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Legal and social status

"He vows to endure to be burned, to be bound, to be beaten, and to be killed by the sword." The gladiator's oath as cited by Petronius (Satyricon, 117).

Modern customs and institutions offer few useful parallels to the legal and social context of the gladiatoria munera. In Roman law, anyone condemned to the arena or the gladiator schools (damnati ad ludum) was a servus poenae (slave of the penalty), and was considered to be under sentence of death unless manumitted. A rescript of Hadrian reminded magistrates that "those sentenced to the sword" (execution) should be despatched immediately "or at least within the year", and those sentenced to the ludi should not be discharged before five years, or three years if granted manumission. Only slaves found guilty of specific offences could be sentenced to the arena; however, citizens found guilty of particular offenses could be stripped of citizenship, formally enslaved, then sentenced; and slaves, once freed, could be legally reverted to slavery for certain offences. Arena punishment could be given for banditry, theft and arson, and for treasons such as rebellion, census evasion to avoid paying due taxes and refusal to swear lawful oaths.

Offenders seen as particularly obnoxious to the state (noxii) received the most humiliating punishments. By the 1st century BC, noxii were being condemned to the beasts (damnati ad bestias) in the arena, with almost no chance of survival, or were made to kill each other. From the early Imperial era, some were forced to participate in humiliating and novel forms of mythological or historical enactment, culminating in their execution. Those judged less harshly might be condemned ad ludum venatorium or ad gladiatorium —combat with animals or gladiators—and armed as thought appropriate. These damnati at least might put on a good show and retrieve some respect and, very rarely, survive to fight another day. Some may even have become "proper" gladiators.

Among the most admired and skilled auctorati were those who, having been granted manumission, volunteered to fight in the arena. Some of these highly trained and experienced specialists may have had no other practical choice open to them. Their legal status—slave or free—is uncertain. Under Roman law, a freed gladiator could not "offer such services after manumission, because they cannot be performed without endangering life." All contracted volunteers, including those of equestrian and senatorial class, were legally enslaved by their auctoratio because it involved their potentially lethal submission to a master. All arenarii (those who appeared in the arena) were " infames by reputation", a form of social dishonour which excluded them from most of the advantages and rights of citizenship. Payment for such appearances compounded their infamia. The legal and social status of even the most popular and wealthy auctorati was thus marginal at best. They could not vote, plead in court nor leave a will; and unless they were manumitted, their lives and property belonged to their masters. Nevertheless, there is evidence of informal if not entirely lawful practices to the contrary. Some "unfree" gladiators bequeathed money and personal property to wives and children, possibly via a sympathetic owner or familia; some had their own slaves and gave them their freedom. One gladiator was even granted "citizenship" to several Greek cities of the Eastern Roman world.

Caesar's munus of 46 BC included at least one equestrian, son of a Praetor, and two volunteers of possible senatorial rank. Augustus, who enjoyed watching the games, forbade the participation of senators, equestrians and their descendants as fighters or arenarii, but in 11 AD he bent his own rules and allowed equestrians to volunteer because "the prohibition was no use". Under Tiberius, the Larinum decree (19 AD) reiterated Augustus' original prohibitions. Thereafter, Caligula flouted them and Claudius strengthened them. Nero and Commodus ignored them. Even after the adoption of Christianity as Rome's official religion, legislation forbade the involvement of Rome's upper social classes in the games, though not the games themselves. Throughout Rome's history, some volunteers were prepared to risk loss of status or reputation by appearing in the arena, whether for payment, glory or, as in one recorded case, to revenge an affront to their personal honour. In one extraordinary episode, an aristocratic descendant of the Gracchi, already infamous for his marriage, as a bride, to a male horn player, appeared in what may have been a non-lethal or farcical match. His motives are unknown, but his voluntary and "shameless" arena appearance combined the "womanly attire" of a lowly retiarius tunicatus, adorned with golden ribbons, with the apex headdress that marked him out as a priest of Mars. In Juvenal's account, he seems to have relished the scandalous self-display, applause and the disgrace he inflicted on his more sturdy opponent by repeatedly skipping away from the confrontation.