.
EXSI´LIUM (φυγή), banishment.
Greek
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 (οὐκ ἐθέλων, Il. 23.88). In other instances mentioned in Homer (Hom. Il. 2.665, 13.695, 15.335, 16.572; Od. 15.224, 23.119) we do not know whether the homicide was accidental or not; the slaying of Molycrus by Hyettus (Hesiod. fr. 148 = Paus. 9.36, 6) would, according to later views, have been δίκαιος φόνος. 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 (Tac. Germ. 21),1 which was made to the relatives or nearest connexions of the slain (Il. 9.630). In the trial scene in Il. 18.497 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 (Anc. Law, p. 377; cf. Gladstone, Homeric Studies, 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. Rechtswissensch. ii. p. 433 ff.; cf. 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 or ἀκούσιος. Secondly, in the two talents of gold which lie in the midst, P. M. Laurence (Journ. of Phil. viii. p. 125 f.) sees the ποινὴ ἀνδρὸς ἀποφθιμένου; 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 Hell. Stud. x. p. 136). Schömann (on Isae. p. 240, and Antiq. j. p. Gr. p. 73, n. 10) looks upon them as quasi quaedam παρακαταβολή, 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 ἐνέποντες used of the βασιλεῖς in Hesiod. Op. et D. 258 supports 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. Aristocr. p. 644.72; c. Mid. p. 528.43, and lex in [Dem.] c. Macart. p. 1069.57 = C. I. A. i. No. 61; αἴδεσις); his possessions were ἐπίτιμα, i. e. not confiscated (Dem. c. Aristocr. p. 634.45; cf. Theophr. π. νόμων, fr. 14, in Journ. of Phil. vi. p. 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 ἀπενιαυτισμός, etc.; cf. Plat. Legg. p. 865 E), but Philippi (Areopag u. Eph. p. 117 ff.) brings forward strong reasons against this opinion, and suggests a longer term than one year (cf. Antiph. Tetral. ii. β, § 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 ἐν Φρεαττοῖ, in the Peiraeus (Dem. c. Aristocr. p. 645.77, and Paus. 1.28, 12; cf. Harp. s. v.).
Banishment for life with confiscation was inflicted on persons who rooted up the sacred olives at Athens (Lys. pro sacr. olea exsc. § 41), and on those convicted of τραῦμα ἐκ προνοίας, or wounding with intent to kill, even though death might not ensue (Lys. c. Simon. § 38, de vuln. ex industria, § § 13, 18; Dem. c. Boeot. ii. p. 1018.32 [TRAUMATOS EK PRONOIAS GRAPHE]; 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. Seguer. 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 Ἀθηναῖον ἀποκτείνη, Dem. c. Aristocr. p. 650.89, and C. I. A. ii. No. 115; Att. Process, 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 (Hermath. vii. p. 87).
Banishment might also be proposed as penalty by the accuser in a case of ἀσέβεια, Plat. Apol. p. 373 C (cf. the punishment of the Delians, Boeckh, Sthh.3 ii. p. 92 f., and of Protagoras, D. L. 9.152; Cic. de. Nat. Deor. 1.6. 3), or a decree might direct the exile of a person: see C. I. A. ii. No. 17, σημιούντων δὲ αὐτὸν θανάτῳ ἢ φυγῇ οὗπερ Ἀθηναῖοι καὶ οἱ σύμμαχοι κρατοῦσιν (cf. C. I. G. No. 2008); thus on the motion of Themistocles (Plut. Them. 6) Arthmius of Zeleia was banished from Athens (Dem. in Phil. iii. p. 121.42; de Fals. Leg. p. 428.271; Aeschin. c. Ctes. § 258; Dinarch. c. Dem. § § 24, 25). Cf. Plat. Gorg. p. 468 B ff. and Schol. Aristoph. Frogs 546; Arrian, Exp. Alex. 1.10, 6.
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. col. 18) 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 πόλεως, 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. Aristocr. 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, ἐπὶ φόνῳ ἢ σφαγαῖσιν ἢ ἐπὶ τυραννίσι cf. Dobree, Adv. i. p. 181, φόνος a private murder, σφαγή̀ a massacre, sc. in motu civili); 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 [sc. ὀνόματα] ἐν στήλαις γέγραπται τῶν μὴ ἐνθάδε μεινάντων), and also the classes of exiles which were exempted by Solon's law (Andoc. de Myst. § § 77, 78; Droysen, de Demoph., Patrocl., Tisam. populisc.; probably the same restrictions were made when during the Persian wars an act of amnesty was passed, see Jebb, Att. Or. 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. de Myst. § 80; Xen. [p. 1.818]Hell. 2.2, 20; Plut. Lys. 14; 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, 18.8). 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. p. 846 D; Plut. Dem. 27, etc.). On the decree of Oenobius, by which Thucydides is said to have been recalled (Paus. 1.23, 9; cf. Plin. Nat. 7. § § 30, 110), and on the amnesty after the Sicilian expedition (πλὴν τῶν Πεισιστρατιδῶν, Marcell. Vit. Thucyd. 32 f.), see Gilbert, Philol. 1879, p. 251 ff., and Stahl, Rhem. M. 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. § 68), 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: cf. 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, 10); at Athens their title would have been absolute (Dem. c. Timocr. p. 717.54; c. Pantaen. p. 972.19).
Under (φυγή, or banishment, as a general term, is comprehended Ostracism (ὀστρακισμός). The difference between the two is stated by the Schol. Aristoph. Wasps 941 (cf. Suid. s. v.) to be: “φυγὴ (i. e. ἐειφυγία, banishment for 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. s. v. 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. Athen. (Bergk, Rhein. M. 1881, pp. 87-115), one relates to ostracism; according to Bergk's reading, it confirms the tradition (Aelian, Ael. VH 13, 24) 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. Pol. 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. class. Philol., 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 (Lex. Cant. s. v. κυρία ἐκκλησία); 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., Blass, Hermes, 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. p. 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, Meineke, fragm. Com. iv. p. 638), with the name of the person written on it whom he wished to be ostracised (κάτω στρέφοντες τὴν ἐπιγραφήν). 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. Timocr. p. 719.59; [Dem.] c. Steph. ii. p. 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. p. 81 n.), but the former (Plut. Arist. 7） seems the more probable (Lugebil, p. 144 if.; Fraenkel, Att. Geschworenger. p. 92 n.; cf. Thuc. 8.72). The period of banishment was ten years ([Andoc.] c. Alcib. § 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. Arist. 1), and Pericles did the same with regard to Cimon (Plut. Per. 10; Cim. 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. 185).
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. 14. etc.); Alcibiades and Megacles, the paternal and maternal grandfathers of the distinguished Alcibiades ([Andoc.] c. Alcib. § 34; Lys. c. Alcib. 1.39); 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 Μενωνίδαι), 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 (8.73) 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. fr. 48, Didot, διὰ φαυλότητα, 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 Lex. Cant. s. v. μετὰ τοῦτον [sc. Ὑπέρβολον] δὲ ιξατελύθη τὸ ἔθος cf. Theoph. π. ν. v. fr. 26, Journ. of Phil. 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 (Aristoph. Pac. 1319; Schol. Acharn. 846), and leader of the democratic party after Cleon's death (Aristoph. Pac. 681; cf. Ran. 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. 7); according to Theophrastus, the opposition at first and the coalition afterwards was not between Nicias and Alcibiades, but between Phaeax and Alcibiades (Nic. 11); and in Alcib. 13 Plutarch mixes up these two versions (cf. [Andoc.] c. Alcib.). Various attempts have been made to reconcile these accounts: thus Zurborg (Hermes, 1877, 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. Mahaffy (Hermath. 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 παρανόμων, “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.
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 πέταλα, 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 (11.55-87) 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] [H.H]
(Appendix). 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. v. Ἵππαρχος). 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 εἶναι, 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 καθάπαξ, 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. 8.73).” These facts, and the statement of Philochorus in Lex. Rhet. Cantabr. s. v. ὀστρακισμοῦ τρόπος: μὴ ἐπιβαίνοντα ἐντὸς Γεραίστου τοῦ εὐβοίας ἀκρωτηρίου, suggest the reading ἐκτὸς instead of ἐντὸς in the Ἀθην. πολ.
2. Roman
Exsilium, according to Paulus in Dig. 48, 1, 2, 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, but relegatio. 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 Caec. 34) that no Roman was ever deprived of his civitas or his freedom by a lex; and in the speech pro Domo (16, 17, 29) he puts the same thing in a more guarded way by saying, that no privilegium, or lex directed against an individual, could be enacted so as to affect the caput of a 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 (pro Balbo, 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 Caecina it is one of Cicero's objects to prove that his client had the rights of a civis, and in 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 (ad Att. 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 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. 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, without having been first condemned in a judicium (100.17). At any rate, he was restored by a lex centuriata (ad Att. 4.1). Niebuhr asserts that Cicero's interdiction from fire and water did not necessarily deprive him of the civitas: but in ad Att. 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 civitas. 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 betake himself.
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, 2.35, 3.13, 58, 5.32; 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: cf. 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 exsilium; 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. 26.3, 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 character (Liv. 5.32, 46), 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 interdictio (Liv. 25.4), but to aquae et ignis Cicero adds tecti (pro Domo, 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, purus) 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. 24, 1, 66), that 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. Rechts, 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, 38.17, 18). 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, 68, 69; 4.13, 21, 30; 6.30). This and the old interdiction subsisted side by side as punishments of equal severity (Dig. 28, 1, 8, 1 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, 13, 3 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, 1, 4; 48, 22, 6, 1; 48, 19, 2, 1). Like aquae et ignis interdictio, deportation carried with it loss of civitas; they were capitales poenae because they affected the caput of the civis. The condemned man lost his patria potestas 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, 22, 14, 1), 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,” Dig. 48, 22, 15, pr.
Relegatio, which as contrasted with exsilium was known under the Republic (Liv. 3.10, [p. 1.821]4.4, 40.41; Cic. pro P. Sextio, 12)--and instances of which occur in Sueton. Aug. 16, Tib. 50; Tac. Ann. 3.17, 68; 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, 22, 7, 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. 5.11), 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 relegatio as well as deportatio and aquae et ignis interdictio. Thus Marcianus says in Dig. 48, 22, 5, “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 (Sent. rec. 5, 17, 3) speaks of deportatio as one of the punishments for mediocria delicta, while among the minimae poenae are relegatio and exsilium.
[J.B.M]
1 Cf. Grimm, Deutsche Rechtsalterth. p. 661; Thorpe, Anc. Laws and Inst. of England, i. p. 187 f.; Roth (Zeitschr. d. D. Morgenl. Gesellsch. 1887, p. 672 ff.), Wergeld im Veda.
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