The general name for Banishment among the Romans in the Imperial period was Exsilium ; and it was a penalty in flicted under the Empire on conviction in a Judicium Publicum, if it was also a Judicium Capitate. A Judicium Publi cum was a trial in which the accused came within the penalties of certain laws (leges), and it was Capitale when the penalties were either death or exsilium. This Ex silium was defined by the Jurists under the Empire to be "aquae et ignis inter dictio," a sentence which deprived a man of two of the chief necessaries of life. (Paulus, Dig. 48, tit. 1. s. 2.) The sen tence was called Capital because it affected the Caput or Status of the condemned, and he lust all civic rights. There was also Exsilium which was not accompanied by civil disabilities, and accordingly was not Capitalis : this was called Relegatio. The person who was rel'gated was either ordered to reside in some particular spot, or he was excluded from residing in par ticular places ; the period of relegation might be definite or indefinite. If the relegatio was perpetual, the sentence might include the loss of part of his property ; but the person who was relegated retained all the privileges of a Roman citizen. The poet Ovid was relegated to Tomi on the Danube : he was not exsul. Deportation, Deportatio in insulam, was a sentence by which a criminal was carried into some small island, sometimes in chains, and always for an indefinite period. A person who was relegated went to his place of exile. The person who was deported lost his citizenship and his property, but he continued to be a free man. It was a consequence of the lass of citizenship that the relation of the patria potestas was thereby dissolved, and accordingly a father who lost his citizenship by Depor tation lost his power over his children ; and the effect was the same if a son was under the penalty, for the son ceased to be a Roman citizen, and consequently ceased to be in his father's power. But marriage was not dissolved either by the Interdictio or Deportatio. (Cod. 5, tit. 16, s. 24 ; tit 17, s. 1.) Interdictio and Deportatio are mentioned as two separate things in the Constitutions just referred to; but in the Institutes (i. fit. 12) Deportatio only is mentioned, and it corresponds to Inter dictio in the passage in Gains (i. 128). Some further remarks will presently be made on this part of the subject.
Under the early Republic Fxcilium was not a punishment: it was, as the name imports, merely a change of soil. A Roman citizen could go to another state, and the citizen of such state could remove to Rome, by virtue of isopolitical rights existing between the two states. This right was called Jus Exsulandi, the Right of Exsilium as applied to the party who availed himself of it, and the Law of Exsilium when it is considered a part of the political system. The condition of the exsul in the state to which he had removed might be various ; but it seems probable that he would acquire citizenship III his new state, though he might not enjoy it in all its fulness (opting° jure). By the act of removing to another state as an eared, he divested himself of his original citizenship. A man who was awaiting his trial might withdraw before trial to another state into Exsilium—a practice which probably grew out of the Jos Exsulandi. Thus Exsilium, though a voluntary act, came to be considered as a punishment, for it was a mode of avoid ing punishment ; but still Banishment, as such, was not a part of the old Roman law. A practice was established under the later republic of effecting a sentence of banishment indirectly by means of the "interdictio more et ignis," or with the addition of the word " tecti." (Cicero, Pro Demo, c. 30.) This sentence was either pronounced in a trial, or it was inflicted by a special lex. In the lex by which this penalty was inflicted on Cicero there was a clause which applied to any person who should give him shelter. This putting of a man under a ban, by excluding him from the main necessaries of life, had for its object to make him go beyond the limits within which he was subjected to the penalty ; for the interdictio was limited to a certain distance from Rome. In Cicero's case the interdictio applied to all places within four hundred miles of Rome (Ad Attic. iii. 4). The inter dictio did not prevent him from staying at Rome, but it was assumed that no man would stay in a place where he was ex cluded from the first necessaries of life. It has been a matter of dispute what was the legal effect of the Interdictio in the time of Cicero : in the period of the Antonines, as appears from Gains, the sentence of Interdictio when pronounced for any crime. pursuant to a penal law (ob aliquid maleficinm ex lege pmnali) was followed by loss of citizenship. The
penal laws were various, such as the Julia Majestatis, Julie de Adulteriis, and others. In the Oration Pro Demo, the writer labours to prove that Cicero had not lost the civitas by the Iuterdictio, but the tenor of the argument rather implies that the loss of civitas was a legal effect of the interdictio, and that there were par ticular reasons why it was not so in the case of Cicero. The whole subject how ever is handled in such a one-sided manner that no safe conclusion can be derived from this oration. It appears from Cicero's owu letters that he considered it necessary for his safety to withdraw from Rome before the bill (rogatio) was passed by which he was put under the Interdict. He was restored by a lex passed at the Comitia Centuriata. (Ad Attic. iv. L) It ap pears from another letter (Ad Attic. iii. 23), that he had lost his civitas by the lex which inflicted the penalty of the In terdictio, but the loss of civitas may have been effected by a special clause in the Lex.
The rules as to Exile tinder the legisla tion of Justinian are contained in the Digest, 48, tit. 22. The use of the word Deporto as applied to criminals who suffered the punishment of Deportatio, occurs in Tacitus (Amid. iv. 13; "iv. 45). It may be inferred however, from an expression in Terence (Phormio, v. 8, 85), that the punishment of Deportatio existed under the Republic. When Ulpian observes (Dig. 48, tit. 13, s. 3) that " the penalty of Peculation (peculates) comprised the Interdictio, in place of which Deportatio has now succeeded," he probably means not that the Deportatio was exactly equivalent to the Interdictio, and that the name merely was changed, but that the Interdictio was disused in the case of Peculatus and a somewhat severer punishment took its place. Under the earlier Emperors, the punishment of De portatio and Interdictio both subsisted, as we see by the instances already referred to, and in the case of C. Silanns, Pro consul of Asia, who was convicted of Re petundte and relegated to Cythera. (Tacitus, Annal. iii. 68, &c.) Some of the later Jurists seem in fact to use Exsilium as a general term for banish ment, of which the two species are Rele gatio and Deportatio. Relegatio again is divided into two species,—the Relegatio to a particular island, and the Relegatio which excluded a person from places which were specially named, hut assigned no particular island as the abode of the Re legatus. The term Interdictio went out of use as the name of a special punishment, and Deportatio took its place, perhaps with some of the additional penalties at tached to the notion of Deporto. In fact the verb Interdict is used by the later jurists to express trth the forms of Relegatio, that ander which a man was excluded from particular places (omnium locorum interdictio), and that by which he was excluded from all places except one (omnium locoram punter cerium locum), which was in effect to confine him to the place that was named. (Man. cianus, Dig. 48, tit. 22, s. 5, as corrected by Noodt, Opera Omnia, i. 58.) Some times the word Exsilium is used in the Digest (48, tit. 19, a. 38) to express the severer punishment of banishment, as opposed to the lighter punishment Rele gatio. Practically then there were two kinds of banishment under the later empire, expressed by the names Rele gatio and Deportatio, each of which had a distinct meaning, while the term Ex silium was used rather loosely.
The condemnation of criminals to work in the mines was a punishment in the na ture of banishment, but still more severe. Thus, if a man seduced a maid who was of years too tender for cohabitation, he was sent to the mines, if he was a man of low condition ; but only relegated, if he was of better condition. The same difference in punishment between people of low con dition (humiliores) and those of better condition (honestiores) was observed in other cases ; and it may be remarked that the like distinction in inflicting punishments is not unknown in this country in summary convictions.
Deportation is the third of the six " peines afflictives et infamantes" of the French Code Pad. The punishment of deportation consists in the offender being transported out of the continental terri tory of France, there to remain for life; and if he returns, hard labour for life is added to his sentence. The sentence of deportation carries with it loss of all civil rights ; though the government is em powered to mitigate this part of the penalty either wholly or in part. (Law of September, 1835, § 18, Code Patti.) Banishment (bannissement) is classed as one of the two " peines infamantes," the other being civil degradation. The offender is transported by order of the government out of the territory of the kingdom for at least five and not more than ten years.