentence of relegatio might extend to part of the person's property. The relegatus retained his citizenship, the ownership of his property, and the patria potestas, whether the relegatio was for a definite or an indefinite time. The relegatio, in fact, merely confined the person within, or excluded him from, particular places, which is according to the definition of Aelius Gallus (Festus, s.v. Relegati), who says that the punishment was imposed by a lex, senatus-consultum, or the edictum of a magistratus. The words of Ovid express the legal effect of relegatio in a manner literally and technically p516correct. (Instances of relegatio occur in the following passages:— Suet. Aug. c16, Tib. c50; Tacit. Ann. III.17, 68; Suet. Claud. c23, which last, as the historian remarks, was a new kind of relegatio.) The term relegatio is applied by Cicero (de Off. III.31) to the case of T. Manlius, who had been compelled by his father to live in solitude in the country.

Deportatio in insulam, or deportatio simply, was introduced under the emperors in place of the aquae et ignis interdictio (Ulpian, Dig. 48 tit. 13 s3; tit. 19, s2) The governor of a province (praeses) had not the power of pronouncing the sentence of deportatio; but this power was given to the praefectus urbi by a rescript of the emperor Severus. The consequence of deportatio was loss of property and citizenship, but not of freedom. Though the deportatus ceased to be a Roman citizen, he had the capacity to buy and sell, and to do other acts which might be done according to the jus gentium. Deportatio differed from relegatio, as already shown, and also in being always for an indefinite time. The relegatus went into banishment; the deportatus was conducted to his place of banishment, sometimes in chains.

As the exsilium in the special sense, and the deportatio took away a person's civitas, it follows that if he was a father, his children ceased to be in his power; and if he was a son, he ceased to be in his father's power; for the relationship expressed by the terms patria potestas could not exist when either party had ceased to be a Roman citizen (Gaius, I.128). Relegatio of a father or of a son, of course, had not this effect. But the interdict and the deportatio did not dissolve marriage (Cod. 5 tit. 16 s24; tit. 17 s1; compare Gaius, I.128, with the Institutes, I. tit. 12, in which the deportatio stands in the place of the aquae et ignis interdictio of Gaius).

When a person, either parent or child, was condemned to the mines or to fight with wild beasts, the relation of the patria potestas was dissolved. This, though not reckoned a species of exsilium, resembled deportatio in its consequences.

It remains to examine the meaning of the term exsilium in the republican period, and to ascend, so far as we can, to its origin. Cicero (Pro Caecina, c34) affirms that no Roman was ever deprived of his civitas or his freedom by a lex. In the oration Pro Domo (c16, 17) he makes the same assertion, but in a qualified way; he said that no special lex, that is, no privilegium, could be passed against the caput of a Roman citizen, unless he was first condemned in a judicium. It was, according to Cicero, a fundamental principle of Roman law (Pro Domo, c29), that no Roman citizen could lose his freedom or his citizenship without his consent. He adds, that Roman citizens who went out as Latin colonists, could not become Latin, unless they went voluntarily and registered their names: those who were condemned of capital crimes did not lose their citizenship till they were admitted as citizens of another state; and this was effected, not by depriving them of their civitas (ademptio civitatis), but by the interdictio tecti aquae et ignis. The same thing is stated in the oration Pro Caecina (c34), with the addition, that a Roman citizen, when he was received into another state, lost his citizenship at Rome, because by the Roman law a man could not be a citizen of two states. This reason, however, would be equally good for showing that a Roman citizen could not become a citizen of another community. In the oration Pro Balbo (c11) the proposition is put rather in this form; 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 oration Pro Caecina, it is one of Cicero's objects to prove that his client had the rights of a Roman citizen; and in the oration Pro Domo, to prove that he himself had not been an exsul, though he was interdicted from fire and water within 400 miles of Rome (Cic. Ad Attic. III.4).º Now, as Cicero had been interdicted from fire and water, and as he evaded the penalty, to use his own words (Pro Caecina c34), by going beyond the limits, he could only escape the consequences, namely, exsilium, 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. But the latter is the ground on which he seems to maintain his case in the Pro Domo: he alleges that he was made the subject of a privilegium, without having been first condemned in a judicium (c17).

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 exul, and his condition was exsilium: with respect to the state which he entered, he was inquilinus;2 and at Rome he might attach himself (applicare se) to a quasi patronus, a relationship which gave rise to questions involving the jus applicationis.

The sentence of aquae et ignis, to which Cicero adds (Pro Domo, c30) tecti interdictio (comp. Plut. Marius, c29), was equivalent to the deprivation of the chief necessaries of life, and its effect was to incapacitate a person from exercising the rights of a citizen within the limits which the sentence comprised. Supposing it to be true, that no Roman citizen could in direct terms be deprived of his civitas, it requires but little knowledge of the history of Roman jurisprudence to perceive that a way would readily be discovered of doing that indirectly which could not be done directly; and such, in fact, was the aquae et ignis interdictio. The meaning of the sentence of aquae et ignis interdictio is clear when we consider the symbolical meaning of the aqua et ignis. The bride, on the day of her marriage, was received by her husband with fire and water (Dig. 24 tit. 1 s66), which were symbolical of his taking her under his protection and sustentation. Varro (De Ling. Lat. IV) gives a different explanation of the symbolical meaning of aquae et ignis in the marriage ceremony:— Aquae et ignis (according to the expression of Festus) sunt duo elementa quae humanam vitam maxime continent. The sentence of interdict was either pronounced in a judicium, or it was the subject of a lex. The punishment p517was inflicted for various crimes, as vis publica, peculatus, veneficium, &c. The Lex Julia de vi publica et privata applied, among other cases, to any person qui receperit, celaverit, tenuerit, the interdicted person (Paulus, Sent. Recept. ed. Schulting); and there was a clause to this effect in the lex of Clodius, by which Cicero was banished.

The sentence of the interdict, which in the time of Antonines was accompanied with the loss of citizenship (Gaius, I.90), could hardly have had any other effect in the time of Cicero. It may be true that exsilium, that is, the change of solum, or ground, was not in direct terms included in the sentence of aquae et ignis interdictio: the person might stay if he liked, and submit to the penalty of being an outcast, and being incapacitated from doing any legal act. Indeed, it is not easy to conceive that banishment can exist in any state, except such state has distant possessions of its own to which the offender can be sent. Thus banishment as a penalty did not exist in the old English law. When isopolitical relations existed between Rome and another state, exsilium might be the privilege of an offender. Cicero might then truly say that exsilium was not a punishment, but a mode of evading punishment (Pro Caecina); and this is quite consistent with the interdict being a punishment, and having for its object the exsilium.

According to Niebuhr, the interdict was intended to prevent a person, who had become an exsul, from returning to Rome and resuming his citizenship, and the interdict was taken off when an exsul was recalled. Further, Niebuhr asserts, that they who settled in an unprivileged place (one that was not in an isopolitical connection with Rome) needed a decree of the people, declaring that their settlement should operate as a legal exsilium. And this assertion is supported by a single passage in Livy (XXVI.3), from which it appears that it was declared by a plebiscitum, that C. Fabius, by going into exile (exulatum) to Tarquinii, which was a municipium (Pro Caecin. c4), was legally in exile.

Niebuhr asserts that Cicero had not lost the civitas by the interdict; but Cicero (Ad Att. III.23) by implication admits that he had lost his civitas and his ordo, though in the Oratio Pro Domo he denies that he had lost his civitas. And the ground on which he mainly attempted to support his case was, that the lex by which he was interdicted, was in fact no lex, but a proceeding altogether irregular. Cicero was restored by a lex Centuriata (Ad Attic. IV.1).


The Author's Notes:

1 Noodt (Op. Omn. I.58) corrects the extract from Marcianus thus:— "Exsilium duplex est: aut certorum locorum interdictio, ut lata fuga; aut omnium locorum praeter certum locum, ut insulae vinculum," &c.

The passage is evidently corrupt in some editions of the Digest, and the correction of Noodt is supported by good reasons. It seems that Marcian is here speaking of the two kinds of relegatio (compare Ulpian, Dig. 48 tit. 22 s7), and he does not include the exsilium, which was accompanied with the loss of the civitas; for if his definition is intended to casualty all kinds of exsilium, it is manifestly incomplete; and if it includes only relegatio, as it must do from the terms of it, the definition is wrong, inasmuch as there are only two kinds of relegatio. The conclusion is, that the text of Marcianus is either corrupt, or has been altered by the compilers of the Digest.

2 This word appears, by its termination inus, to denote a person who was one of a class, like the word libertinus. The prefix in appears to be the correlative of ex in exsul, and the remaining part quil, is probably related to col in incola and colonus.


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