CASE 96: Limitations on Killing a Daughter

D. 48.5.24 pr., 4 (Ulpianus libro primo de Adulteriis)

(pr.) Quod ait lex “in filia adulterum deprehenderit,” non otiosum videtur: voluit enim ita demum hanc potestatem patri competere, si in ipsa turpitudine filiam de adulterio deprehendat.

(Ulpian in the first book On Adulteries)

(pr.) The law says: “he shall have caught the adulterer inside his daughter.” This (wording) does not seem without point, for it (the law) intended that the father have this privilege if and only if he should catch his daughter in adultery, while she was actually engaged in the shameful act. Labeo too accepts this, and Pom­ponius has written that (only) a person caught in the very act of lovemaking is killed; and this is (also) what (the Athenian lawgivers) Solon and Draco mean by “in the act.”...

(4)     When the law says “he should kill his daughter immediately,” this must be understood as follows: when the lover is killed on one day, he should not spare his daughter and then kill her several days later, or vice versa.

1.      Statutory Interpretation. How do Ulpian and his predecessors interpret the statutory phrase “shall have caught the adulterer inside his daughter”? Was this interpretation inevitable? Why invoke the early Athenian lawgivers Solon and Draco? What motives might there be for this restriction in the first place?

2.      Statutory Limits. Both the statute and the jurist appear to assume that most fathers would be readier to kill the lover than the daughter. Why then require the father to kill both? Remember that the husband is strictly forbidden to kill both parties, even where he is permitted to kill the lover. Why insist on killing both immediately rather than, for example, allowing the father to call a consil­ium of friends and family members to determine guilt?

3.      Die Harder. If the father does not obey the rules, he may be guilty of homi­cide. Suppose the daughter survives her wounds. Macer (D. 48.5.33 pr.) writes: “It makes no difference whether or not the father kills his adulterous daughter first, provided he kills them both. For if he kills (only) one, he will be a defendant under the lex Cornelia (for homicide). But if one is killed and the other wounded, he is not, to be sure, freed from liability according to the wording of the statute; but the deified Marcus and Commodus have laid down in a rescript that freedom from liability is granted to him, because, al­though after the lover was killed the woman survived such serious wounds as her father had inflicted on her, she was preserved more by chance than by his will—since the law demands an equal measure of anger and expects similar drastic action against those who have been caught in the act.” Does this mean that a good-faith effort counts?

4.      Wrongful Intent.

5.      Just Anger. Is it reasonable or fair to insist that the murderous rage of the fa­ther exercising the ius be somehow distinguishable from intent to commit homicide? And suppose outward manifestations of such rage are lacking. At what point is the ius occidendi not an independent “right” but simply an affir­mative defense against a charge of murder?

6.      Killing at Home. The statute also required the father to have discovered the adultery either in his own home (whether or not the daughter resided there) or in that of his son-in-law; and if the father owned more than one house, only his main residence qualified. See Papinian and Ulpian, D. 48.5.23.2, 24.2-3. Ulpian (24.2) explains: “The reason the father is not permitted to slay his daughter wherever he catches her but only in his own house or that of his son-in-law is thought to be that the legislator deemed it a greater affront (ini- uria) should a daughter dare to admit a lover into her fathers house or that of her husband.” Do these limitations suggest that the right to kill a daughter is less aimed at directly deterring or punishing adulterers than at legitimizing a fathers violent reaction to the invasion of his home?

7.      Narrow Interpretation? One way to get rid of an awkward legal rule is to in­terpret it in such a way that it is rarely applicable.

D. 1.6.9 (Pomponius libro sexto decimo ad Quintum Mucium)

Filius familias in publicis causis loco patris familias habetur, veluti ut magistratum gerat, ut tutor detur.

(Pomponius in the sixteenth book on Quintus Mucius)

In public matters a son-in-power is treated as a pater familias, for example, in order that he hold a magistracy or be named a tutor

1.      Clashes between the Family and the State. This brief fragment states a prin­ciple of great significance: that a fathers power over a son (in particular) nor­mally comes to an abrupt end when the son attempts to act, or is called upon to act, in his capacity as a citizen. At issue here are questions such as these: can a father prevent a son from joining the army or running for public office, can he order him to vote for a particular candidate in a public election, can he pre­vent him from undertaking a public duty such as acting as a guardian (tutor) to a ward, and so on? Although the answer to these questions is almost always no, it is fair to ask whether a father might use his powers to influence an adult son's public actions through means more indirect than outright command or prohi­bition. In any event, despite the considerable powers of patres familias, sons- in-power are not slaves and are never conceived of as such in Roman law.

2.      A Son Is Dragged from the Dais. A good example of the conflicts that gave rise to the rule in this Case is the anecdote recounted by Valerius Maximus (5.4.5).

3.      My Son the Governor. You are a pater familias. Your son has just become a provincial governor, and since then he has been insufferable to you. Can you humiliate him by giving him in adoption to somebody else, using your son's own court for the final stage of the adoption process? (On the proce­dure, see Case 149.) See Paul, D. 1.7.3 (yes). Is there any problem with such a procedure?

4.      Sons-in-Power and Women. Adult Roman males, even while still in the power of a pater familias, participated in civic life as equals. Adult women were quite differently treated: they were excluded in principle from participa­tion whether or not they were sui iuris. See Chapter VB.1-2.