Roman Laws and Crimes of Passion.

[barca]

I recently watched the final episode of Game of Thrones where in a fit of rage the dwarf violently attacks and strangles his former lover because she had betrayed him. 

 

I found that numerous individuals felt that such an act was completely justified, because it was a crime of passion, and in their estimation she deserved what she got.

 

And I know that their setting isn't Ancient Rome, but here's my question. Did the Ancient Romans show forgiveness or leniency in such cases? I would think not, since the governing philosophy of the Romans was that of Stoicism, at least during the reign of the Antonines.

[Viggen]

...as you said, much would depend on circumstance and time period, but in general i am pretty sure that roman society didnt loose a sweat when a "patrician" strangled a slave...

[caldrail]

Until Claudius a Roman owner could kill a slave or dispose of him as required. Claudius was moved by the sight of sick slaves left to die and began humanitarian legislation aimed at restricting the excesses of slave owners. Further restrictions were enacted in later reigns. It is true however that much reputation in high society was placed upon generosity and benign ownership, usually expressed by patronism or manumission. A cruel owner would suffer the poor opinion of the public if he killed slaves so angrily.

 

One young man was caught with a householders wife. He protested innocence, claiming he thought the woman to be one of the man's slaves, whom he had gotten interested in. Had the youngster been found guilty of banging the man's wife, he was liable for some very tough treatment. However, as he had only transgressed property rights by attempting to have sex with another mans slave, he was merely fined. A liucky escape... But it appears this sort of excuse was commonplace.

 

I remember a case where a woman had fallen to her death from an upstairs window. because a fierce row had been heard immediately before, the husband was found guilty of throwing her from the window and dealt with. There is of course the mention of a law in which if a slave killed his master, all slaves in the household were to be executed to dissuade other such occurences. Unfortunately, the public thought this was outrageous, depsite being legal, and the magistrates did not order the deaths. However, it was noted that when Nero held a party on a barge fitted out as a sort of virtual red light district street, a few of the high class women acting as prostitutes were found murdered and presumed to be victims of the slaves who had been allowed to partkae of their mistresses. No-one was tried for the crimes.

[Onasander]

Never watched the game of thrones, but spent half this month buried in a stoic ethics work by Arius Didymus, and just listened to Plato's Republic for the umpteenth time today while working....

 

I think the Roman Stoics would allow a lawfully wedded wife be strangled by her husband during certain Roman eras.... but not a lover. A slave, yes.... but less out of indifference and more from incapacity to prosecute.

 

Greeks had it set up prior to the Roman invasion that people overly beating their slaves or killing them could be prosecuted.... less out of concern for the slave than a citizen loosing control.

 

Roman citizens could be made debt slaves, retaining their citizenship. If a young boy who was pledged as debt by his father to another was beaten to death for straying sexually from him, I think the senate would of been massacred by the plebs.

 

Again, stuff shifts era to era, even within Stoicism.... I doubt a Stoic like Jules Evans today would support it for any reason.

[barca]

Thanks for all of your input.

 

In the cases where a master strangles his slave, I can understand (although I don't condone) how he could get away with it, since slaves were considered property.

 

How about the situation where a patrician kills his wife and her lover, who also happens to be a patrician?

[Viggen]

...Maty reviewed a book which fits very nicely with this topic (Murder Was Not a Crime: Homicide and Power in the Roman Republic).

 

intersting titbit from the review; . did you guys know that there is no word for muder in Latin? (from the review)

 

The nearest we get as a noun is 'homicidum', which just means 'killing a man', whether lawfully or unlawfully, deliberately or accidentally. As a verb 'necare' means to kill in a perfidious manner – however Latin has nothing as explicit as 'murder' as a word for premeditated unlawful killing in any form of grammar.

[Onasander]

There was a process for suing over slaves and cattle being slain..... are we really going to claim roman citizens had less protection that a goat?

 

http://en.m.wikipedia.org/wiki/Lex_Aquilia

 

 

• Lex Cornelia de sicariis et veneficiis (80 BC) – dealing with injuries and deaths obtained by magic

 

• Lex Petronia (?) – prevented a master from sending his slave to the beasts in the amphitheater without authorization

 

 

 

• Lex Porcia (I) (199 BC) – proposed by tribune P. Porcius Laeca to give right of appeal in capital cases
• Lex Porcia (II) (195 BC) – M. Porcius Cato prohibited scourging of citizens without appeal
• Lex Porcia (III) (184 BC) – consul L. Porcius Licinus safeguarded citizens from summary execution on military service, all dealing with right of appeal (provocatio)

 

ex Titia (43 BC) – gave Octavian, Mark Antony and Lepidus full powers to defeat the assassins of Julius Caesar; legalized the second triumvirate

 

Lex Valeria (maybe in 509 BC and 449 BC or 300 BC) – it granted every Roman citizen legal right to appeal against a capital sentence, defined and confirmed the right of appeal (provocatio)

 

this is from the 12 tables:

 

Law IV.

Where anyone commits a theft by night, and having been caught in the act is killed, he is legally killed.^[1]

^[1] While the ordinary presumption certainly arises that no one can encounter a desperate malefactor in his house at night without incurring risk of serious injury; still, the Roman jurists, in enacting this provision, evidently had in view the prevention of homicide except when absolutely necessary, even under circumstances which might justify almost any violent act in the defence of life and property. Other lawgivers, generally speaking, did not recognize such nice distinctions.

The rule, somewhat modified, has been adopted by the majority of subsequent judicial systems as being thoroughly consonant with the principles of justice. It was incorporated, with but slight alteration, into the Visigothic Code, and Las Siete Partidas. "Fur nocturnus captus in furto, dum res furtivas secum portare conatur, si fuerit occisus, mors eius nullo modo vindicetur." (Forum Judicum, VII, II, 16.) "Otro tal decimos quo seria, si algun one /allasse algun ladron de noche en su casa, e lo quisiesse prender para darlo a la justicia del lugar, si el ladron se amparasse con armas. Ca entonce, si lo matare, non cæ por esso en pena." (Las Siete Partidas, VII, VIII, 3.) As stated above, to render the modicide justifiable, the Visigoths required that the thief should be in possession of the stolen property; and the Castilian law provided that he should be armed and resist arrest while in the house of the owner. Under the law of Athens, a thief taken flagrante delicto, at night, could be killed with impunity. (Potter, Antiquities of Greece, I, 24, 126.)

With the Jews, homicide was not punishable when the culprit was killed under circumstances essential to constitute the crime known to us as burglary. "If a thief be found breaking up, and he be smitten that he die. no blood shall be shed for him; but if the sun be risen upon him, there shall blood be shed for him; for he should have made full restitution." (Exodus XXII, 2.)

With the Anglo-Saxons, a thief caught in the act, at any time, either by day or by night, could be slain with impunity. "He who slays a thief must declare on oath that he slew him offending." (Ancient Laws and Institutes of England; Laws of King Ine, 16.)

This principle does not appear to have been accepted in the earliest age of the Common Law. Glanvil does not mention it. Bracton, however, refers to it as being sound, and applicable by day or by night, without regard to place, if the homicide, at the time, could not avoid serious personal injury. "Qui latronem occiderit, non tenetur, nocturnum vel diurnum, si aliter periculum evadere non possit." (Bracton, De Legibus et Covsuetudinibus Angliæ, III, 155, 36.)

Fleta says: "Quicunqiie enim furem nocturnum interfecerit, non teneatur, & qui invasorem domus suæ, se ipsum & hospitium suum saltem illa hora defendendo interfecerit, juste interficit." (Fleta, Commentarius Juris Anglicanæ, I, XXIII, 14.) This applied not only to a burglar, but to anyone found in the "curtilage," or enclosure containing the residence, at any hour between nine P. M. and six A. M.; and under these conditions, homicide was authorized either in self-defense, or when it occurred in an attempt to arrest the intruder, or was committed in order to prevent his escape. The necessity for the homicide must be absolute in order to render it justifiable. "Si necessitas evitabilis fuerit, absque occasione, reus est homicidii, qui si fuerit inevitabilis, ad pœnam homicidii non tenebitur, eo quod felonice non occidit." (Ibid. I, 23.) It is held by Coke that the act of killing must be in self-defence, and be preceded by violent aggression on the part of the thief. "If a thiefe offer to rob or murder B, either abroad or in his house, and thereupon assault him, and B, defend himself without any giving back, and in his defence killeth the thiefe; this is no felony." (Coke, Institutes of the Laws of England, Vol. IV, Ch. 8.)

This doctrine is explicitly set forth in Stat. 24, Hen. VIII, Chap. 5. "If any person do attempt to break any mansion-house in the night time, and shall happen to be slain by any person or persons, etc. (tho a lodger or servant) they shall upon their trial be acquitted and discharged." The above mentioned Statute, as is held by a high authority, may be construed to apply to an illegal act of this kind committed during the day with felonious intent "It seems it extends not to a braking the house in the day-time, unless it be such a braking, as imports with it, apparent robbery, or an intention or attempt thereof." (Hale, The History of the Pleas of the Crown, I, XL, Page 488.)

This was also the rule in Scotland, "It is lawful to kill a Thief, who in the night offers to break our Houses, or steal our Goods, even though he defend not himself, because we know not but he designs against our Life; and Murder may be easily committed upon us in the night, but it is not lawful to kill a Thief who steals in the day time, except he resist us when we offer to take him, and present him to Justice." (Mackenzie, The Laws and Customes of Scotland in Matters Criminal, I, XI, III.) The general rule, while well established, was formerly, to a certain extent, so far as its application is concerned, largely dependent upon the circumstances of each particular case. No distinction was made between an invasion of the house and an attack upon the person, provided the alarm experienced by the homicide was considered to be so well founded as to justify his act. In some respects great latitude was allowed the injured party. "The same right of defending our property, may also justify our killing a thief, or predonious invader, in the act of running away with our goods, if he cannot otherwise be taken, or the goods secured." (Burnett, A Treatise on the Criminal Law of Scotland, I, page 57.)

The laws of France and Italy excuse the homicide of an intruder who commits burglary or theft with violence. (Code Pénal de France, III, II, Arts. 322, 329.) (Codice Penale, II, III, Art. 376.)

In the United States, killing is only justifiable where the crime could not otherwise have been prevented, and where force is employed. When an attempt is made to commit a secret felony, without violence, the right does not exist. It is different, however, where the precincts of a man's home are invaded in the daytime, or at night. "An attack on a house or its inmates may be resisted by taking life. This may be when burglars threaten an entrance, or when there is apparent ground to believe that a felonious assault is to be made on any of the inmates of the house, or when an attempt is made violently to enter the house in defiance of the owner's rights."

"But this right is only one of prevention. It cannot be extended so as to excuse the killing of persons not actually breaking into or violently threatening a house." (Wharton, A Treatise on Criminal Law, Secs. 629, 630, 634, 635.) — Ed.

 

Where anyone commits a theft by night, and having been caught in the act is killed, he is legally killed.^[1]

^[1] While the ordinary presumption certainly arises that no one can encounter a desperate malefactor in his house at night without incurring risk of serious injury; still, the Roman jurists, in enacting this provision, evidently had in view the prevention of homicide except when absolutely necessary, even under circumstances which might justify almost any violent act in the defence of life and property. Other lawgivers, generally speaking, did not recognize such nice distinctions.

The rule, somewhat modified, has been adopted by the majority of subsequent judicial systems as being thoroughly consonant with the principles of justice. It was incorporated, with but slight alteration, into the Visigothic Code, and Las Siete Partidas. "Fur nocturnus captus in furto, dum res furtivas secum portare conatur, si fuerit occisus, mors eius nullo modo vindicetur." (Forum Judicum, VII, II, 16.) "Otro tal decimos quo seria, si algun one /allasse algun ladron de noche en su casa, e lo quisiesse prender para darlo a la justicia del lugar, si el ladron se amparasse con armas. Ca entonce, si lo matare, non cæ por esso en pena." (Las Siete Partidas, VII, VIII, 3.) As stated above, to render the modicide justifiable, the Visigoths required that the thief should be in possession of the stolen property; and the Castilian law provided that he should be armed and resist arrest while in the house of the owner. Under the law of Athens, a thief taken flagrante delicto, at night, could be killed with impunity. (Potter, Antiquities of Greece, I, 24, 126.)

With the Jews, homicide was not punishable when the culprit was killed under circumstances essential to constitute the crime known to us as burglary. "If a thief be found breaking up, and he be smitten that he die. no blood shall be shed for him; but if the sun be risen upon him, there shall blood be shed for him; for he should have made full restitution." (Exodus XXII, 2.)

With the Anglo-Saxons, a thief caught in the act, at any time, either by day or by night, could be slain with impunity. "He who slays a thief must declare on oath that he slew him offending." (Ancient Laws and Institutes of England; Laws of King Ine, 16.)

This principle does not appear to have been accepted in the earliest age of the Common Law. Glanvil does not mention it. Bracton, however, refers to it as being sound, and applicable by day or by night, without regard to place, if the homicide, at the time, could not avoid serious personal injury. "Qui latronem occiderit, non tenetur, nocturnum vel diurnum, si aliter periculum evadere non possit." (Bracton, De Legibus et Covsuetudinibus Angliæ, III, 155, 36.)

Fleta says: "Quicunqiie enim furem nocturnum interfecerit, non teneatur, & qui invasorem domus suæ, se ipsum & hospitium suum saltem illa hora defendendo interfecerit, juste interficit." (Fleta, Commentarius Juris Anglicanæ, I, XXIII, 14.) This applied not only to a burglar, but to anyone found in the "curtilage," or enclosure containing the residence, at any hour between nine P. M. and six A. M.; and under these conditions, homicide was authorized either in self-defense, or when it occurred in an attempt to arrest the intruder, or was committed in order to prevent his escape. The necessity for the homicide must be absolute in order to render it justifiable. "Si necessitas evitabilis fuerit, absque occasione, reus est homicidii, qui si fuerit inevitabilis, ad pœnam homicidii non tenebitur, eo quod felonice non occidit." (Ibid. I, 23.) It is held by Coke that the act of killing must be in self-defence, and be preceded by violent aggression on the part of the thief. "If a thiefe offer to rob or murder B, either abroad or in his house, and thereupon assault him, and B, defend himself without any giving back, and in his defence killeth the thiefe; this is no felony." (Coke, Institutes of the Laws of England, Vol. IV, Ch. 8.)

This doctrine is explicitly set forth in Stat. 24, Hen. VIII, Chap. 5. "If any person do attempt to break any mansion-house in the night time, and shall happen to be slain by any person or persons, etc. (tho a lodger or servant) they shall upon their trial be acquitted and discharged." The above mentioned Statute, as is held by a high authority, may be construed to apply to an illegal act of this kind committed during the day with felonious intent "It seems it extends not to a braking the house in the day-time, unless it be such a braking, as imports with it, apparent robbery, or an intention or attempt thereof." (Hale, The History of the Pleas of the Crown, I, XL, Page 488.)

This was also the rule in Scotland, "It is lawful to kill a Thief, who in the night offers to break our Houses, or steal our Goods, even though he defend not himself, because we know not but he designs against our Life; and Murder may be easily committed upon us in the night, but it is not lawful to kill a Thief who steals in the day time, except he resist us when we offer to take him, and present him to Justice." (Mackenzie, The Laws and Customes of Scotland in Matters Criminal, I, XI, III.) The general rule, while well established, was formerly, to a certain extent, so far as its application is concerned, largely dependent upon the circumstances of each particular case. No distinction was made between an invasion of the house and an attack upon the person, provided the alarm experienced by the homicide was considered to be so well founded as to justify his act. In some respects great latitude was allowed the injured party. "The same right of defending our property, may also justify our killing a thief, or predonious invader, in the act of running away with our goods, if he cannot otherwise be taken, or the goods secured." (Burnett, A Treatise on the Criminal Law of Scotland, I, page 57.)

The laws of France and Italy excuse the homicide of an intruder who commits burglary or theft with violence. (Code Pénal de France, III, II, Arts. 322, 329.) (Codice Penale, II, III, Art. 376.)

In the United States, killing is only justifiable where the crime could not otherwise have been prevented, and where force is employed. When an attempt is made to commit a secret felony, without violence, the right does not exist. It is different, however, where the precincts of a man's home are invaded in the daytime, or at night. "An attack on a house or its inmates may be resisted by taking life. This may be when burglars threaten an entrance, or when there is apparent ground to believe that a felonious assault is to be made on any of the inmates of the house, or when an attempt is made violently to enter the house in defiance of the owner's rights."

"But this right is only one of prevention. It cannot be extended so as to excuse the killing of persons not actually breaking into or violently threatening a house." (Wharton, A Treatise on Criminal Law, Secs. 629, 630, 634, 635.) — Ed.

 

I gotta go, only a bit of the way into this....

 

Obviously, the Romans had laws on this.