which a right of appeal was guaranteed to Roman citizens. All the laws which treat of the right of appeal speak of death, of scourging and of fine, as the penalties which are appealed against. The Senate then, or rather the consul acting under the advice of the Senate, is justified (so we must suppose Cæsar to maintain) in punishing dangerous enemies of the State so long as the punishment inflicted is not one forbidden totidem verbis by the statute. Thus Cæsar's motion may be[1] held to "keep on the windy side of the law," though it seems a strange subtlety to say that a court, not qualified to pronounce any "capital" sentence (which in this age commonly meant a sentence of death to be avoided by voluntary exile and self-deprivation of citizenship), should nevertheless have the right to inflict a punishment infinitely more severe.
Whatever the reasonableness of Cæsar's proposal, his speech produced a strong effect, and many of the senators of prætorian rank signified their assent. Silanus the consul-elect took alarm, and explained
- ↑ I assume that the "penal servitude" of later Roman law (by which a man undoubtedly lost his "caput") had not yet been invented, and that the "citizenship" and" liberty" of the prisoners would be technically intact, just as they were in the case of the insolvent debtor who was handed over to work in chains for his creditor (see Ortolan's Institutes of Justinian, iii., § 2027, n.). In this case the sentence would not be technically a "capital" one but might be regarded as detention indefinitely prolonged. Mommsen (Staats-Recht, iii., p. 1250, n. 1) holds on the contrary that perpetual imprisonment is really a death-sentence indefinitely suspended by way of grace. If however this is what Cæsar proposed, how could he with any plausibility afterwards declare his opinion (see below, p. 230), that the death-sentence had been illegal?
