Roman law provisions on desertion had features that were totally different from the common Roman criminal law.
While watching –once again—the classic and broadly acclaimed movie Ben-Hur, I thought about the legal consequences of deserting from the Roman Army for Roman conscripts and soldiers. Desertion was a serious crime under Roman military law, as it meant the violation of a sacred military oath of allegiance that was given to military commanders and to fellow comrades in arms (C. E. Brand, Roman Military Law, at 97). More than two millennia later desertion remains a grave military crime in most jurisdictions. In this context, I think that a review of the main aspects of the crime of desertion according to Roman law might be useful to understand more about the topic today.
The Gravity of the Crime of Desertion in Roman Law
The army was the foundation of the Roman Republic, and later the Empire’s strength and dominion over the existing world. Surrounded by enemies, the existence of Rome itself depended on its army. Desertion (desertio) from the Roman Army could also have catastrophic consequences on the morale of the other soldiers, and if the army suffered, then Rome’s power and dominion would as well. Consequently, as the social, political, and economic success of Rome depended largely on its military successes, a military career was a badge of honor for any Roman citizen. Desertion was considered a serious offense and severely punished (“in military life desertion may result in the loss of a whole city,” L.V. Postma, Roman Military Law, 85 S. African L.J. 65 (1968), at 66).
The Power to Impose Military Penalties
The Roman Emperor was the head of the Roman Army. In such capacity, he exercised absolute power (imperium). The Emperor’s supreme military power was further exercised within the ranks through the concept of imperium militiae (military power), that included the “power to collect an army, to appoint officers, and the right to administer justice to the soldiers.” (Id. at 65). This meant that Roman military officers were empowered with imperium militia and had the authority to punish the crime of desertion. (Vincenzo Arangio-Ruiz, Sul reato di diserzione in diritto romano [About the Crime of Desertion in Roman Law], in Rariora, 1946 at 274). (Rome established military garrisons throughout its territories which were staffed at all times and desertion from a garrison would always be easily detected). Imperium militiae included the power of military commanders to punish conducts which in their opinion were “prejudicial to military discipline.” (L.V. Postma, supra at 66).
The Penalties Associated with the Crime of Desertion
Military penalties in Roman law for lesser offenses included: being hit by the centurion –that is, a Roman commander of 100 legionaries—with his staff (called castigatio or animadversio fustium); reduction in pay, fines or deductions from the pay allowance (called pecuniaria multa); imposition of additional duties (munerum indictio); relegation to inferior service or duties (called militiae mutatio); reduction in rank (called gradus deiectio); and dishonorable discharge (called ignominiosa missio) (Arangio-Ruiz, supra at 103-106).
As a military crime, desertion could be classified as positive or negative desertion –that is, emansio and desertio, respectively. The emansor was the soldier who voluntarily deserted but was not subsequently caught, while the desertor was the soldier who also voluntarily left the Roman Army but was afterwards arrested (Id. at 279).
Roman law defined a “deserter” as he who takes arms against the state or in any other way takes a belligerent stance against the prince, that is, the Roman Emperor. A “transfuga” was a deserter who joined the enemy lines. (Id. at 275-6). Soldiers who were captured trying to join the enemy were also punished. (Id. at 278). Those who aided and abetted desertors (called receptarores) were punished as well. (Id. at 279).
Desertion was punished with death (Id. at 284). Resisting arrest for desertion while using arms was an aggravating circumstance. (Id. at 286). The abandonment of a guarding post was considered as an aggravating case of emansio. (Id. at 287). For cases of long-protracted desertion —that is, where it is not possible to assess the desire to return, which is proper of the emansor— Roman law applied deportation instead of death, a penalty that otherwise was exclusively reserved for pagans and involved the deprivation of Roman citizenship. (Id. at 287).
In addition to the military penalties, civil liability was imposed on convicted deserters which required them to return monies and other monetary benefits (in integrum restitutio) received while having served in the Roman Army (Id. at 289).
Roman law provisions on desertion— as was the case with all provisions related to Roman military law on crime and punishments— have features that are totally different from the common Roman criminal law. (Id. at 273). The punishment was imposed by the military judge summarily and was based on the field commander’s own observations. No provision was made for the swearing in of witnesses. Only in certain cases could the accused defend himself. (L.V. Postma, supra at 66).