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.