CASE 92: A Hunting Accident?

D. 48.9.5 (Marcianus libro quarto decimo Institutionum)

Divus Hadrianus fertur, cum in venatione filium suum quidam necaverat, qui novercam adulterabat, in insulam eum deportasse, quod latronis magis quam patris iure eum interfecit: nam patria potestas in pietate debet, non atrocitate consistere.

D.

Inauditum filium pater occidere non potest, sed accusare eum apud praefectum praesidemve provinciae debet.

(Marcian in the fourteenth book of his Institutes')

While hunting, a man had killed his son, who (at the time) was committing adul­tery with his stepmother. The deified Hadrian (reign: A.D. 117-138) is said to have exiled him to an island, because in killing him he used more a brigand’s right than a father’s. For a father’s power (patria potestas) ought to be founded upon pietas not cruelty.

(Ulpian in the first book On Adulteries)

A father cannot kill his son without a hearing but should bring an accusation against him before the prefect (of Rome) or the provincial governor.

1.      What Did the Father Do Wrong? Marcian appears to assume, at any rate for purposes of argument, that the son had been committing adultery, and that, in retaliation, his father staged the hunting accident. What is it that Hadrian found unacceptable in the fathers conduct: that the father had acted without semblance of due process or that the punishment (death) was excessive in re­lation to the crime of adultery? Or some combination of both? What clues does the text offer as to the emperors reaction? Would Hadrian have accepted the son's death if it had been preceded by a hearing in a domestic consilium? Or if the son's offense had been, not just adultery, but a plot to kill his father, as in the preceding Case?

2.      The Gravity of the Offense.

3.      What Crime Did the Father Commit? He suffered deportation, a criminal penalty involving capital exile accompanied by loss of citizenship and confis­cation of property—a punishment just short of execution. But what was his crime? Marcian's fragment comes from his remarks on the lex Pompeia de par­ricidiis, a statute (probably of 52 B.C.) dealing with parricidium, the murder of close relatives. At D. 48.9.1, Marcian summarizes the statute: it concerns any­one who kills or brings about the killing of “a father or mother, a grandfather or grandmother, a brother or sister, a first cousin from a fathers or a mothers brother, a paternal or maternal uncle, a paternal or maternal aunt, a first cousin from one's maternal aunt, a wife or husband, a betrothed man, a fa­ther-in-law, a son-in-law, a mother-in-law, a daughter-in-law, a stepfather, a stepson or stepdaughter, a patron or patroness.” A long list, but notice any glaring omissions? (Not only are children and grandchildren left out, but also a stepmother and a betrothed woman. However, these latter two were soon covered “by the spirit of the law”; Marcian, D. 48.9.3.) As Marcian goes on to say, the statute was extended by interpretation to include a mother who killed her child. Did Hadrian's decision effectively stretch the statute still further to include a father who does the same? The sanction under this statute was ex­ceedingly severe for the killing of a parent or grandparent (by long-standing tradition, the parricide was flogged, then sewn into a sack with a dog, cock, viper, and monkey; next, the sack was thrown into the sea); but for other killings the standard murder punishment was used.

4.      Pietas. Marcian's justification for Hadrians decision ties paternal power to pietas, an untranslatable word conveying a sense of the devotion and duty that Romans considered an ideal aspect of relations between close family members. What constraints do you think invocation of this concept placed on exercising the vitae necisque potestas?

5.      Generalization. Ulpian wrote about a century after Hadrians decision. What is the relationship between Marcian's report of this decision and Ulpian's rule? Note that the Ulpian fragment derives from his commentary on the adultery statute; can it be regarded as generalizing Hadrian's decision only with respect to charges of adultery, or should it be understood more broadly? When Ulpian states that a father cannot kill his son “without a hearing,” does he pre­clude the possibility that the father might use a domestic consilium for this purpose?

6.      How Much Survived? Our sources on this aspect of patria potestas are not very full. Still, does it seem that, in the late classical period, a pater familias could still kill his child, whether after consulting a consilium or not? Do the sources give any clear clues as to the reasons for such legal change as did occur? In Case 177, the jurist Paul (a contemporary of Marcian and Ulpian) observes that “it was (once) permitted to kill” sons. Does this suggest a living right in his time?