CASE 95: An Adulterous Daughter

D. 48.5.21 (Papinianus, libro primo de Adulteriis)

Patri datur ius occidendi adulterum cum filia quam in potestate habet.

D. 48.5.22 (Ulpianus, libro primo de Adulteriis)

(sic eveniet, ut nec pater nec avus possint occidere) nec immerito: in sua enim potestate non videtur habere, qui non est suae potestatis.

(Papinian in the first book On Adulteries)

The right of killing an adulterer along with a daughter is granted to her pater if he has her in his power. Therefore, no other type of father may lawfully do this, in­cluding a father who is himself a son-in-power.

(Ulpian in the first book On Adulteries)

And thus it will happen that neither a father nor a grandfather is able to kill. This result is quite right, since a person who is himself not legally independent is not held to have another in his power.

1.      The Statute. The lex lulia de adulteriis coercendis, promulgated by the Emperor Augustus in 18 or 17 B.C., granted the right of killing (ius occidendi) to fathers as well as to outraged husbands, but with this difference: the husband was permitted to kill only certain types of adulterers (this group included pimps, gladiators, actors, condemned criminals, freedmen of the husband, of the wife, or of close family members, and slaves), and he was not allowed to kill his wife under any circumstances.

2.      Potestas and Manus. Papinian (D. 48.5.23 pr.) states that the law did not dis­tinguish between biological and adoptive fathers, which makes sense, given how the statute connects the ius occidendi with patria potestas. Other texts show, however, that fathers who had given their daughters in marriage with manus were also entitled to the ius: Paul, Coll. 4.2.3; Papinian, Coll. 4.7.1. What is the rationale for this extension? Why, on the other hand, were grand­fathers who held potestas not granted the right of killing an adulterous woman with her lover?

3.      Father versus Husband. Both the statute and the jurists tend to draw a con­nection between the ius occidendi and patria potestas. Does this make sense? What is the motive for making such a connection? Does it help explain why the fathers “self-help” powers are more extensive than those of the husband? Which of these two parties was thought to care more deeply about a womans adultery? Ulpian (D. 48.5.2.8 = Case 50) states that when a husband and fa­ther appear simultaneously as prosecutors in a case of adultery, the husband should be preferred, because his “sharper rage and greater anger” will make him more effective in this role. Why not apply the same logic to the ius occi­dendi? Compare also Papinian's explanation (D. 48.5.23.4): “The reason it is the father and not the husband who is permitted to kill the woman and any adulterer is that for the most part the pietas natural to a fathers role intercedes on behalf of his children, but a husbands heat and impulsiveness of a hus­band leaps easily to a decision and ought to be held in check.” Convinced?

4.      Son-in-Power.

5.      Emancipated Daughters. Could fathers also kill their daughters (along with their lovers) once the daughters had been emancipated, that is, were of inde­pendent legal status (sui iuris)? Some jurists did permit this: Marcellus and Paul, Coll. 4.2.4. Does their view seem consistent with the statute as para­phrased by Papinian? If such a view is correct, would it follow that the right to kill is legally determined less by patria potestas than by the self-help en­forcement of marital fidelity?

6.      Is This Right Superfluous? In the late classical period, Papinian (Coll. 4.8.1) reports an inquiry: “Since ancestral law gives to a father the power of life and death over a child, please answer me this, for I want to know: what was ac­complished by including in the statute that there is also a power of killing a daughter?” That is, doesn't the vitae necisque potestas already allow the father to kill his daughter? And if so, why should he need additional legislative sup­port? In response, Papinian takes an indirect approach: “Does this addition provide us with an argument ex contrario that the statute be held not to have given (a right) to one who did not have it (i.e., the father), but (rather) to have ordered that she be killed along with the adulterer, so that he seem to have killed the adulterer from larger motives of fairness, since he also did not spare his daughter?” Why didn't Papinian answer by saying that the vitae necisque potestas no longer exists, or that this power cannot be extended from sons to daughters?