On the Roman father's right to kill his adulterous daughter

Abstract

The second chapter of Augustus’ lex Iulia de adulteriis coercendis entitles the Roman father – under specific, narrowly defined circumstances – to kill his adulterous daughter and her lover. This paper focuses on three aspects:

First, it explores the Roman traditional institution of patria potestas, which had its most vigorous expression in the father's vitae necisque potestas – the power over life and death of his kin.

Second, Augustus introduced public court procedures for adultery and thus shifted the ‘legal’ treatment of adultery from the fathers’ domestic jurisdiction to the public state justice; the paper ventilates strategies that Augustus seems to have pursued to achieve this shift, and their historic setting. The central value of Augustus’ lex Iulia de adulteriis coercendis is the Roman women's pudicitia, a code of conduct which (re)defined legitimate marriage as the only situation in which a reputable woman could practice sex without reproach or other sanctions. This had a long and firm tradition in Roman society. By way of historiography, Lucretia and Verginia are surrounded in mysticism as most influential role models of proper female pudicitia. Remarkably, Lucretia and Verginia establish a message of bloodshed: the infringement of a woman's pudicitia is such an outrage that her death must ensue.

Third, the analysis turns to the fact that no source reports a father having killed his daughter according to the second chapter of the lex Iulia de adulteriis coercendis. Evaluating the very narrow statutory limits of this provision, it seems likely that Roman fathers were discouraged from resorting to the remnant of their pater familias jurisdiction in adultery cases. This finding leads to the question as to whether Augustus’ curbing of the fatherly jurisdiction resulted in the empowerment of Roman women. There is no apparent answer to this, because domestic jurisdiction as well as public court trials can either cultivate or disregard fairness and justice. Constantine's decree reported in Cod. 9.9.29(30).4 suggests that until 326 A.D. Roman criminal law provided no capital punishment for a woman tried and convicted for adultery in a court.

Keywords:

• adulterium
• the second chapter of the lex Iulia de adulteriis coercendis
• ius vitae necisque
• murder
• patria potestas
• pater familias
• pudicitia

Acknowledgements

I would like to express my deep gratitude to Margareth Lanzinger for bringing me onto the panel as well as for kindly insisting on the print version of my paper, and to my colleagues whose attentive support enabled me to clarify and confirm numerous aspects of this study: Andreas Bartholoma¨, Viktor Falschlehner, Birgit Forgo´-Feldner, Eva Maria Freudenthaler, Richard Gamauf, Isabella Gorgosilich-Mujzer, Verena Halbwachs, Philipp Klausberger, Michael Mo¨nichweger, Peter Pieler, Johannes Platschek, Peter Steindl, Helen Stringer and Katharina Windisch.

Notes

^1. For the role of legal principles in modern legal thinking see for example Dworkin (1978, pp. 22 et seqq).

^2. Today life is the object of a differentiated protective regime at the human rights’ level. Cf. Art 3 of the Universal Declaration of Human Rights 1948, Art 2 of the European Convention on Human Rights, and Art 6 of the International Covenant on Civil and Political Rights.

^3. Involuntary killing of another person – manslaughter – has mostly been forbidden and sanctioned by law, but does not fall within the scope of this study. Remarkably enough, one provision of the Roman Twelve Tables (450–449 B.C.) addressed killing a person by negligence. Cf. Lex XII Tabularum 8.24a. Si telum manu fugit magis quam iecit, aries subicitur. Translation: If the weapon escaped from the hand rather than him throwing it, a ram is submitted.

^4. Cf. Art 43 § 2, 48 and 51 § 2 of the Geneva Conventions Protocol I. Cf. also Art 8 § 2 lit b Rome Statute and Art 2 in conjunction with Art 15 § 2 ECHR.

^5. A behaviour which is prescribed by law cannot be deemed illegal. This principle is expressly enshrined in the wording of certain legal provisions; cf. for example Title 18 § 1111 of the US Code: ‘Murder is the unlawful killing of a human being with malice aforethought.’

^6. Mens rea means guilty mind. According to modern standards of law, criminal conviction requires a certain element of individual guilt.

In some countries there has been an inglorious tradition to acquit husbands who killed their wives by holding that it happened as an uncontrollable reflex in response to an assault on the husband's honour. See for example Hossain and Welchman (2005). For a similar attitude in Roman jurisprudence, see infra the last paragraph of fn. 107.

^7. ‘A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed’. The case District of Columbia v. Heller, 554 U.S. 570 (2008), stated that this Second Amendment (1791) to the U.S. Constitution protects the individual's right to keep and bear arms. The decision was adopted by five votes to four. It promotes acts of private justice by guaranteeing the individual's right to keep and bear arms: although keeping and bearing arms is considered a prerequisite of self-defence, this constitutional provision is deemed to support private justice significantly more than monopolising the use of arms through state control, applying a license system which governs trade, possession and use of weapons.

^8. In the eyes of Roman law, slaves were objects, not persons. See infra section 2.1.

This was reflected by the fact that after killing another person's slave the lex Aquilia entitled the former dominus or domina to hold the tortfeasor liable for damages. Cf. for example Dig. 9.2 Ad legem Aquiliam. To bring a criminal charge for the killing of a slave seems to have been possible since the lex Cornelia de sicariis et veneficis; see Robinson (1995, p. 43).

^9. For instance, the killing in wars of rival drug cartels often escapes the prosecution of the state's criminal justice. See for example Corcoran (2011).

^10. Roman law developed the crime of adultery as a disciplinary measure towards women, not towards men. A Roman husband could not commit adultery with regard to his own marriage. Thus, the primary criminal was the married woman, whereas her lover seems like an accomplice in her crime.

^11. For patria potestas see infra sections 2 and 3.

^12. For ius occidendi, vitae necisque potestas and ius vitae necisque see infra sections 2 et seqq.

^13. Women of low reputation such as prostitutes were less or not affected by the moral and legal rules of pudicita; for pudicitia see the following paragraph and sections 6 and 7. For this aspect in the lex Iulia de adulteriis coercendis see for example Crawford (1996, p. 785, with further references).

^14. Pudicitia also barred respectable women – matres familiarum (see for example McGinn, 1998, pp. 147–156) – from pre- and post-marital sexual activities, usually denoted as stuprum; cf. for example Iustinianus Institutiones 4.18.4. For the ideological construction of pudicitia, see infra section 6. Beyond prescribing chastity and fidelity as a regime of sexual conduct, female pudicitia extended to a broader gender concept, imposing certain rules of propriety on women – such as modesty. See for example Benke (1995, pp. 203–212). The sources seldom portray Roman men as perpetrators of pudicitia; cf. for example Valerius Maximus 6.1.5–13.

^15. For more on these aspects of patria potestas, see infra sections 2, 3 and 7.

^16. For more on the status of being alieni iuris, see infra section 2.

^17. For more on the status of being sui iuris, see infra section 2.

^18. Cf. for example Gaius Institutiones 1.55 et seqq. References to and excerpts from Gaius Institutiones are based on the edition of Manthe (2004).

^19. Cf. for example Gaius Institutiones 1.97 et seqq, 2.136.

^20. A man sui iuris was capable of having children in patria potestas, a wife in manus and slaves as property items. A woman sui iuris was capable of having slaves, but not of holding potestas over children. Cf. for example Gaius Institutiones 1.104, 2.161; see fn. 30.

^21. Cf. for example Gaius Institutiones 1.132.

^22. For the termination of patria potestas cf. for example Gaius Institutiones 1.127 et seqq.

^23. Cf. Gaius Institutiones 1.54 et seq.

Gaius Institutiones 1.49. Rursus earum personarum, quae alieno iuri subiectae sunt, aliae in potestate, aliae in manu, aliae in mancipio sunt. Translation: Again, of those persons who are subject to the ius of another, some are in potestas, others are in manus, and others are in mancipium.

Gaius uses the term mancipium to describe generally a status of slave-like submission. Gaius Institutiones 1.138. Hi, qui in causa mancipii sunt, […] servorum loco habentur […] Translation: Those who exist on the footing of mancipium take the place of slaves […].

Yet, the son given in mancipio by his father may later be emancipated, which empowers him to enjoy unabridged public and private rights, whereas a slave needs a manumissio for terminating his servitude and is then a freedman – libertus. A libertus enjoys neither high societal esteem nor the full range of rights a freeborn adult man sui iuris does (see for example fns. 52, 107).

^24. Sui iuris minors were under guardianship – tutela; they were able to hold property, but transactions needed to be authorised by the guardian.

^25. For a detailed discussion of status, private law capacities and sexual offences, see for example Gardner (1986); for women's confined agency in the public sphere, see for example Forgó-Feldner (2002).

^26. See fn. 61.

^27. Cf. for example Gaius Institutiones 1.108 et seq. See also fns. 23, 91.

The Romans’ patrilineal family structure – agnatic kinship – vested the oldest pater with patria potestas, to which all his legitimate (unemancipated) offspring (including adopted children) were submitted as persons alieni iuris (see fn. 101). Hence, sometimes the parties to conventio in manum (see fns. 92–94) were not the bride's father and the (future) husband, but her grandfather and the husband's father or even grandfather, who then acquired manus over the daughter-in-law or even granddaughter-in-law. Subsequently, the husband could hold manus over his wife when he became sui iuris – as soon as his grandfather and father had died (or he had been made sui iuris by way of emancipatio).

^28. For conventio in manum see infra sections 7.2, 8 and fns. 91–94, 115. On her marriage, a woman sui iuris had the option to submit to her husband's manus.

^29. Cf. Collatio 4.7.1, see subsequent paragraph, Dig. 48.5.21(20) (Papinianus libro 1 de adulteriis), Dig. 48.5.22(21) (Ulpianus libro 1 de adulteris), see fn. 84, and 48.5.24(23).1 (Ulpianus libro 1 de adulteriis), see fn. 85.

Collatio 4.7.1 Papinianus libro singulari de adulteris: Quaerebatur, an pater emancipatam filiam iure patris accusare possit. Respondi: occidendi quidem facultatem lex tribuit eam filiam, quam habet in potestatem, aut quae eo auctore in manum convenit: sed accusare iure patris ne quidem emancipatam filiam pater prohibetur. Translation: Papinianus in his single book on adulterers: The question was raised as to whether the father has the fatherly right to accuse the emancipated daughter < of adultery>. I answered, the statute provides for the possibility of killing with regard to the daughter, who he has in potestas or who was by his authority submitted to manus. However, the father is not at all excluded from the fatherly right to accuse the emancipated daughter.

There is a problem with the text of Collatio 4.2.4 (Paulus), which might be read as extending the father's ius occidendi to his emancipated adulterous daughter. Johannes Platschek has convinced me that the fragmented sentence does not speak of a father's right to kill his emancipated – sui iuris – daughter; he understands the phrase in sui iuris as ‘in the father's potestas’ and assumes a reference to a ius occidendi which preceded the lex Iulia, expressed by the general term licito iure.

^30. A Roman woman cannot hold patria potestas; being sui iuris, she is a familia that comprises no other member. See supra section 2.1. Dig. 50.16.195.5 (Ulpianus libro 46 ad edictum). Mulier autem familiae suae et caput et finis est. Translation: A woman though is both the head and the end of her own family.

^31. See for example Kaser (1971, pp. 60–71, 341–352).

^32. Gaius Institutiones 2.86 Adquiritur autem nobis non solum per nosmet ipsos, sed etiam per eos, quos in potestate, manu mancipiove habemus […]. Translation: Our acquisitions are achieved not only through ourselves but also by those who we have in potestas, in manus or in mancipium […].

Cf. also Gaius Institutiones 2.89 et seq; 3.163.

^33. This is true for all persons alieni iuris – be it the children under patria potestas and the wife under manus or be it a slave; the slave status was defined as unfree and subject to property law.

Cf. for example Gaius Institutiones 2.87 […] ipse enim, qui in potestate nostra est, nihil suum habere potest […]. Translation: Since a person who is in our potestas cannot have something as his/her own.

Cf. also Gaius Institutiones 2.90.

^34. For the statuses alieni iuris and sui iuris see supra section 2.

^35. Cf. for example Gaius Institutiones 4.69–74a.

^36. Likewise, a dominus or a domina could by way of noxae deditio hand over slaves who had committed torts.

Gaius Institutiones 4.75. Ex maleficio filiorum familias servorumque, veluti si furtum fecerint aut iniuriam commiserint, noxales actiones proditae sunt, uti liceret patri dominove aut litis aestimationem sufferre aut noxae dedere. Erat enim iniquum nequitiam eorum ultra ipsorum corpora parentibus dominisve damnosam esse. Translation: On account of offences committed by sons under paternal control or by slaves – for instance, where they committed furtum (theft) or iniuria (insult) – noxal actions are granted, thus the father or master is permitted either to pay the damages estimated or to surrender the tortfeasor. Since it would be unjust that the misconduct of those would cause any loss to parents or masters beyond (the value of) their (the sons’ and servants’) bodies.

Cf. for example Gaius Institutiones 4.75–79; cf. also Lex XII Tabularum 12.2a–2b. Noxae deditio was also an option that the law provided when the damage had been afflicted by a four-legged animal: Cf. Dig. 9.1. Si quadrupes pauperiem fecisse dicatur. Translation: If a quadrupes may be said to have caused mischief.

^37. For in mancipio esse see fn. 23.

^38. Noxae deditio adversely affected the wronged person when the damage was higher than the value of the surrendered wrongdoer. Plausibly, Roman jurists excluded noxae deditio and entitled the wronged person to full compensation when the ‘master’ was somehow involved in the commitment of the tort – either having ordered it, or not having prevented it even though he or she (a domina of a slave) could have done so. Cf. for example Dig. 9.2.44.1 (Ulpianus libro 42 ad Sabinum), Dig. 9.2.45 pr (Paulus libro 10 ad Sabinum), Dig. 9.4.2 pr (Ulpianus libro 18 ad edictum).

^39. See for example McGinn (1998, pp. 10–11). See following two fns.

^40. Gaius Institutiones 3.221. Pati autem iniuriam videmur non solum per nosmet ipsos, sed etiam per liberos nostros, quos in potestate habemus, item per uxores nostras, cum in manu nostra sint; itaque, si vel filiae meae, quae Titio nupta est, iniuriam feceris, non solum filiae nomine tecum agi iniuriarum potest, verum etiam meo quoque et Titii nomine. Translation: We seem to suffer iniuria (insult) not only in person, but also through our children, who we have in potestas, and likewise through our wives, for they are in our manus. Thus, if you insult for instance my daughter, who is married to Titius, the action of iniuria can be filed against you not only in the name of the daughter, but also in my name and in the name of Titius.

Cf. also Dig. 47.10.1.3–9 (Ulpianus libro 56 ad edictum).

^41. If a man stalked or otherwise molested a reputable Roman woman, he might have become liable for a tort called ademptata pudicitia (tempted chastity). This was a specific type of iniuria (insult) and resembles in certain respects the modern legal concept of sexual harassment. The aspect of intertwined individual and collective interests is also clearly documented here by the fact that it was not only the molested woman who could take action against the wrongdoer, but also her father and her husband, according to Ulpian even her fiance´. Cf. Dig. 47.10.1. 2–3, 9 (Ulpianus libro 56 ad edictum), Dig. 47.10.9.4 (Ulpianus libro 57 ad edictum), Dig. 47.10.15.24 (Ulpianus libro 77 ad edictum), Dig. 47.10.18.2 (Paulus libro 55 ad edictum).

^42. See for example Joshel (2002, p. 174): ‘As is well known, a woman's chastity is associated with the honor of her male kin (Dixon 1982; Ortner 1978)’. According to the lex Iulia de adulteriis coercendis a conviction for adultery excluded the adulteress from remarriage. See fn. 149.

^43. See for example Treggiari (1991b, pp. 125–160, 323–505).

^44. See fns. 39 et seqq.

^45. See for example Robinson (1995, pp. 41–47).

^46. Another exception: The law permits the killing of the thief at night and the thief who defends himself with a weapon. Cf. Lex XII Tabularum 8.12–13; Collatio 7.1–4; Dig. 48.8.9 (Ulpianus libro 37 ad edictum); Dig. 9.2.4.1 (Gaius libro 7 ad edictum provinciale) Lex duodecim tabularum furem noctu deprehensum occidere permittit, ut tamen id ipsum cum clamore testificetur: interdiu autem deprehensum ita permittit occidere, si is se telo defendat, ut tamen aeque cum clamore testificetur. Translation: The Twelve Table Statute permits the killing of a thief caught at night, provided that this can be testified to by screams. Also when caught during the day it is permitted to kill him if he defends himself with a weapon, provided that this will equally be testified by screams.

^47. See for example Crawford (1996, pp. 781–786, with further references).

Although it may seem revolting to us, Roman legal and moral tradition afforded to fathers some liberty of killing their daughters (see also fns. 51–53): A rescriptum of Marcus and Commodus (176–180 A.D.) deals with a father who killed the lover but whose adulterous daughter escaped and survived, exculpating his failure to also kill her (which the statute required) with the argument that he did not want to spare her and had in fact had the proper intention of killing her; cf. Dig. 48.5.33(32) pr (Macer libro 1 de publicis iudiciis), see fn. 77.

Despite the bold comparison over millennia, two experiences of the present are apt to support the existence of some fatherly ius occidendi in Roman Antiquity. The ius occidendi is highly reminiscent of the upsetting practice which we still encounter in the phenomenon of familial honour crimes (see fn. 6). Nowadays, state prosecution ensues in most cases, but often families feel strictly obliged to compensate for the allegedly improper behaviour of a female member by killing her. Furthermore, considering modern statistics which document that (in non-war periods) family relationships are by far the most frequent scenes of violence, ius occidendi may also have been resorted to if the pater familias inadvertently caused his child's death when afflicting corporal punishment. See also fn. 54.

^48. See supra section 1.4.

^49. Gaughan (2010, p. 1) detects for most of the Roman Republic two figures who were primarily responsible for the functioning of the civitas – the magistratus and the pater familias. As Gaughan explains, they cooperated on the basis of interdependent competences (ibidem pp. 23–52). Both of them were vested with a right to command and to kill.

As the title indicates, a very sceptical analysis of the fathers’ vitae in liberos necisque potestas is delivered by Shaw (2001, pp. 56–77, with further references).

^50. On the topic of child exposure cf. for example Dig. 40.4.29 (Scaevola libro 23 digestorum); Cod. 8.51(52) De infantibus expositis liberis et servis et de his qui sanguinolentos emptos vel nutriendos acceperunt. Translation: On exposed free and enslaved children and on those who took on the newborn as a purchase or for nourishing. See for example Harris (1994, pp. 1–22). Cod. 9.16.7 (Cod. Theod. 9.14.1), originally issued by Valentinianus, Valens and Gratianus in 374 A.D., penalised infanticide as a capital crime.

^51. In principle, the fatherly power over life and death concerned daughters as well as sons under patria potestas. For the debate about the actual relevance of the ius vitae necisque in Augustus’ times and later, see infra sections 4.2 and 9.

^52. Collatio 4.8.1 (Papinianus). The husband's right to kill his adulterous wife is documented in older sources (see for example Baumann, 1996, pp. 32 et seqq), whereas the Augustan regime does not provide for it. Yet, the husbands had the right to kill male adulterers if the latter were of low social status – for example a servus (slave) or a libertus (former slave, freedman) freed by the husband or the husband's father. See fn. 107.

^53. See for example Mommsen (1899, pp. 16–26), also on the cooperation of ‘Hauszucht’ and the machinery of public justice. Cf. for example Livius Periochae 48; Livius, Ab Urbe Condita 39.18.6; Valerius Maximus 5.8.2–3; 5.9.1; 6.1.3; 6.1.6; 6.3.7–8; Suetonius, Divus Tiberius 35; Tacitus Annales 2.50; 13.32.

See also Gaughan's assessment of the consilium, which played an important role in objectifying the pater familias’ coercion, and safeguarded him so that he could not be held liable for arbitrary killing. Gaughan (2010, pp. 42–52).

^54. In the second to fourth centuries, the legal sources state that the pater familias himself should sanction minor offences but hand the child over to the public official if he or she committed a major tort or crime (cf. for example Cod. 9.15.1 Valentinianus and Valens 365 A.D., De emendatione propinquorum, On the correction of relatives). This, however, does not prove the complete abolishment of the father's vitae in liberos necisque potestas, but leaves open a possible application which depended on very specific circumstances. This is also indicated by two texts of the Digest. Dig. 48.9.5 (Marcianus libro 14 institutionum) reports a decision by Emperor Hadrianus: A son died in a hunting accident, but it was revealed that his father murdered him because the son and the son's step-mother, the father's wife, had committed adultery. The father was convicted and deported to an island, for he should not have exercised his potestas like a robber (latro); not atrocity should be the essence of patria potestas, but compassion: nam patria potestas in pietate debet, non atrocitate consistere. This reasoning underlines the rule of pietas over patria potestas but does not positively and generally exclude the father's ius occidendi. The same is true for the following source in which Ulpianus could simply deny the father's ius occidendi – yet he does not, but instead combines it oddly with the requirement of trying (audire) the son. Dig. 48.8.2 (Ulpianus libro 1 de adulteris). Inauditum filium pater occidere non potest, sed accusare eum apud praefectum praesidemve provinciae debet. Translation: The father cannot kill the son without the son being tried, but is obliged to accuse him before the praefectus or the praeses provinciae.

^55. See for example McGinn (1998, pp. 202 et seqq, with further references).

^56. Shaw (2001, pp. 56–77).

^57. See for example Rizzelli (1997, pp. 32–35).

^58. Cf. a ruling by Constantine from 323 A.D., transmitted in the Codex Theodosianus as well as in the Codex Iustinianus: Cod. Theod. 4.8.6 pr […] patribus, quibus ius vitae in liberos necisque potestas permissa est […], transformed into Cod. 8.46(47).10 […] patribus, quibus ius vitae in liberos necisque potestas olim erat permissa […].

^59. For ‘the wife caught in adultery’ see fns. 52, 107.

^60. Westbrook (1999, p. 221 [footnote deleted]).

^61. As far as Roman women are concerned, two phenomena are noteworthy. Manus-marriage (see section 2), which subordinated the wife to the formal dominating position of her husband (or father-in-law), fell largely into disuse; moreover, the guardianship over emancipated women – tutela mulieris – appears as a faint and broadly ignorable instrument of control and guidance. Cf. Gaius Institutiones 1.190 et seq. See for example Cantarella (1987, pp. 135–159).

When reconstructing societal institutions and developments of Roman Antiquity, one may identify dominant models but must always consider a spectrum of possible differentiations: for instance, the provincial law does not conform entirely with that of the Italic centre (for example Egyptian sources again and again report the assistance of a tutor mulieris in women's transactions; see for example Evans Grubbs, 2002, pp. 34 et seqq). Another reason for uncertainty about dominant models lies in the fact that social strata are not equally reflected in the transmitted documents; numerous sources give information on social practices such as marriage, divorce, dowry and education, but most of them relate to people of the upper class. See for example Bradley (1991, pp. 79–98); Corbier (1991, pp. 47–78).

^62. Although the cognatic concept of family relations – the family members being related by blood – increased in relevance (for the traditional agnatic concept of family relations see supra section 2 and fn. 101) and the gender balance was improved in some respects, the male-dominated family construction with the pater familias at its head held its ground for centuries and was firmly restated by Justinian's legislative work (6^th century A.D.), which founded the Corpus Iuris Civilis.

^63. See for example Robinson (1995, pp. 2–6, 59). Cf. for example Dig. 48.18.17 pr (Papinianus libro 16 responsorum).

^64. The criminal procedures were initiated by accusations; as a rule, most men were free to make an accusation for adulterium. See fn. 66. For women's very restricted rights to file criminal charges see Dig. 48.2.1 (Pomponius libro 1 ad Sabinum), Dig. 48.2.2 pr (Papinianus libro 1 de adulteriis).

^65. Dig. 48.5.2.2, 48.5.2.6 (Ulpianus libro 8 disputationum); Dig. 48.5.30(29) pr (Ulpianus libro 4 de adulteriis).

^66. Cf. for example Dig. 48.5.2.9, 48.5.4.1–2 (Ulpianus libro 8 disputationum); Collatio 4.4.1–2 (Paulus).

^67. The lex Iulia de maritandis ordinibus (18 B.C.) and the lex Papia Poppaea (9 A.D.) strongly motivated men to marry between 25 and 60, women between 20 and 50, and to produce three children (four if the individuals were not freeborn, but freedmen or freedwomen). Not abiding by these provisions was sanctioned by a (total or partial) ban on receiving property as heir, legatee or as beneficiary of a fideicommissum; furthermore, men were subject to disadvantages in terms of their public career (delayed appointments to certain posts) and estimation (mediocre seats in the theatre).

^68. See for example McGinn (1998, pp. 70–247).

^69. The concept is impressively manifested in Augustus’ political testament – Res Gestae Divi Augusti –, in which he focusses ideologically on having restored the Roman Republic – res publica restituta (cf. Suetonius, Divus Augustus 28).

See for example Cooley (2009, p. 36, quoting Santirocco, 1995, p. 230): ‘A number of political messages are propagated by the RGDA: “constitutional change was really continuity”; “military potestas was less important as a basis for rule than was auctoritas”; “the impulse towards autocracy … was actually based on popular consensus”; “public and private interests could in fact coincide, at least in the person of the princeps”; “vengeance was displayed by clementia”; “civil wars were really fights with foreign foes”; “war itself was effectively peace”.’ (footnote deleted).

On Augustus’ rhetoric rendering homage to senatus populusque Romanus see for example Cooley (2009, pp. 39–40). For an overview of the changing relationships between domus Augusta, princeps and res publica see for example Dettenhofer (2000, pp. 185–216).

^70. This assumption seems to be indicated by Augustus’ repeated and pervasive re-staffing of the senate. These were politically risky endeavours which he nevertheless accomplished successfully. See for example Bleicken (2010, pp. 475–483); Bringmann and Scha¨fer (2002, pp. 61–69, 205–212). Gardner (1986, p. 129), ‘[…] Augustan legislation fundamentally undermined the tradition of domestic jurisdiction’.

^71. Augustus did not kill his daughter Iulia, but accused her of adultery, had her tried by the family tribunal and exiled to an island. Evidently, he felt his potestas violated by Iulia's activities. See for example Fantham (2006, pp. 79–91), with an appendix of the sources on Iulia's disgrace, exile and death (ibidem pp. 138–146); Dettenhofer (2000, pp. 195–199).

See Severy (2003, p. 161): ‘Finally, we shall conclude with an event perceived as a challenge to both the ideology and the practical authority of the Pater Patriae; Augustus’ daughter Julia was condemned for adultery at the end of 2. In an examination the nature of the charges, the defendants, and the punishments they received, we will find sexual disloyalty to Augustus’ house treated as treason’. For Augustus as pater patriae – a rank he obtained in February of 2 B.C. – see also fn. 139.

^72. Paulus Sententiae 2.26.1. Capite secundo legis Iuliae de adulteriis permittitur patri tam adoptivo quam naturali adulterum cum filia cuiuscumque dignitatis domi suae vel generi sui deprehensum sua manu occidere. Translation: Under the second chapter of the lex Iulia de adulteriis, the adoptive as well as the natural father is permitted to kill with his own hand an adulterer caught in the act with his daughter in his own house or in that of his son-in-law, no matter what his [the adulterer's] rank may be.

Cf. also Collatio 4.2.3–7 (Paulus). For details of how the father's ius occidendi was curbed see infra section 9.

^73. Collatio 4.7.1. (Papinianus), Dig. 48.5.21(20) (Papinianus libro 1 de adulteriis), see fn. 84; Dig. 48.5.24(23).1 (Ulpianus libro 1 de adulteriis), see fn. 85. For the status of being alieni iuris see supra section 2.

^74. For patria potestas and manus see section 2.

^75. Dig. 48.5.23(22).2 (Papinianus libro 1 de adulteriis). Ius occidendi patri conceditur domi suae, licet ibi filia non habitat, vel in domo generi: sed domus et pro domicilio accipienda est, ut in lege Cornelia de iniuriis. Translation: The right to kill is granted to the father in his own house, even if his daughter does not live there, or in the house of his son-in-law; the term ‘house’ is to be understood as ‘domicile’, as in the lex Cornelia de iniuriis.

^76. Dig. 48.5.24(23) pr (Ulpianus libro 1 de adulteriis). 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. Labeo quoque ita probat, et Pomponius scripsit in ipsis rebus Veneris deprehensum occidi: et hoc est quod Solo et Draco dicunt . Translation: What the lex says – ‘shall have caught the adulterer in his daughter’ – does not appear to be otiose; for the intention was that this power should be available to the father if he should catch his daughter actually engaged in the crime of adultery. Labeo also approves < this interpretation>, and Pomponius has written that a person caught in the actual act of love is killed. This is also what Solon and Dracon say: ‘in the act’.

^77. Dig. 48.5.33(32) pr (Macer libro 1 de publicis iudiciis). Nihil interest, adulteram filiam prius pater occiderit an non, dum utrumque occidat: nam si alterum occidit, lege Cornelia reus erit. Quod si altero occiso alter vulneratus fuerit, verbis quidem legis non liberatur: sed divus Marcus et Commodus rescripserunt impunitatem ei concedi, quia, licet interempto adultero mulier supervixerit post tam gravia vulnera, quae ei pater infixerat, magis fato quam voluntate eius servata est: quia lex parem in eos, qui deprehensi sunt, indignationem exigit et severitatem requirit. Translation: It does not matter whether a father kills his adulterous daughter first or not, provided that he kills both of them; for if he kills one of them, he will be charged under the lex Cornelia. If, however, while one has been killed, the other is wounded, he is not justified according to the words of the statute; but the deified Marcus and Commodus wrote in a rescriptum that he may go unpunished because, although after the killing of her lover the woman survived such very serious injuries inflicted on her by her father, she was preserved more by fate than by his intention, because the law demands an equal anger and requires an equal severity against < both of>those who have been caught.

Dig. 48.5.24(23).4 (Ulpianus libro 1 de adulteriis). Quod ait lex ‘in continenti filiam occidat’, sic erit accipiendum, ne occiso hodie adultero reservet et post dies filiam occidat, vel contra: debet enim prope uno ictu et uno impetu utrumque occidere, aequali ira adversus utrumque sumpta. quod si non affectavit, sed, dum adulterum occidit, profugit filia et interpositis horis adprehensa est a patre qui persequebatur, in continenti videbitur occidisse. Translation: What the lex says, ‘may kill his daughter without delay’, is to be taken in this sense that he may not, after killing the adulterer today, spare his daughter and then kill her some days later, or vice versa; for he must kill both of them almost with the one blow and the one onset, seized by an equal anger against both. If, however, he has failed to achieve this and his daughter escapes while he is killing the adulterer, only to be caught some hours later by her father who has been pursuing her, he will be regarded as having killed < her>without delay.

^80. Livius, Ab Urbe Condita 1.58. Dant ordine omnes fidem; consolantur aegram animi avertendo noxam ab coacta in auctorem delicti: mentem peccare, non corpus, et unde consilium afuerit culpam abesse. ‘Vos’ inquit ‘videritis quid illi debeatur: ego me etsi peccato absolvo, supplicio non libero; nec ulla deinde impudica Lucretiae exemplo vivet.’ Cultrum, quem sub veste abditum habebat, eum in corde defigit, prolapsaque in volnus moribunda cecidit. Translation: All swore in turn. They tried to console the distracted woman by turning the guilt from the forced one to the perpetrator: the spirit sins, not the body, and where has been no intention there is no guilt. ‘It is for you,’ she said, ‘to see (that he gets) what is due to him; although I free myself from sin, I do not free myself from punishment; nor shall any unchaste woman survive pleading Lucretia's example.’ She stuck the knife, which she had concealed beneath her garment, into her heart and fell mortally wounded onto the floor.

^78. See for example Rizzelli (2003b, pp. 286–316); Fögen (2002, pp. 22–43); Kowalewski, (2002, pp. 107–192); Joshel (2002, pp. 163–187); Langlands (2006, pp. 80–96, 108–109); Freund (2008, pp. 308–325).

Joshel ibidem 167: ‘Even if we view Livy's “description of the monarchy and early Republic as prose epics or historical novels” (Raaflaub 1986: 8), we should not ignore the power of his fictions of Lucretia and Verginia. For Livy, they were history, and, as history, they should inform a way of life in an imperial Rome ripe for refounding’.

^79. See for example Rizzelli (2003c, pp. 268–276); Fögen (2002, pp. 61–63); Kowalewski (2002, pp. 142–175); Joshel (2002, pp. 163–187); Langlands (2006, pp. 97–109); Freund (2008, pp. 308–325).

^81. In the tradition of Lucretia's story, two striking features of sexualisation emerge: first, the story was reinterpreted in such a way that Lucretia had in fact neglected pudicitia; second, an iconographic line turns her into a ‘pin up’ – exposing the delicacy of her body, oddly thrilled by the gesture of immediate self-stabbing. See for example Fögen (2002, pp. 43–54); Rizzelli (2003b, pp. 296–316).

^82. Livius, Ab Urbe Condita 3.48. Data venia seducit filiam ac nutricem prope Cloacinae ad tabernas, quibus nunc Novis est nomen, atque ibi ab lanio cultro arrepto, ‘hoc te uno quo possum’ ait, ‘modo, filia, in libertatem vindico.’ Pectus deinde puellae transfigit. Translation: The permission being granted, he draws the girl and her nurse aside to the booths near the temple of Venus Cloacina, which now go by the name of new booths, and there, snatching up a butcher's knife, saying, ‘Only in this way, daughter, I can vindicate you into (your) freedom.’ Hereunto he pierced the girl's breast.

^83. Verginia is the model for Emilia Galotti, made most famous by Gotthold Ephraim Lessing's play from 1772. Feeling threatened by the Prince's lecherous advances, Emilia asks her father to kill her, and he fulfils her request.

^84. Papinianus confirms that only a father holding patria potestas is covered by the second chapter of the lex Iulia. So a father who himself is subject to patria potestas has no ius occidendi. The writer of Paulus Sententiae criticises this and suggests that also the father alieni iuris should be entitled to kill his adulterous daughter.

Dig. 48.5.21(20) (Papinianus libro 1 de adulteriis). Patri datur ius occidendi adulterum cum filia quam in potestate habet: itaque nemo alius ex patribus idem iure faciet: sed nec filius familias pater. Dig. 48.5.22(21) (Ulpianus libro 1 de adulteris) (sic eveniet, ut nec pater nec avus possint occidere) nec immerito: in sua enim potestate non videtur habere, qui non est suae potestatis. Translation: A father is granted the right to kill an adulterer along with a daughter whom he has in potestas; therefore, no other < class of>father may lawfully do this, including a father who is a son in power. (Thus it may happen that neither a father nor a grandfather may be able to kill), nor is this unreasonable; for a man, who does not have power over himself, does not seem to have < anyone>in his own power.

Paulus Sententiae 2.26.2. Filius familias pater si filiam in adulterio deprehenderit, verbis quidem legis prope est, ut non possit occidere: permitti tamen ei debet, ut occidat. Translation: If a son under potestas, who is the father, should surprise his daughter in the act of adultery, it is required by the terms of the law that he cannot kill her; however, he ought to be permitted to do so.

Cf. also Collatio 4.12.2 (Paulus), which has the same wording except for permittitur tamen etiam ei, ut occidat.

^85. See preceding fn. The fact that patria potestas is the pivotal institution in this context is also documented by the following source:

Dig. 48.5.24(23).1 (Ulpianus libro 1 de adulteriis). Sufficit patri, si eo tempore habeat in potestate, quo occidit, non quo in matrimonio collocavit: finge enim postea redactam in potestatem. Translation: It is enough for the father if he has < his daughter>in potestas at the time when he kills her, not at that when he gave her in marriage; suppose here that she was subsequently taken back into power.

^86. Dig. 48.5.24(23).2–3 (Ulpianus libro 1 de adulteriis). 2. Quare non, ubicumque deprehenderit pater, permittitur ei occidere, sed domi suae generive sui tantum, illa ratio redditur, quod maiorem iniuriam putavit legislator, quod in domum patris aut mariti ausa fuerit filia adulterum inducere. 3. Sed si pater alibi habitet, habeat autem et aliam domum, in qua non habitet, deprehensam illo filiam, ubi non habitat, occidere non poterit. Translation: 2. The reason why the father is not allowed to kill his daughter wherever he catches her, but only in his own house or in that of his son-in-law, is said to be that the legislator considered it a more serious outrage for her to dare to bring an adulterer into the house of her father or her husband. 3. But if the father should live elsewhere and have another house in which he does not live, then, if his daughter is caught < in the house>where he does not live, he cannot kill her.

^87. See fn. 52.

^88. Cf. Dig. 48.5.23(22).4 (Papinianus libro 1 de adulteris); Collatio 4.3.1–5 (Paulus) and Collatio 4.10.1 (Papinianus) in fn. 107.

^89. On the topic of morals and the sanctity of the house see for example Vigorita (2002, pp. 25–55).

^90. The husband was unable to hold manus as long as he was still under patria potestas. Then he himself would not be a party to the transfer of manus-potestas, but the holder of patria potestas in the husband's family – quite probably the wife's father-in-law. For manus see supra section 2 and fns. 91–94.

^91. Gaius Institutiones 1.114; 1.115b; 1.118; 1.136; 2.139; 2.159; 3.3.

^92. Gaius Institutiones 1.113. Coemptione vero in manum conveniunt per mancipationem, id est per quandam imaginariam venditionem; nam adhibitis non minus quam V testibus civibus Romanis puberibus, item libripende, emit eum < mulier et is>mulierem, cuius in manum convenit. Translation: By coemptio women are conducted into their husband's manus by way of mancipatio, that is, by a kind of fictitious sale; for the man purchases the woman who comes into his manus in the presence of not less than five witnesses, who must be Roman citizens over the age of puberty, and also of a balanceholder.

Mancipatio and its modifications are applied in order to dispose of res mancipi (primarily slaves, cattle and real estate), but also of free persons. Cf. Gaius Institutiones 1.120 et seq.

Coemptio transfers the wife into manus, but her position is better than being in mancipio: Gaius Institutiones 1.123. […] quidem, quae coemptionem faceret, non redigitur in servilem condicionem, at a parentibus et a coemptionatoribus mancipati mancipataeve servorum loco constituuntur, adeo quidem, ut ab eo, cuius in mancipio sunt, neque hereditates neque legata aliter capere possunt, quam < si>simul eodem testamento liberi esse iubeantur, sicuti iuris est in persona servorum […]. Translation: A woman who experiences coemptio will not be subjected to a servile condition, whereas mancipated men and women will be put in slave-like positions by their fathers and coemptionatores – with the effect that they cannot take either an estate or a legacy under the will of the person in whose mancipium they are, unless they have been ordered to be free by the same will as the law provides for a slave […].

^93. Apart from conventio in manum, manus could be established by confarreatio – a sacral procedure, probably confined to patricians – and usucapio, acquisitive prescription. Gaius describes them briefly and adds that usucapio had fallen into disuse. Cf. Gaius Institutiones 1.110–112. Justinian's compilation mentions none of them.

^94. Gaius Institutiones 1.136. […] Hoc tamen tempore coemptione facta mulieres omni modo potestate parentis liberantur […]. Translation: Today, though, once the coemptio is accomplished, women are by all means freed from patria potestas. For a palaeographic discussion of Gaius Institutiones 1.136 see Manthe (2004, p. 88).

A divorce makes the ex-husband's manus obsolete; if the ex-wife's pater familias is still alive, the patria potestas over his daughter will be revived by a transaction of remancipare. On remancipatio in the context of adoptio cf. Gaius Institutiones 1.134.

^95. Although divorce is easier to explain when the wife stayed under her father's (or grandfather's) patria potestas or was even sui iuris during her marriage, there is no evidence that a wife in her husband's (or father-in-law's) manus was not able to divorce. If she was called back to her original family and thus moved out of the marital household, it would be difficult to ignore her own and her family's ascertainment of divorce. Cf. Gaius Institutiones 1.137a; see Treggiari (1991b, p. 459).

^96. Cod. 8.38(39).2 (Imperator Alexander Severus). Libera matrimonia esse antiquitus placuit. Ideoque pacta, ne liceret divertere, non valere et stipulationes, quibus poenae inrogarentur ei qui divortium fecisset, ratas non haberi constat. Alex. A. Menophilo. Anno 223 pp. III non. febr. Maximo II et Aeliano conss. Translation: Since time immemorial it has been upheld that marriages are free. Therefore it is certain that agreements to forbid divorce are not valid and stipulations by which fines are imposed on the one who divorced are not accepted. Emperor Alexander to Menophilus, issued in the year 223 on day 3 before the nonae of February ( = February 3^rd), Maximus II and Aelianus being consuls.

^97. See for example Treggiari (1991a, pp. 31–46). Treggiari ibidem 43: ‘Divorce is often linked with rapid and advantageous remarriage […]’; Corbier (1991, pp. 57–63).

^98. Dig. 24.1.32.13 (Ulpianus libro 33 ad Sabinum) […] non enim coitus matrimonium facit, sed maritalis affectio […]. Translation: Since it is not sexual intercourse that constitutes matrimony, but maritalis affectio.

Remarkably enough, fathers’ pressure or even coercive disposition which made their children marry was not considered to exclude affectio maritalis. Cf. for example Dig. 23.2.22 (Celsus libro 15 digestorum). Likewise, fatherly power was able to terminate a marriage until Antoninus Pius. He forbade fathers to end a marriage that was a bene concordans matrimonium. Cf. Paulus Sententiae 5.6.15.

^99. Legal procedures were required for creating a husband's or father-in-law's manus. If the marriage broke up, manus had to be deleted; then the woman found herself sui iuris – if her father had died in the meantime – or under the revived regime of her father's (or grandfather's) potestas. See fn. 94.

^100. The actio rei uxoriae effected the return of the dowry capital after termination of marriage. In the case of divorce, the wife or the donor of the dowry would be able to claim restitution. Cf. for example Ulpianus Epitome 6.6 et seqq; see for example Gardner (1986, pp. 105–109).

^101. The Romans’ patrilineal agnatic kinship was defined by the act of begetting within matrimony. The legitimate child was agnatically related to his father, his legitimate brothers and sisters, to the agnatic offspring of his grandfather, and so on – but not to his mother (unless the mother had become subordinated to her husband's or father-in-law's manus) nor to illegitimate offspring stemming from his father or his mother. Thus, a transfer into manus created an agnatic relationship to the husband and his agnatic relatives, as did adoption. For the founding of manus by way of conventio see fns. 92–94.

^102. Corbier (1991, p. 60): ‘In Rome at the end of the Republic and in the early imperial period, the instances of divorce one can find often seem to be a matter of familial obligation. The decision of male relatives (father, brother, uncle, stepfather) seems to have been the determining factor for women’.

^103. The principle libera matrimonia esse antiquitus placuit puts a strong emphasis on the affectio maritalis procured by the spouses (see fn. 98). However, before Antoninus Pius (see fn. 98) it was evidently in a father's potestas to withdraw his child from the child's marriage.

^104. See fn. 97. There are a number of cases in which pregnancy was no reason to suspend divorce and remarriage – for example recently divorced Augustus married the recently divorced and pregnant Livia; see Corbier (1991, p. 59).

^105. Being sui iuris means enjoying legal autonomy. A person sui iuris is not in potestate nor in manu nor in mancipio. See supra section 2.

If the wife and her husband were alieni iuris – the wife in manus or in patria potestas, the husband in patria potestas – they were not able to hold property, therefore could not be donors or recipients of property conveyances.

^106. See fn. 100.

^107. Dig. 48.5.23(22).4 (Papinianus libro 1 de adulteris) Ideo autem patri, non marito mulierem et omnem adulterum remissum est occidere, quod plerumque pietas paterni nominis consilium pro liberis capit: ceterum mariti calor et impetus facile decernentis fuit refrenandus. Translation: The reason why the father and not the husband is allowed to kill the woman and any adulterer is that, for the most part, the fatherly pious commitment gives consideration to the children. Thus, the rage and attack of a husband readily jumping to a decision should be restrained.

Collatio 4.3.1–5 (Paulus) emphasises that the husband is not entitled to kill his adulterous wife, but goes on to mention slaves, certain freedmen, paid gladiators and other persons of minor social esteem, who – being adulterers – can legally be killed by the husband.

The following rescriptum, issued by Alexander Severus and adopted by the Codex Iustinianus, presents quite credibly such a case in which the husband killed an adulterer of low social rank. Remarkably enough, the decision distinctly extends the legitimising effect to sons of the killer whom he somehow caused to support him in his act of killing.

Cod. 9.9.4 pr (Imperator Alexander Severus). Gracchus, quem Numerius in adulterio noctu deprehensum interfecerit, si eius condicionis fuit, ut per legem Iuliam impune occidi potuerit, quod legitime factum est, nullam poenam meretur: idemque filiis eius qui patri paruerunt praestandum est. Alex. A. Iuliano Procons. narbonensis. Translation: If Gracchus, whom Numerius grasped in adultery at night and killed, was in the condition that according to the lex Iulia he could be killed unpunished, he < Numerius>receives no punishment, because it happened lawfully. The same must be applied to his sons who obeyed the father. Emperor Alexander to Iulianus, Proconsul narbonensis.

Collatio 4.3.6 (Paulus) cites Marcus Aurelius and Commodus for having ordered lenient punishment as well as Antoninus for having pardoned husbands who illegally killed adulterers – pointing out the rash fervour which motivated the killing. Similarly, Collatio 4.10.1 (Papinianus) underlines that the husband is not entitled to kill his adulterous wife, but since he acted in most honourable fury – honestissimo calore – the sanction should be exile instead of capital punishment or deportation. Cf. also Collatio 4.12.3–4 (Paulus); Cod. 9.9.4.1 (Alexander Severus).

^108. This is to be inferred from Dig. 48.5.23(22).4 (see preceding fn.).

^109. For the construction of agnatic family ties see supra section 2 and fn. 101.

^110. Lucretia's story affords an exemplum of this kind of cheating: Sextus Tarquinius tells Lucretia he would kill her and a slave and then explain that he had discovered and punished an incident of adultery. This threat of being dishonoured without a chance to correct the false arrangement makes Lucretia give way to him (Livius, Ab Urbe Condita 1.58).

^111. See fn. 100.

^112. Adultery was definitely a reason for the former husband to claim the propter mores reduction. Cf. for example Ulpianus Epitome 6.9, 6.12.

^113. The species of dos adventicia entitles the husband to retain the dowry after his wife's death. Ulpianus Epitome 6.4-5. 4. Mortua in matrimonio muliere dos a patre profecta ad patrem revertitur, quintis in singulos liberos in infinitum relictis penes virum. Quod si pater non sit, apud maritum remanet. 5. Adventicia autem dos semper penes maritum remanet, praeterquam si is qui dedit, ut sibi redderetur stipulatus fuerit: quae dos specialiter recepticia dicitur. Translation: 4. If the wife died during the marriage, the dowry is returned to the father who supplied it; for each child remains one fifth with the husband, without limit. But if there is no father, it < the dowry> remains with the husband. 5. The dos adventicia always remains with the husband – unless the person who gave it stipulated that it should be returned; this dos is specifically called recepticia.

^114. See fns. 52, 107.

^115. See section 2.1. When a woman sui iuris married, she had the option to submit to her husband's manus. Then neither her father nor her grandfather, but she herself would be the party to the conventio in manum. See fns. 91–94.

^116. If the conveyer (for example a seller) transferred the object to the recipient (for example a buyer) by way of mancipatio and afterwards the recipient lost a lawsuit in which a third person had asserted ownership of the object, the actio auctoritatis entitled the recipient to recover twice the price from the conveyer; cf. Paulus Sententiae 2.17.1–3.

^117. Numerous legal provisions concerned the due diligence that had to be observed when administering tutela minoris. The respective remedy to scrutinise the guardian's accounts and his management of the minor's property was the actio tutelae; cf. for example Dig. 27.3, Cod. 5.51.

^118. See supra sections 2, 3 and 5.

^119. For the father disposing over his daughter eo auctore cf. Collatio 4.2.3 (Paulus), Collatio 4.7.1 (Papinianus).

^120. This corresponds to the concept that upon her divorce the wife was released from her husbands manus but relapsed in to her father's patria potestas (see fns. 94, 99); see for example Kaser (1971, pp. 83, 327). Cf. Gaius Institutiones 1.137, which requires a mancipatio to terminate manus and to transfer the former wife back to her paterfamilias; in order to make her sui iuris, the paterfamilias must afterwards manumit her by way of a mancipatio.

In contrast to this, emancipatio (see section 2) made the daughter sui iuris and ruled out the possibility that former bonds of patria potestas were revived. Once sui iuris, the woman herself could opt for submission to manus or for adoptio. In such cases, she was party to the respective (in detail complicated) procedures that changed her status.

^121. Note that the auctoritas-based liabilities of mancipatio and tutela (see fns. 116–117) required that the respective action was taken: the actio auctoritatis and the actio tutelae.

^122. See Rizzelli (2003a, p. 230, fn. 101).

^123. See for example Robinson (1995, pp. 60–61); Mette-Dittmann (1991, p. 35).

^124. Unlike most of today's judicial decisions, Roman jurists’ opinions were, as a rule, published in this kind of a neutralised form which impedes historical identification: where this style is common – for example in the Justinian's Digest, not in his Codex – the lack of data on actual occurrences rarely lets us distinguish real cases from hypothetical ones.

See for example Schulz (1936, pp. 40 et seqq).

^125. Dig. 48.5.33(32) pr (Macer libro 1 de publicis iudiciis). See fn. 77; also fn. 47.

^126. This ambiguous impression may have to do with the shifting role of the Roman jurists adapting to the changes in the Roman state (see for example Millar, 1977, pp. 83–110). Being lawyers of the consolidating empire, their productive field of work tended to turn to the governmental focuses of the new regime such as the newly established adultery-quaestiones and lose interest in a remnant clan jurisdiction like the father's ius occidendi.

Augustus’ introduction of quaestiones for adulterium was a substantial change of the legal system. The jurists did not resist this change, but developed primarily what the statute had set as its primary objective – the provisions concerning the quaestiones. They possibly considered the ius occidendi a curiosity which inspired them to some speculative case discussions. See for example Schulz (1946, pp. 112–118, 152–154).

^127. See supra section 4.2.

^128. William Shakespeare, The Merchant of Venice, Act 4, Scene 1, 335–338.

^129. See fn. 86.

^130. See fn. 76.

^131. See fn. 72. Cf. Cod. 9.9.4 pr. (fn. 107) which extends the husband's liberty to kill an adulterer of low social status to sons who have obediently supported the father's killing.

^132. Collatio 4.9.1 (Papinianus). But if the daughter fled and thus survived, the father may have a considerable defence, since he did not want to spare the daughter, but could not manage to kill her – […] pater non ideo servavit filiam, quia voluit, sed quia occidere eam non potuit. See Gardner (1986, p. 130), ‘In practice, though, the requirement to kill both was likely to be a deterrent to killing either, and that may have been Augustus’ intention’ (footnote deleted).

^133. See fn. 46 with the provision that having killed the thief at night or the thief who had defended himself with a weapon required that the course of events was testified to by screams.

^134. The husband's house would then be the correct legal qualification, because conveyances in consideration of the dowry transfer ownership to the husband. Cf. for example Dig. 23.3.69.8 (Papinianus libro 4 responsorum). In dotem rebus aestimatis et traditis, quamvis eas mulier in usu habeat, viri dominium factum videretur. Translation: Property items which have been valued and conveyed as dowry are deemed to have become the husband's dominium even though the wife uses them.

For the restoration of the dowry after marriage see fns. 100, 113.

^135. In shaping his marriage legislation, Augustus seems to have been quite inventive and optimistic. Although adjustments and exceptions were subsequently introduced, the Augustan marriage legislation exerted a grave impact for centuries.

^136. For the Roman fathers’ ius vitae necisque see supra section 4.1.

See for example Gaughan (2010, p. 52): ‘The actual execution of vitae necisque potestas may have been practiced seldom, but its ideological strength and method for understanding the role of individual citizens to the community as a whole and to the res publica remained potent for centuries. The stability of the family and the stability of the res publica were intertwined, and a primary element of this connection was the power a Roman father possessed to kill his own children. Vitae necisque potestas was a stabilizing force for the republic’.

^137. See supra section 9.

^138. See supra section 5.

^139. For Julius Caesar cf. Suetonius, Divus Julius 76, for Augustus cf. Augustus, Res Gestae 35. See Strothmann (2000, pp. 73 et seqq). See fn. 71.

^140. Augustus Res Gestae 34; see for example Cooley (2009, pp. 256–272).

For Augustus’ endeavours to consolidate his autocratic power project as well as his struggle with resistance and deficiencies see for example Dettenhofer (2000, pp. 60–184). For the transformation of the Roman Empire into an absolutist monarchy see for example Schulz (1946, pp. 262–329); Cameron (1993, pp. 30–46).

^141. See for example Kelly (1957).

Imperial court jurisdiction was formally established by Augustus’ successors, but may still be envisaged as an option of the early principate. See for example Bleicken (1962, pp. 81–97).

^142. The Northern Nigerian trial of Amina Lawal, who was accused of adultery under Shariah law in 2002, raised international criticism for grossly infringing the rules of a fair criminal procedure. After being divorced, Amina Lawal became pregnant. According to a certain interpretation of Shariah law, the court sentenced her to death by stoning. The execution could not take place during the period when she was breastfeeding her baby. Eventually, international reports effected an appeal ruling in 2003 which overturned the sentence. The international criticism pointed out that the prosecution of the baby's father was dropped while Amina Lawal was convicted, that she was refused adequate opportunities of defence and that there had been procedural errors at her original trial. See for example Coleman (2003); Note in the Harvard Law Review (2004).

^143. Eyben (1991, pp. 114–143) discerns a broad range of attitudes that Roman parents displayed in the education of their children.

^144. Recent studies and political awareness have revealed the family as a likely place of violence, which is mainly directed against women and children. As a reaction to this, the traditional claim to familial privacy is nowadays more critically assessed and an increased control of public institutions has been established, dedicated to the goal of preventing this type of violence.

^145. Collatio 4.4.1–2 (Paulus). See fns. 65–66.

^146. Cod. 9.9.29(30).4 (Constantinus 326 A.D.) provides capital punishment for adultery.

^147. Paulus Sententiae 2.26.14. For the range of sanctions that ensued from adultery see for example Robinson (1995, pp. 66–67).

^148. Paulus Sententiae 2.26.14. The wife was deprived of half of her dowry and a third of her patrimony, the adulterer half of his patrimony. For the husband's retentiones propter mores see fn. 112; see also fn. 100.

^149. The sentence for adultery made the woman incapable of entering into a new marriage. Cf. Dig. 23.2.26 (Modestinus libro 5 responsorum); Dig. 48.5.30(29).1 (Ulpianus libro 4 de adulteriis); Cod. 9.9.9 (Alexander Severus 224 A.D.); Cod. 9.9.17.1 (Valerianus and Gallienus 257 A.D.). (Valerianus and Gallienus 257 A.D.). Being unmarried could mean another handicap, because the Augustan marriage legislation excluded celibates within a certain age range from receiving property bestowed to them by will; see fn. 67.