CASE 90: The Consilium I: Almost the Entire Senate
Valerius Maximus, Facta et Dicta Memorabilia 5.9.1
L. Gellius, omnibus honoribus ad censuram defunctus, cum gravissima crimina de filio, in novercam commissum stuprum et parricidium cogitatum, propemodum explorata haberet, non tamen ad vindictam continuo procucurrit, sed paene universo senatu adhibito in consilium expositis suspicionibus defendendi se adulescenti potestatem fecit inspectaque diligentissime causa absolvit eum cum consilii tum etiam sua sententia.
quod si impetu irae abstractus saevire festinasset, admisisset magis scelus quam vindicasset.(Valerius Maximus in the fifth book of Memorable Deeds and Sayings)
Lucius Gellius, a man who had held all public offices up through that of censor, possessed near certainty that his son was guilty of very serious offenses, namely committing adultery with his stepmother and plotting the murder of his father. Still, he did not rush at once to vengeance but (instead) summoned almost the entire Senate to his consilium, set forth his suspicions, and offered the young man the chance to defend himself. And when he had very carefully examined the case, he acquitted him not only by the verdict of the consilium but also by his own. Now if, carried away by the force of anger, he had hastened to vent his cruelty, he would more have committed a wrong than avenged one.
1.New Roman"'> The Senate as Consilium. Why did Lucius Gellius, a prominent politician of his day (consul in 72 B.C., censor in 70 B.C.), summon “almost the entire Senate” to sit as his consilium in determining the fate of his son? Was he required to do so by law? Was he looking for political cover? Or was he concerned with adverse public reaction if he did not act in this way? In any case, does this move suggest that Gellius felt he did not enjoy full freedom to exercise the vitae necisque potestas, despite a case that appeared, at least to him, to be one of manifest guilt? Could he have reserved the right to disagree with his consilium? On the basis of this Case, what can be said with certainty about the late Republican law on the subject?
2. The Verdict Rules.
Is Valerius Maximus more impressed by the procedure that Gellius follows or by the verdict that he issues? Suppose Gellius had found his son guilty. From the Roman perspective, would the charges have justified his killing his son? Does it seem likely that he would have been officially prosecuted or sanctioned? Note that this incident occurred before the adoption of the Augustan adultery legislation (Cases 50-55, 95-96).3. Death without Due Process. What if a father ignored the advice of a consilium? In the late second century B.C., Q. Fabius Maximus Eburnus, like Gellius a senator and a former consul and censor, was convicted and forced into exile for killing his son. The main sources (Valerius Maximus, 6.1.5; [Quintilian], Declamationes Maiores 3.17; Orosius, 5.16.8) are difficult to reconcile, but the following story seems likely. Eburnus suspected his adolescent son of improper sexual conduct (probably homosexuality). After “an investigation at home” (cognita domi causa) that presumably involved a consilium, the son was sent off to live in the country, away from temptation. But Eburnus subsequently dispatched two slaves who killed the son in return for a promise of freedom. This use of the slaves may indicate an attempt at concealment. We do not know exactly why Eburnus was convicted of murder; but does his conviction necessarily mean that the jury rejected the vitae necisque potestas as a defense? Is it possible that the son's offense was deemed insufficiently serious to warrant death, or that the jury condemned the fathers implicit rejection of his consilium’s advice? A fragmentary late Roman commentary on Gaius (Gaius Augustodunensis 86) appears to indicate that a son could not be killed “without just cause” (sine iusta causa), a rule ascribed to the Twelve Tables of 449 b.c. How would the verdict of a consilium help in establishing the existence of just cause?
4. Killing a Thief.
Most reported instances of fathers killing sons for domestic offenses involve sexual misconduct. However, Orosius (4.13.18) reports a late-third-century B.C. incident in which a father (an ex-censor) put his son to death for committing a theft. The correctness of this report has been doubted, but it raises the issue of how wide a father's authority was to govern a son's conduct. Did it include misconduct toward persons outside the familia?5. A Political Conspirator. In 63 B.C., evidently just a few years after the incident in this Case, Aulus Fulvius, another senator, killed his son for setting out to join Catiline in his coup against the Roman state. The sources (Sallust, Bellum Catilinae 39.5; Valerius Maximus, 5.8.5; Dio, 37.36.4) present the killing as fairly impetuous and apparently undertaken without consulting a consilium; yet it seems Fulvius escaped both legal consequences and serious public criticism. What is the essential difference between this case and those of Gellius and Eburnus? In other sources from the later Republic, we hear of sons condemned by their fathers for extorting money during a provincial governorship or for running away in a battle.
6. Daughters. Though fathers usually act against sons, they could also kill their daughters (see, e.g., Valerius Maximus, 6.1.6: a daughter put to death for sexual turpitude, stuprum).
7. Newborns. It is clear (from sources such as Case 46) that patria potestas arises when a legitimate child is born; no special act of parental recognition or legitimation is required (see below, Part C.1). The one time during which a pater familias has an apparently unfettered legal right to kill his child (or to abandon it through exposure) is shortly after its birth.
This right was not substantially limited until the fourth century A.D., evidently under Christian influence.8. Contraception and Abortion. Classical Roman law did little to restrict private attempts to curb fertility, and abortion was permitted if the husband consented; for example, Marcian (D. 47.11.4) observes that Septimius Severus exiled a woman who “defrauded her husband of children” by obtaining an abortion. The primary legal interest, then, is protecting the husband's expectation of children; how does this differ from modern law? The husbands rights could last beyond the marriage; Severus also exiled a woman who, after a divorce, aborted her fetus “to avoid bearing a son for her now hateful husband” (see Tryphoninus, D. 48.19.39). See also Cases 47-48.