Was there a ‘Doctrine of Manifest Guilt’ in the Roman criminal law?

Abstract

R.A. Bauman in his bookImpietas in Principemtakes at its face value the abolition ofmaiestasby certain emperors at the beginning of their reigns: he believes that the whole law of treason was suspended during those periods. Since executions and other criminal punishments are recorded, by Tacitus and other writers, as occurring during those same periods, Bauman is obliged to look elsewhere than tomaiestasfor the legal justification of what occurred. He assigns some cases to the workings of adomesticum consilium, and explains some as resting on accusations of magic and some onparricidium; but in four or five cases, particularly that of Claudius' wife Messallina, he asserts that the punishment was based on a ‘Doctrine of Manifest Guilt’ supposed to exist in Roman criminal law, whereby in the case of the criminal caughtin flagrante delictono trial was necessary and the public authority could proceed directly to inflict the penalty. Two things are to be stressed about Bauman's contention: first, he is talking about the criminal, not the civil, law; secondly, and much more importantly, he is talking not about a merelyde factoproceeding, a mere exercise of naked power, but about a ‘Doctrine’, that is to say, a legally accepted rule capable of acting as a justification for the use of the power.