Mental Disease and Imputability: intervalla insaniae and Regime of Custody. From D. 1.18.14 (Macer De iudiciis publicis libri XIV) to the Contemporary Debate

The Macer's passage preserved in D. 1.18.14 (together with Ulpian's D. 1.18.13.1 and Modestinus' D. 48.9.9.2) faces the matter of the imputability of a subject author of a crime, but unfit to plead because of mental disease. In our fragment the principle which denied the imputability in such a case, already existing in the Roman legal system, is restated in a rescript sent by Marcus Aurelius and the son Commodus to the functionary Scapula Tertullus concerning a certain Aelius Priscus, murderer of his mother. The emperors ask to investigate the possible presence of simulatio dementiae and mainly intervalla insaniae prescribing the measure of the detention, if necessary also in prison. The fact forces us to reflect about the high level of dogmatic speculation of the Severan jurists. In more criminological sense, instead, the main problem is represented by the social value given to a homicide inside the family and in particular toward a parent, a crime so atrocious to be perceived by the public opinion, now as much as in the past, “unnatural” or better even “against-natur”, on the basis of a kind of self-protection mechanism.