Servi poenae: Were Roman emperors free to determine the fate of those condemned to the arena?

by Mary Harrsch © 2024

On November 24, 2024, once again we will be regaled with scenes of Roman spectacle as Gladiator II makes it way to cinemas around the world. Hollywood productions, like this, portraying emperors using a seemingly spontaneous thumb gesture to seal a gladiator's fate in response to an amphitheater packed with howling spectators baying for blood or clementia, has reinforced the widely-held assumption that Rome's princeps could wield his power of granting life or death with little or no other input. But, Aglaia McClintock, Associate Professor at the University of Sanno in Benevento, Italy points out this could not be further from the reality of governing a Roman world defined by complex laws in which the fate of individuals often involved consideration of their position within the social hierarchy and the circumstances leading to their participation in the spectacle.

A Murmillo Gladiator Fights a Barbary Lion in the colosseum in Rome during a condemnation of beasts. Oil painting by Studio artist of Firmin Didot courtesy of Wikimedia Commons contributor Collectionsbalsorano.

"The arena was a microcosm populated by people of every class and condition: professionals, citizens, freedmen, slaves, imperial slaves and obviously convicts who before the criminal verdict could have been either slaves or citizens. Even for ancient authors it was not always easy to determine the legal status of individuals who fought as gladiators, harenarii and bestiarii...Many individuals worked or performed in the arena voluntarily retaining their citizenship, others were slaves of the emperor, of the impresario, or of private individuals involved in the games. Others still had been sold to the ludus (understood here as a centre for recruiting and training) or to a lanista from a dominus as a punishment or just on a whim. Sources speak of owners who threw their slaves in the arena so they could brag of their servants’ abilities or attractiveness. Finally, many (both citizens and slaves) were in the amphitheatre as convicted criminals, sent there by the public authority. The emperors had to face the confusion that could arise and make clear that although the arena was considered a polluted place where blood was shed, the voluntary workers retained their freedom and citizenship." Aglaia McClintock, Servi poenae: What Did it Mean to be 'Condemned to Slavery'

 Roman gladiator helmet from Herculaneum 1st century CE. Photographed by Mary Harrsch.

Of those who were slaves, some may have been prisoners of war, found guilty of a capital offense, or simply victims of a slave owner's capriciousness. To minimize the latter group, emperors as far back as Augustus issued rescripts limiting the arbitrariness of a slave owner's punitive powers. The lex Petronia, thought to be issued between 19 CE and 61 CE is one example.

"...placed in the Julio-Claudian age [it] forbade owners to send their slaves ad bestias on a whim, sanctioning not only the sellers but also buyers who did not comply, but granting the application of the penalty if the owner’s request to the magistrate was substantiated." Aglaia McClintock, Servi poenae: What Did it Mean to be 'Condemned to Slavery'

However, subsequent imperial rescripts made it clear that a dominus continued to have the right to send slaves directly to the arena without state approval if they had been caught red-handed committing a crime.

Statuette of a Samnite-equipped gladiator photographed at Musée de l'Arles et de la Provence antiques by Wikimedia Commons contributor Michel Wal

As prisoners of war, some participants in the games could no longer claim any social status since it was essentially dissolved at the time of their capture. Their ultimate fate depended on several factors. High-ranking officers or nobility from the defeated enemy were often held for ransom. If Rome needed skilled labor, however, POWs with valuable skills like carpentry or metalworking were often enslaved and put to work for the state either in military service or on public works projects. But, during times of total war or vengeance against a particular enemy, POWs that were not brutally executed were forced to fight to the death in gladiatorial games.

Overall, Roman society viewed POWs as property of the Roman state, not people. The Roman general credited with the victory in which they were captured determined whether the individuals were held for ransom, executed, or designated to be sold into slavery. The appropriate quaestor responsible for managing finances and logistics within a province or military campaign would organize an auction to sell the POWs and deliver the proceeds to the Roman treasury. Until their sale, POWs did not "belong" to either the victorious general or the emperor but were regarded as spoils of war.

During the Roman Republic, victorious generals, especially those with strong political influence, often had considerable autonomy in deciding how much to reward their troops from the spoils of war (booty). This included deciding on the payment of donatives, which were cash bonuses distributed to soldiers. The Senate might intervene if they felt a general was distributing excessive donatives that could strain the treasury or weaken their own authority.

Ornate Roman gladiator helmet from the gladiator barracks in Pompeii with relief including an eagle and Priapus photographed by Mary Harrsch.

During the Imperial Period, however, the Senate's power gradually diminished. Emperors, holding ultimate military authority, controlled the treasury and authorized the distribution of donatives, partially or fully funded by the sale of POWs, at their discretion. Emperors who valued the Senate's support, though, might seek their approval (or at least avoid their disapproval) for major donatives.

If few captives were taken on campaign so any donatives would have had to have been either paid directly by the commanding general (Julius Caesar was actually criticized by his opponents for doing this during the late Republic) or funds in the imperial treasury, the emperor usually had the final say over these types of ddistributions These decisions were further complicated by political tension or instability and whether or not either generals or emperor needed to restore the loyalty of their troops or solidify their own political power. If the treasury was depleted, there was more pressure to sell captives to slave traders for ready cash rather than divert them to auxiliary units or send them to state-owned mining operations. If these men appeared in the arena, by that time they had become the property of possibly elite slave owners, so, considering the ancestral traditions of Mos Maiorum, granting their freedom or ordering their death would need to be negotiated with their current owners.

But with audiences as large as 20,000 to 50,000 spectators, emperors overseeing a spectacle needed to be able to display their clementia or be seen fulfilling justice as pater patriae of the Roman people.

"...during the first principate, the punitive power of the princeps and the dominus coexisted on slaves. In this respect the leges libitinariae from Campania in force in Pozzuoli and Cuma are remarkable evidence of this situation. They are datable to Augustan age or slightly later, and are so called from the name of the goddess Libitina who in the ancient Roman world oversaw everything that had to do with death... The opposition between coexisting punitive powers manifested itself during the ludi, when the princeps, on his own initiative or to meet the favour of the audience, wished to free a slave who was in the arena because he had been sent there on a whim or as a punishment by a private dominus. The owner’s power, including the possibility to free his slaves even after he had condemned them to die, could potentially undermine the stature of the princeps. " - Aglaia McClintock, Servi poenae: What Did it Mean to be 'Condemned to Slavery'

Ornate shin guard depicting Silenus and a stork battling a serpent found in the gladiator barracks of Pompeii photographed by Mary Harrsch

This was further complicated by the fact that public executions took place during religious festivals. Nemesis, the goddess of retribution, a poena in a technical sense, was therefore closely tied to the imperial ideology of dramatic displays of the punishments for those who opposed the imperial order. The blood sacrifice is thought by scholars to symbolize the highest expression of "Romanitas" in every province of the empire.

It is not surprising that Augustus, despite his repeated protestations that he was merely a priinceps, first among equals, moved to demonstrate his ultimate power in such public venues as the games by placing the fate of slaves, especially those condemned to the arena, firmly in his control.

"Augustus issued regulation to control manumissions occurred in similar conditions with the lex Aelia Sentia20 (4 CE): slaves who had been put in chains by their masters as a punishment, who had been branded with a hot iron, who had been found guilty as a result of torture, or who had been destined to fight in the arena with a sword or against wild beasts, did not become Roman citizens if set free by their master or someone else, but acquired only a condition compared to that of the peregrini dediticii." - Aglaia McClintock, Servi poenae: What Did it Mean to be 'Condemned to Slavery'

Crest of a murmillo's helmet found in the gladiator barracks of Pompeii courtesy of Wikimedia Commons contributor Carlo Raso

By the third century, emperor Antoninus Pius issued a number of rescripts defining the power of private owners and those of the ruling princeps over slaves sentenced to death in the arena. He intentionally distinguished these convicts from the servi Caesaris (who enjoyed special rights and participated in the administration of the res publica) and created a new and specific legal category of persons making them a slave of the punishment not of the emperor or prior dominus

"The condemned to the worst kind of torments lose their citizenship and freedom and this happens immediately; therefore this new “condition” (hic casus) precedes their death, sometimes for a long time, as happens in the case of the persons condemned to the beasts. Often they are kept alive after the condemnation, so that they can be tortured to provide information against others." - D. 48.19.29 (Gaius, Lex Julia et Papia, book 1):

"On one hand he wanted to limit the owner’s power of life and death over slaves, on the other he wanted to gain full control of the power to punish and to set free individuals living in the empire, whether they be citizens, foreigners or slaves. Only the Emperor could have the last word on the servi poenae. And even if imperial rhetoric despised criminals it is noteworthy that the emperor had an economic interest for convicts which he exploited in mines and in the arena...In the age of the Antonines, jurists created a form of subjugation that did not even ideally aim to progress toward the status of the free. They excluded once and for all from the legal system those who had been found guilty in a formal trial. Free persons were branded on their faces, were deprived of freedom and citizenship, lost their property (which was seized by the imperial treasury), and their marriages were dissolved. They could not manumit their slaves, nor could they make a will or be written into one, or receive anything through intestate succession. Slaves lost the hope of being freed by a master, since the condemnation made them masterless. At least formally, all servi poenae were masterless because as convicts they could not hope to regain freedom (except if their sentence were overturned and they were restored to their previous condition). This is the great difference with regular slavery. Slavery inflicted during the republic meant becoming slave of a private individual, slavery inflicted from the reign of Antoninus Pius onwards meant becoming a criminal convict, a death row inmate waiting to die." - - Aglaia McClintock, Servi poenae: What Did it Mean to be 'Condemned to Slavery'

Provocator helmet from the Pompeii gladiator barracks courtesy of Wikimedia Commons contributor Carlo Raso

I know many of us had wished the general of Ridley Scott's original "Gladiator", had not died at the end of the film. But, in the portrayed time period after the reign of Antoninus Pius, Maxiumus, as one of the servi poenae, would have been doomed to a life without citizenship or legal rights, and probably would have been executed anyway since he would still have been viewed ultimately as a regicide despite the provocations he endured.

References:

McClintock, Aglaia. (2023). Servi poenae: What Did It Mean to Be ‘Condemned to Slavery’?. 10.1515/9783110987195-007. The Position of Roman Slaves: Social Realities and Legal Differences.

https://www.academia.edu/.../Servi_poenae_What_did_it...

Note: Aglaia McClintock is associate professor of Roman Law at the University of Sannio. She is Life Member of Clare Hall, Cambridge University.

D. 49.14.12 (Callistratus, Judicial Examinations, book 6)

D. 48.19.29 (Gaius, Lex Julia et Papia, book 1)

Kathleen M. Coleman, “Fatal Charades: Roman Executions Staged as Mythological Enactments,” Journal of Roman Studies 80 (1990): 44–73, 72.

Kyle, Spectacles of Death (n. 12): 77, 103 n. 6.

Cf. Wiedemann, Emperors and Gladiators (n. 14): 78.

Cf. Hopkins, Death and Renewal (n. 10): 10;

Michael B. Hornum, Nemesis, the Roman State and the Games (Leiden/New York/Cologne: Brill, 1993): 7