How To Get Away with Murder
Contradictions in Roman law left incurable headaches for its judges.
In 176 BC a strange but revealing murder case came before the Roman praetor, M. Popillius Laenas. A woman, unnamed in the sources, was brought before the court on the charge of murdering her mother by bludgeoning her with a club. The woman happily confessed to the monstrous act of matricide. Her fate, then, seemed sealed when she entered Laenas’ court; but she introduced a defence that was as irrefutable as the wickedness of the killing of a parent. She claimed that the deed had been a crime of grief-fuelled vengeance resulting from the deaths of her own children. They, she said, had been deliberately poisoned by her mother simply to spite her and her own actions were therefore justified.
This defence caused the entire system to grind to a halt. The situation was an appalling paradox. In Roman culture, parricide was a crime that provoked a unique horror; there was nothing worse than murdering a parent. The typical punishment was a bizarre form of the death penalty, which involved the perpetrator being sewn into a sack with a monkey, a snake, a dog and a chicken and then thrown into the Tiber to drown. The purpose of the animals is unclear; the purpose of the sack was to deprive the murderer of the air and water, and prevent their bones from touching and defiling the earth. It was impossible to imagine a confessed parricide being left unpunished. Rome, however, had a predominantly self-help justice system, where private families and individuals investigated and punished slights against themselves. It was not the role of the state, particularly during the time of the Republic (510-27 BC), to interfere with such private matters as a vengeance killing within the family. The right independently to enact justice, especially when avenging the death of your own children, was central to the Roman conception of a just world. It was, therefore, equally impossible to imagine such a killing being punished.
For Laenas, the situation was a nightmare. For most of Republican history there was no formal law criminalising homicide: the Roman government was so deliberately decentralised that it did not see itself as a state which was harmed by private homicide. The murder of a private person did not affect the various magistrates’ power, and therefore the state need not interfere.
Therefore, if he punished a woman who had acted, in the depths of her grief for her children, to justly avenge their murder, then he would be passing judgment on all such killings and suggesting that vengeance killings were criminal. This could not be countenanced.
There was, however, one major exception to this rule: parricide. This was one of the few forms of homicide considered to be so despicable that a public trial would be held. Even hitting a parent was considered to be indefensible in any circumstances. For Laenas to allow a parricide to go unpunished would be to publicly suggest that there were times in which it was justifiable to murder one’s parents – and this, too, was untenable. Laenas was trapped in a paradox. In the words of Valerius Maximus, who recorded this case: ‘The first murder was judged to be deserving of vengeance, the second not deserving of acquittal.’
Western law allows for degrees of culpability. In a British court, for example, such a scenario would perhaps end in a manslaughter or lesser murder charge. Roman law, however, did not. There could be no shades of grey. In the end, Valerius claims that Laenus neither acquitted nor condemned the woman, but beyond that the verdict was not recorded and we will never know what happened to her.
This was not the only time that such a dilemma happened in the Republic.
Almost a century later, in the province of Asia, the proconsul Publius Dolabella was presented with a woman from Smyrna. She was brought before him in his role as a judge because she had killed both her husband and son with poison. As with the Roman matricide, she readily confessed her crime with little remorse. And, as with the Roman matricide, her victims had murdered her own child: her husband and son had killed her son from her previous marriage for reasons unrecorded. Dolabella was trapped, unable to acquit a woman who had clearly killed her own husband and child, but equally unable to condemn a woman who had been avenging the murder of her son. Incapable of coming to a conclusion by himself, Dolabella found an escape hatch which relieved him of the responsibility of either condemning a justified revenge killing or acquitting a child murderer: he bumped the decision to the ancient and venerable court of the Areopagus in Athens. The court sat on top of the Areopagus rock and had, in legend, exonerated Orestes for the murder of his mother to avenge his father. The judges, however, were unwilling to defy their Roman masters. After hearing the prosecution and the defence, they asked everyone to return to hear their judgment in 100 years’ time, neatly avoiding the need to ever make a decision.
These unusual cases highlight a great deal about death and justice in the Roman world and the limits the state placed on itself in the Republic. It is striking how all the sources that recount Dolabella’s dilemma acknowledge that revenge killings were not to be considered criminal acts and, therefore, how incapable the magistrates were of condemning a revenge killing. These cases, too, leave open the possibility that revenge killings were more common in everyday Roman life than is often imagined. As we see with the woman of Smyrna, private matters were occasionally made public when they were difficult. But it was not until the principate, when the stability and power of the Empire rested on the shoulders of a single man, that murder truly became a crime.
Emma Southon is the author of A Fatal Thing Happened on the Way to the Forum: Murder in Ancient Rome (OneWorld, 2020).