A Study on the Nature and Significance of Husband’s Right to kill his Adulterous Wife in the Augustan Law of Adultery

초록

Restoration of ancestral customs, or at least purgation of decaying morals constituted a final touch in the Augustan programme of consolidating his new regime. Particularly with a view to make the ruling elite to reproduce itself as a steadfast base of the new regime, Augustus legislated in 18~17 B.C. two supplementary laws, one encouraging marriage (lex de maritandis ordinibus), the other penalizing the sexual offences against it (lex de adulteris coercendis). State's intervention into this private sphere of citizens was unprecedented: the princeps attempted to appropriate the sacrosanct rights of all the Roman patres familias. Thus, the jurisdiction over adultery was transferred from domestic court under pater familias to the public court with the concomitant result that adultery became a criminal offence. This change naturally entails the invention of new rules and procedures as well as the proper accommodation of conventional ones. This paper aims to focus on the following points concerning the Augustan Law of Adultery: the way it adapted the husband's conventional right to kill his unfaithful wife and her lover to its purpose; how the adaptation was interconnected with other relevant rules of the law; and finally what was the ultimate intent of the legislator behind them. After careful analysis of the rules in relation with the duty and right of the husband whose wife should commit adultery, the author arrives at the following conclusions: first all, the legislator faced with the conflicting demands: to appropriate the jurisdiction of family court over adultery, and to neutralize the self-help punitive acts such as killing the adulterous lovers taken in flagrante, which could be detrimental, if left to remain, to the authority of public justice, and also could develop into a political sedition confounded with bloody vendettas among ruling elite. Thus, the law privileged the father of the adulterous woman in the right to kill, while making husband's only nominal. Instead, the law enforced the husband to bring the case to the public court, while inducing him with some procedural favors such as the priority in persecution and his lawful resort to torturing slaves for testimonies against their owners, etc.

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