VM Getting Away With Murder The

489Holford-Strevens

I am grateful to Professor Wolfgang Haase, the editor of this journal, for his comments andsome references included below and to Rob C. Wegman and Graham Whitaker for copies ofrare texts.

1. See O. F. Robinson, The Criminal Law of Ancient Rome (London: Duckworth, 1995), 46–7.2. Although a Marcus Popillius Laenas was praetor in 176 BC, the story is usually attached to

his son, consul in 139 BC, and therefore praetor in 142 BC or earlier, but a later namesake isattested; Friedrich Münzer, “Das Konsulpaar von 139 v. Chr.,” Klio, 24 (1931), 333–8. Valerius’language excludes a trial before the people (iudicium populi); the location of the case in this

Leofranc Holford-Strevens, 67 St Bernard’s Road, Oxford OX2 6EJ, United Kingdom.

International Journal of the Classical Tradition, Vol. 7, No. 4, Spring 2001, pp. 489–514.

Getting Away With Murder: TheLiterary and Forensic Fortune ofTwo Roman ExemplaLEOFRANC HOLFORD-STREVENS

Valerius Maximus tells two stories of women who, having killed close relations to avengemurders committed by their victims, were brought before a court but neither acquittednor convicted. Of these stories, the second, concerning a woman from Smyrna whose casewas adjourned by the Areopagus for a hundred years, enjoyed a literary fortune, beingtaken up by Aulus Gellius and from him by Ammianus Marcellinus, John of Salisbury,Rabelais, and Montaigne; the only author to take the woman’s sex into account, John ofSalisbury, held that she was in the wrong. However, it was from Valerius that the twostories passed into sixteenth- and seventeenth-century civilian jurisprudence, which usedthem, without consideration of their subjects’ gender, to illustrate the principle of iustusdolor, or justified grief, as a defence or mitigation in cases of homicide; the Woman ofSmyrna was even exploited, with a misrepresentation of the facts, to defend the conductof Guido Franceschini in the case that gave rise to Browning’s poem The Ring and the Book.

“That nice decision of Dolabella, eh?”(Robert Browning, The Ring and the Book, 1. 230)

Valerius Maximus, in the collection of notable sayings and actions that he dedicated tothe Emperor Tiberius about AD 30, concludes his chapter on notorious criminal trialswith two cases in which judgment was avoided, both concerning the crime known tothe Romans as parricidium, the murder of a close relation but not necessarily a father:1

1. Atque ut eos quoque referamus qui in discrimen capitis adducti neque damnatineque absoluti sunt, apud M. Popillium Laenatem praetorem quaedam, quodmatrem fuste percussam interemerat, causam dixit.2 De qua neutram in partemlatae sententiae sunt, quia abunde constabat eandem ueneno necatorum liberorum

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dolore commotam,3 quos auia filiae infensa sustulerat, parricidium ultam esseparricidio; quorum alterum ultione dignum, alterum absolutione non dignumiudicatum est.

2. Eadem haesitatione P. quoque Dolabellae, proconsulari imperio Asiamobtinentis,4 animus fluctuatus est. Mater familiae Zmyrnaea uirum et filiuminteremit, cum ab iis optimae indolis iuuenem, quem ex priore uiro enixafuerat, occisum comperisset. Quam rem Dolabella ad se delatam Athenas adAreopagi cognitionem relegauit, quia ipse neque liberare duabus caedibuscontaminatam neque punire eam iusto dolore inpulsam sustinebat. Consideranteret mansuete populi Romani magistratus, sed Areopagitae quoque non minussapienter, qui inspecta causa et accusatorem et ream post centum annos ad sereuerti iusserunt, eodem adfectu moti quo Dolabella. Sed ille transferendoquaestionem, hi differendo damnandi atque absoluendi inexplicabilemcunctationem uitabant.5

1. And to record too those who were tried for their lives but neither con-victed nor acquitted: a woman pleaded her case before the praetor MarcusPopillius Laenas because she had beaten her mother to death with acudgel. No votes were cast either way on her, because it was amplyproved that, stirred by grief for her poisoned children, whom their grand-mother had done away with out of hatred for her daughter, she hadavenged murder with murder. Of these (murders), the one was judgedto deserve vengeance, the other not to deserve acquittal.

chapter and not the next suggests a iudicium publicum before a murder-court (quaestio intersicarios) presided over by the praetor but decided by the vote of the jurors (iudices), ratherthan a iudicium priuatum on a demand for the matricide’s surrender to her victim’s kindred,decided by the praetor after non-binding advice from his consilium. It is disputed whetherthe quaestio inter sicarios over which, precisely in 142 BC, the blatantly corrupt L. HostiliusTubulus presided was the subsequently attested standing court (quaestio perpetua) or a spe-cial commission set up in response to some grave breach of public order. See in generalWolfgang Kunkel, Untersuchungen zur Entwicklung des römischen Kriminalverfahrens invorsullanischer Zeit (Abhandlungen der Bayerischen Akademie der Wissenschaften,philosophisch-historische Klasse, NF 56; Munich: Verlag der Bayerischen Akademie derWissenschaften, 1962), 48–51, 98–105.

3. Dolor, though translated “grief,” includes grievance and resentment, not only immediate,and often entails revenge.

4. P. Cornelius Dolabella, praetor in 69 BC, was sent to Asia after his year of office in Rome; heis probably the father of Cicero’s temporary son-in-law, the suffect consul of 44 BC, whoexecuted the Caesaricide proconsul of Asia, Gaius Trebonius, at Smyrna the following yearbut was not himself proconsul of that province. On provincial trials in this period see A. H.M. Jones, The Criminal Courts of the Roman Republic and Principate (Oxford: Basil Blackwell,1972), 83–5; cf. A. N. Sherwin-White, Roman Society and Roman Law in the New Testament(Oxford: Clarendon Press, 1963), 17–23. The proconsul, hearing the case extra ordinem with aconsilium chosen by himself, was free to do justice as he saw fit.

5. Valerius Maximus, Facta et dicta memorabilia, 8. 1. amb. 1–2; the addition of the first dignumin §1, and the reading uitabant for mutabant at the end of §2, are Renaissance corrections.Different, and perhaps better, texts will be found in the editions by John Briscoe, 2 vols.(Stuttgart and Leipzig: Teubner, 1998), ii. 505–6; D. R. Shackleton Bailey, 2 vols. (LoebClassical Library 492–3; Cambridge, Mass., and London: Harvard University Press, 2000), ii.202–4.

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2. The same doubts troubled the mind of Publius Dolabella, too, when heheld Asia with a proconsul’s command. A married woman of Smyrnakilled her husband and son, giving as her reason the discovery that attheir hands the youth of excellent character whom she had borne by herfirst husband had been done to death. When the matter was laid beforehim, Dolabella sent it on to Athens for the Areopagus to hear,6 since forhis part he could bear neither to release a woman stained by two mur-ders nor to punish her when she was motivated by a just grief. Themagistrate of the Roman people displayed reflection and mercy, but theAreopagites too acted no less wisely: after looking into the case theyordered both the prosecutor and the defendant to return before them ina hundred years’ time, moved by the same sentiments as Dolabella. Buthe avoided the insoluble dilemma between conviction and acquittal bytransferring the trial, they by putting it off.

Modern readers will be struck by the absence of any suggestion that either womanought to have proceeded by way of law; in the former case (the Matricide) the reasonfor avoiding a verdict is stated without comment, in the latter (the Woman of Smyrna)the avoidance is commended. Nor does it make any difference that they were women,whether as regards their ability to obtain justice7 or because they were motivated bymaternal feelings; indeed, Valerius’ introduction uses the generic masculine (eos . . .qui . . . adducti . . . damnati . . . absoluti).

Against the conventional notion that Valerius intended to supply public speakerswith a handy fund of anecdotes for rhetorical elaboration, it has recently been arguedthat he intended to illustrate right and wrong conduct for his readers’ moral benefit;8since his own preface professes neither purpose, we may reasonably suppose he envis-aged them both together. In practice, the Matricide, who enjoyed far less of a literaryfortune,9 served only as a precedent for not passing judgment; the Woman of Smyrnahas served the same purpose, but has been cited far more often, both because Valerius’reference to iustus dolor as an excuse for murder was to attract the interest of Renais-sance lawyers, and because a referral to the renowned Areopagites and an ingeniouspostponement are intrinsically more interesting than the bald statement that a verdictwas evaded, the contrivance not specified. For the same reason it also appealed towriters anxious to demonstrate their narrative skills.

The first of these was Aulus Gellius, in whose Attic Nights, a miscellany compiledfor entertainment and intellectual stimulation in the years before c.180,10 the bare

6. The council of former magistrates that heard cases of deliberate murder (famously forbid-ding appeals to emotion).

7. The third chapter of book 8 is concerned with women who conducted cases on their own orothers’ behalf before (Roman) magistrates (“Quae mulieres apud magistratus pro se aut proaliis causas egerunt”).

8. See respectively W. Martin Bloomer, Valerius Maximus and the Rhetoric of the New Nobility(London: Duckworth, 1992) and Clive Skidmore, Practical Ethics for Roman Gentlemen: TheWorld of Valerius Maximus (Exeter: University of Exeter Press, 1996).

9. She reappears, misleadingly (dicta causa absoluta est, “she pleaded her case and was acquit-ted”), in the late-antique epitome of Julius Paris, which summarizes Valerius chapter bychapter, but not in the Valerio-Gellian florilegium first attested in a MS of c.1100, which hasthe Woman of Smyrna only in her Gellian recension.

10. L. A. Holford-Strevens, Aulus Gellius (London: Duckworth, 1988), 13–14. On Gellius’ aims


bones of Valerius’ tale take on life and flesh, albeit with a false reference and thewrong Dolabella.11

Ad Cn. Dolabellam proconsulari imperio prouinciam Asiam obtinentem deductamulier Smyrnaea est. Eadem mulier uirum et filium eodem tempore uenenis clamdatis uita interfecerat atque id fecisse se confitebatur dicebatque habuisse se faciendicausam, quoniam idem illi maritus et filius alterum filium mulieris ex uiro prioregenitum, adulescentem optimum et innocentissimum, exceptum insidiis occidissent.Idque ita esse factum controuersia non erat. Dolabella retulit ad consilium. Nemoquisquam ex consilio sententiam ferre in causa tam ancipiti audebat, quod etconfessum ueneficium, quo maritus et filius necati forent, non admittenduminpunitum uidebatur et digna tamen poena in homines sceleratos uindicatumfuisset.12 Dolabella eam rem Athenas ad Ariopagitas ut ad iudices grauioresexercitatioresque reiecit. Ariopagitae cognita causa accusatorem mulieris et ipsamquae accusabatur centesimo anno adesse iusserunt. Sic neque absolutum mulierisueneficium est, quod per leges non licuit, neque nocens damnata poenitaque, quaedigna uenia fuit. Scripta haec historiast in libro Valerii Maximi factorum et dictorummemorabilium nono.13

When Gnaeus Dolabella held Asia with a proconsul’s command, a womanof Smyrna was brought before him. She had taken the lives of husband andson together by poisons secretly administered, and confessed that she haddone so, and said that she had reason for so doing, seeing that those samemen, her husband and son, had ambushed and wickedly killed the woman’sson begotten by her former husband, an excellent and most blameless youth.And there was no dispute that that had happened. Dolabella referred thematter to his advisers. There was no-one who in a case so double-edgeddurst cast a vote, for on the one hand they did not think it right to leave

and values see, besides that work, Graham Anderson, “Aulus Gellius: A Miscellanist andhis World,” in H. Temporini and W. Haase (eds.), Aufstieg und Niedergang der römischen Welt(ANRW), II 34. 2 (Berlin and New York: W. de Gruyter, 1994), 1834–62; particular aspectsare considered by D. W. T. Vessey, “Aulus Gellius and the Cult of the Past,” ibid. 1862–1917; Madeleine M. Henry, “On the Aims and Purposes of Aulus Gellius’ ’Noctes Atticae’,”ibid. 1918–41, who notes this chapter at p. 1934.

11. Book 9 instead of 8; there is no basis for inferring that Gellius used a different recensionfrom ours. (Such errors arouse too much excitement in modern scholars, who would dobetter to eliminate them from their own work than speculate about their causes in theancients.) Wrong praenomina are frequent in Latin authors, but Gellius has something of ablind spot about names: Holford-Strevens, Aulus Gellius, 227–9. One Gnaeus Dolabella wasconsul, and another praetor, in 81 BC; the former is mentioned in passing at 15. 28. 3.

12. The subjunctive fuisset indicates that Gellius is quoting the substance of their opinion thatthe vengeance was merited, whereas the indicative uidebatur states the fact of their thinkingit should not go unpunished. These no more imply that Gellius disagrees with either propo-sition than Valerius’ comperisset and his own occidissent, reporting the woman’s confession,cast doubt on the facts alleged.

13. Aulus Gellius, Noctes Atticae, 12. 7, ed. P. K. Marshall, 2 vols. (rev. edn. Oxford: ClarendonPress, 1990), ii. 371–2. The summary in the list of contents prefixed by Gellius to the work is“Quam ob causam Cn. Dolabella proconsul ream mulierem ueneficii confitentemque adAreopagitas reiecerit” (“For what reason the proconsul Gnaeus Dolabella sent on a womanwho was accused of poisoning and admitted the charge, to the Areopagites”).

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unpunished the admitted act of poisoning by which the husband and sonhad been slain, on the other they held that vengeance had been inflicted onwicked men with the punishment they deserved. Dolabella submitted thematter to Athens to the Areopagites, as to weightier and more experiencedjudges. The Areopagites, having heard the case, ordered the woman’s ac-cuser and the accused woman herself to appear in a hundred years’ time.Thus neither was the charge of poisoning dismissed, which was forbiddenby statute, nor the guilty woman punished, who merited mercy. This storyis recorded in Valerius Maximus’ ninth book of Memorable Sayings and Actions.

Both murders are now aggravated, the one wrought by poison, the other by treachery,and against a victim praised more effusively than in Valerius. By suppressing theprevious story, Gellius wins the freedom to borrow details from it: the poison em-ployed by the Woman of Smyrna for vengeance has been borrowed from the wickedgrandmother whose crime the Matricide avenged; the idiom sententiam ferre has beenimported for the consilium that as any Roman knew, whether Valerius chose to men-tion it or not, must have sat with Dolabella. Gellius adds other colour too: not only theconsilium as a whole, but each individual adviser is afflicted with indecision; the Romangovernor defers to the Areopagites’ greater authority and experience, no everydayadmission even given their high standing and Roman respect for them.14 On the otherhand, he omits Valerius’ reference to iustus dolor, perhaps because rather than in spite ofhis judicial duties and his interest in (mostly older) law,15 for in contemporary practiceit was applied particularly to the angry husband who killed his wife caught in adul-tery;16 yet we shall see that advocacy could cite the woman’s story even in this context.

Among the late-antique authors who made large use of Gellius (though nevernaming him) was the historian Ammianus Marcellinus,17 who, writing in the early390s, retells this story to urge, against the cruelty of the emperor Valens, the virtue ofhesitation before passing the death-sentence; he compresses the narrative, but adds onhis own account an adjournment (comperendinatio),18 and enhances the Areopagites’

14. See Elizabeth Rawson, Roman Culture and Society (Oxford: Clarendon Press, 1991), 444–67.15. See Holford-Strevens, Aulus Gellius, 218–23.16. Antoninus Pius, under whom most of Gellius’ anecdotes are set, had ruled in a rescript

cited at Digest (hereafter D.) 48. 5. 39 (38). 8 that cum sit difficillimum iustum dolorem temperare(“since it is extremely difficult to control a just grief”), the sentence is to be labour for life forhumiliores, relegation (temporary; see D. 48. 8. 1. 5) to an island for honestiores; as Accursiuswould explain, “relegari: cum alias poena parricidii teneatur” (“to be relegated: since otherwisehe would be liable to the penalty for parricidium”), Accursii glossa in Digestum Novum, facs.of edn. Venice: Baptista de Tortis, 1487 in Corpus Glossatorum Iuris Civilis, 9 (Turin: Offi-cina Erasmiana, 1968), fol. 229v. See too D. 29. 5. 3. 3, Paul, Sententiae 2. 26. 5 = Mosaicarum etRomanarum legum collatio 4. 12. 4, and for lay use of dolor in such circumstances e.g. Valerius6. 1. 13, Juvenal, Satire 10. 314–17.

17. See M. J. Hertz, Opuscula Gelliana, lateinisch und deutsch (Berlin: W. Hertz, 1886), 146–201.Others who exploit him in silence are Nonius Marcellus (ibid. 85–146, but already noted byNonius’ humanist editor Josias Mercier) and Macrobius, for whom see e.g. Gunnar Lögdberg,In Macrobii Saturnalia adnotationes (Uppsala: Almqvist & Wiksell, 1936), and more recentlyfor a specific example of Macrobius’ use of material from Gellius, Jacqueline Long, “Julia-Jokes in Macrobius’s Saturnalia: Subversive Decorum in Late Antique Reception of Au-gustan Political Humor,” in this journal (IJCT) 6 (1999-2000), 337–55 at 338–40.

18. Strictly to the next day but one (perendie), but not always so confined. In some instances this


authority still more by noting the tradition that they had decided disputes amongst thevery gods.19

apud proconsulem Asiae Dolabellam Smyrnaea prolem propriam et maritum uenenisnecasse confessa, quod filium ex alio matrimonio ab eis occisum comperisset,20 etconperendinata, cum consilium, ad quod res ex more delata est, anceps, quid interultionem et scelus statui debeat, haesitaret, ad Areopagitas missa est, Atheniensesiudices tristiores, quorum aequitas deorum quoque iurgia dicitur distinxisse. hicausa cognita centesimo post anno cum accusatore mulierem adesse iusserunt, neaut absoluerent ueneficam aut ultrix necessitudinum puniretur. ita numquamtardum existimatur, quod est omnium ultimum.21

Before Dolabella, proconsul of Asia, a woman of Smyrna confessed to poi-soning her own offspring and husband because she had learnt that they hadkilled her son by another marriage; her case was adjourned. When thecouncil, before which the matter had been laid, in doubt what finding shouldbe made as between vengeance and crime, was reluctant to decide, she wassent to the Areopagites, Athenian judges of marked severity, so impartialthat they are said to have settled even the gods’ disputes. They, havingheard the case, ordered the woman, with her accuser, to appear in a hun-dred years’ time, lest either they should acquit a poisoner or she who hadavenged her kindred should be punished. So true it is that22 one neverdeems too late what of all things is the last.

The first qualms are heard from John of Salisbury in the mid twelfth century, inhis learned miscellany, treatise of political theory, and much more besides, Policraticussiue de nugis curialium et uestigiis philosophorum. In discussing the conflicting claims ona ruler of his children and his country, he considers whether L. Junius Brutus wasright to bring a capital charge against his sons for plotting to restore King Tarquin.23

was compulsory; but Dolabella, hearing a case against a non-citizen extra ordinem, wasmaster of his own procedure.

19. Commentators cite Poseidon’s prosecution of Ares for the murder of his son Halirrhothios,who had ravished Ares’ daughter Alcippe (Pausanias 1. 21. 4, 1. 28. 5); one will also recallthe Furies’ prosecution, and Apollo’s defence, of Orestes for killing his mother to avenge hisfather in Aeschylus’ Eumenides.

20. The text from Smyrnaea to comperisset is seriously lacunose; I give it as edited by GuySabbah in Ammien Marcellin: Histoire, 6 vols. (Paris, 1968–99), vi (1999), 20. Other reconstruc-tions have been proposed.

21. Res gestae 29. 2. 19. The narrative is introduced with the words ut exemplum est illud antiquitatiadmodum notum (“as is that example very well known to ancient times”).

22. For this use of ita, chiefly found in early Latin, see Thesaurus linguae Latinae, vii/2, cols. 520–1. French idiom allows Sabbah to render correctly: “Tant on n’estime jamais trop tardif ce quimet un terme à tout.”

23. On the context see Peter von Moos, “The Use of Exempla in the Policraticus of John ofSalisbury,” in Michael Wilks (ed.), The World of John of Salisbury (Studies in Church History.Subsidia 3; Oxford: Blackwell, 1984), 207–61 at 234–6, revised and expanded in von Moos,Geschichte als Topik. Das rhetorische Exemplum von der Antike zur Neuzeit und die historiae im“Policraticus” Johanns von Salisbury (Ordo. Studien zur Literatur und Gesellschaft desMittelalters und der frühen Neuzeit 2; Hildesheim, Zürich, New York: Georg Olms, 1988),144–502 at 351–61.

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Professing reluctance to determine so debatable a question, he cites the Woman ofSmyrna’s case as a precedent for evading a dilemma, but subtly converts it into afailure to tell right from wrong:

Quod si me ad sententiam urges, respondeo quod in causa Smirnensi AriopagitasGneio Dolobellae24 inuenio respondisse. Ad quem prouinciam Asiam proconsulariimperio obtinentem mulier Smyrnensis adducta est, confitens se maritum et filiumdatis clam uenenis occidisse, eo quod illi filium ex altero matrimonio, optimum etinnocentissimum iuuenem, exceptum insidiis nequiter occidissent, sibi licitum esseasserens ex indulgentia legum et ius ignorare et suam et suorum et totius reipublicae suae tam atrocem iniuriam uindicare. Ius extra causam erat cum de factoconstaret et de iure quaereretur. Cum ergo Dolobella rem in consilium deduxisset,non fuit qui in causa, ut putabatur, ancipiti manifestum ueneficium et parricidiumauderet absoluere, uel uindictam quae in impios et parricidas processerat condemnare.Rem itaque ad Areopagitas Atheniensium, tamquam ad iudices grauioresexercitatioresque, reiecit. At illi, causa cognita, actores et ream mulierem centesimoanno adesse iusserunt. Sic autem neque ueneficium, quod de lege non licuit,absolutum est, neque nocens punita mulier, cui ex sententia multorum uenia poteratindulgeri. Hoc ita fuisse nonus liber Memorabilium dictorum uel factorum ValeriiMaximi docet. Ceterum et Brutum et mulierem deliquisse consentiam facile, eoquod excessit medicina modum nimiumque secuta est qua morbi duxeremanum,25 et licet magna fuerint crimina, praestantius fuerat eadem sine punientiscrimine uindicari.26

But if you press me to state my opinion, I give the same answer that I findthe Areopagites, in a case from Smyrna, gave Gnaeus Dolabella. When heheld Asia with a proconsul’s command, a woman of Smyrna was broughtbefore him, confessing that she had killed her husband and son by poisonssecretly administered, because they had ambushed and wickedly killed herson by her other marriage, an excellent and most blameless youth, claimingthat it was permitted her by the indulgence of the statutes both to be igno-rant of the law and to avenge so heinous an affront to herself, her own, andthe entire state. The law was (thus) irrelevant to the case,27 although the

24. A characteristic medieval (and Greek) misspelling.25. Lucan, Bellum ciuile 2. 142–3.26. John of Salisbury, Policraticus, 4. 11, ed. K. S. B. Keats-Rohan (Corpus Christianorum,

Continuatio Mediaevalis 118; Turnout: Brepols, 1993), 268–9. John’s verbatim quotationsfrom Gellius are mediated through a florilegium of that writer known as Φ; see Janet Martin,“Uses of Tradition: Gellius, Petronius, and John of Salisbury,” Viator 10 (1979), 57–66 at 59–61 and, for the argument that it was made by William of Malmesbury, Rodney Thomson,William of Malmesbury (Woodbridge: Boydell, 1987), 185–95. The tale also appears in anotherbearer of Φ, a MS closely associated with William, Bodleian Library, MS Lat. class. D. 39,fols. 155rb–va, but with minor variants not repeated in John; William himself forbears toinclude this story in his selection from Φ in his Polyhistor, ed. Helen Testroet Ouellette(Binghamton, NY: Center for Medieval & Early Renaissance Studies, 1982), 65, ll. 3–4.

27. Extra causam is a well-attested idiom denoting that which is extraneous to the case; here Itake the sense to be that the woman’s claim of a licence not to know the law precludedargument on the very point at issue, whether she had any colour of right for her actions.Such translations as “The law was separate from the case since the facts were agreed and


facts were not in dispute and the question was one of law. Therefore, whenDolabella referred the matter to his council, there was no-one who in a caseconsidered double-edged durst either exonerate manifest poisoning andmurder, or condemn revenge that had taken its course against scoundrelsand murderers. He therefore submitted the matter to the Areopagites of theAthenians, as to weightier and more experienced judges. But they, havingheard the case, ordered the prosecutors and the woman defendant to ap-pear in a hundred years’ time. Thus neither was the charge of poisoningdismissed, which was forbidden by statute, nor the guilty woman pun-ished, who in many people’s opinion could be treated mercifully. That thiswas so we are told by Valerius Maximus’ ninth book of Memorable Sayingsand Actions. Still, I shall readily agree that both Brutus and the woman didwrong, since “the remedy exceeded due measure, and the (surgeon’s) handfollowed too far where the diseases led,” and although these were greatcrimes, it would have been better for them to be avenged without a crimeon the part of the person punishing.

Doing his best for the party against whom he will eventually decide, John allows herto plead both that as a woman she is not required to know the law (the only sugges-tion, in any of the writers to be studied, that her gender is relevant to the case) and thatshe has acted in the public interest; he then prepares the reader for his resolution ofthe doubt by undermining his source’s certainties. The case is no longer doubtful, butwas only thought to be; that the woman merited mercy is now no more than a wide-spread opinion.28 Although he does not explicitly refute the defence he wrote for her,the right accorded to women in the Corpus Iuris Ciuilis, “owing to the infirmity oftheir sex,” not to know the law “in certain cases” did not always extend even to finetechnicalities, let alone to matters of substance;29 the most remarkable indulgence, ofnot knowing the prohibition against incest, was confined to unions forbidden only byRoman law, not to those that violated the ius gentium common to the entire humanrace (Institutes 1. 2. 2).30 But this was also affronted by treacherous murder (D. 1. 1. 4);evidently John no more accords justification to vendetta than validity to the woman’sother defence, that of the public interest in punishing heinous wrongdoing; the pun-ishment of crime should not itself proceed by way of crime.

Nevertheless, John does not explicitly declare that she should have set the wheelsof law in motion; some four centuries later that point was taken by François Rabelais, aman well informed in legal matters, when Epistemon in the first edition of Le Tiers

only a question of law remained” (John Dickinson, The Statesman’s Book [New York: Knopf,1927], 52), or “The matter of legal right was external to the case because there was agree-ment regarding the fact and there was question about the law” (Cary J. Nederman, John ofSalisbury: Policraticus [Cambridge Texts in the History of Political Thought; Cambridge:Cambridge University Press, 1990], 58), leave the reader perplexed.

28. Gellius’ in causa tam ancipiti . . . quae digna uenia fuit becomes in John “in causa, ut putabatur,ancipiti . . . cui ex sententia multorum uenia poterat indulgeri”; these are distancing expressionssuch as those noted in n. 12 are not.

29. For the right see D. 22. 6. 9. pr.; for restrictions Codex Justinianus 1. 18. 3, 13. Nor werewomen permitted to make a profit out of ignorance (ibid. 1. 18. 11 = Codex Theodosianus 3. 5.3).

30. D. 23. 2. 57a with D. 48. 5. 39 (38). 2. See too Paul, Sententiae 2. 19. 5.

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Livre (1546) and in subsequent editions Pantagruel illustrated the kind of case thatmight benefit from the aleatory proceedings of Bridoye (Mr Justice Bridlegoose) bybalancing the wrongfulness of taking the law into one’s own hands against the magni-tude of the provocation:

« Une femme, en Smyrne, de son premier mary eut un enfant, nommé Abecé. Lemary defunct, après certain temps elle se remaria, et de son second mary eut unfilz, nommé Effegé. Advint (comme vous sçavez que rare est l’affection des peratres,vitrices, novercles et meratres envers les enfans des defuncts premiers peres etmeres) que cestuy mary et son filz, occultement, en trahison, de guet à pens,tuerent Abecé. La femme, entendent la trahison et meschanceté, ne voulut le forfaictrester impuny et les feist mourir tous deux, vengeante la mort de son filz premier.Elle feut par la justice apprehendée et menée davant Cn. Dolabella. En sa præsenceelle confessa le cas, sans rien dissimuler ; seulement alleguoit que, de droict et parraison elle les avoit occis. C’estoit l’estat du procès.

« Il trouva l’affaire tant ambigu qu’il ne sçavoit en quelle partie incliner. Lecrime de la femme estoit grand, laquelle avoit occis ses mary second et enfant. Maisla cause du meurtre luy sembloit tant naturelle et comme fondée en droict despeuples, veu qu’ilz avoient tué son filz premier, eulx ensemble, en trahison, de guetà pens, non par luy oultragez ne injuriez, seulement par avarice de occuper le totalheritage, que pour la decision il envoya es Areopagites, en Athenes, entendre quelseroit sur ce leur advis et jugement. Les Areopagites feirent response que cent ansaprès personellement on leurs envoiast les parties contendentes, affin de respondreà certains interroguatoires qui n’estoient on procès verbal contenuz. C’estoit à direque tant grande leurs sembloit la perplexité et obscurité de la matiere qu’ilz nesçavoient qu’en dire ne juger. Qui eust decidé le cas au sort des dez, il n’eust erré,advint ce que pourroit. Si contre la femme, elle meritoit punition, veu qu’elle avoitfaict la vengence de soy, laquelle apartenoit à Justice. Si pour la femme, elle sembloitavoir eu cause de douleur atroce.31

A Wife in Smyrna had of her first Husband a Child named Abece; he dying,she after the expiring of a Year and Day, married again, and to her SecondHusband bore a Boy called Edege: A pretty long time thereafter it happened(as you know the Affection of Step-fathers and Step-dams is very rare,towards the Children of the first Fathers and Mothers deceased) that thisHusband, with the help of his Son Edege, secretly, wittingly, willingly andtreacherously murthered Abece. The Woman came no sooner to get Infor-mation of the Fact, that it might not go unpunished, she caused kill themboth, to revenge the Death of her first Son. She was Apprehended andcarried before Cneius Dolabella, in whose Presence, she, without dissemblingany thing, confessed all that was laid to her Charge; yet alledged that shehad both Right and Reason on her side for the killing of them. Thus was thestate of the Question. He found the Business so dubious and intricate, thathe knew not what to determin therein, nor which of the Parties to incline to.On the one hand, it was an execrable Crime to cut off at once both herSecond Husband and her Son. On the other hand, the Cause of the Murther

31. Rabelais, Le Tiers Livre, ch. 44, ed. M. A. Screech: François Rabelais: Le Tiers Livre. Éditioncritique (Geneva: Droz, 1964), 297–8.


seemed to be so natural, as to be grounded upon the Law of Nations, andthe rational Instinct of all the People of the World; seeing they two togetherhad feloniously and murtherously destroyed her first Son. Not that theyhad been in any manner of way wronged, outraged or injured by him, butout of an avaricious Intent to possess his Inheritance. In this doubtful Quan-dary and Uncertainty what to pitch upon, he sent to the Areopagites thensitting at Athens, to learn and obtain their Advice and Judgment. That Judi-cious Senate very sagely perpending the Reasons of his Perplexity, sent himword, to summon her personally to compear before him [sic], a preciseHundred Years thereafter, to answer to some Interrogatories touching cer-tain Points, which were not contained in the Verbal Defence:32 Which Reso-lution of theirs did import, that it was in their Opinion a so dificult andinextricable a [sic] Matter, that they knew not what to say or judge therein.Who had decided that Plea by the Chance and Fortune of the Dice, couldnot have erred nor awarded amiss on which side soever he had past hiscasting and condemnatory Sentence: If against the Woman, she deservedPunishment for usurping Sovereign Authority, by taking that Vengeance ather own hand, the inflicting whereof was only competent to the SupreamPower, to administer Justice in Criminal Cases: If for her, the just Resent-ment of a so atrocious Injury done unto her, in murthering her innocentSon, did fully excuse and vindicate her of any Trespass or Offence aboutthat particular committed by her.33

Rabelais takes the bare facts (including the wrong praenomen) from Gellius, but elabo-rates them by inventing a motive for the original murder, and presenting it in themanner of a speech for the defence (“en trahison, de guet à pens, non par luy oultragez neinjuriez, seulement par avarice de occuper le total heritage”); he suppresses the characteris-tically Roman institution of the governor’s consilium, but exports to Roman Asia andAchaia the procedural law of contemporary France (“affin de respondre à certainsinterroguatoires qui n’estoient on procès verbal contenuz”).34 Once again the merits areevenly balanced; but whereas for the ancient authors either verdict would have beenwrong, for Rabelais’s speaker either would have been right.

It is in Ammianus’ spirit, warning against a hasty resort to the death penalty, thatMontaigne, that perpetual doubter, compares this case with that of Martin Guerre:

Je vy en mon enfance un procès, que Corras, conseiller de Toulouse, fist imprimer,d’un accident estrange : de deux hommes qui se presentoient l’un pour l’autre. Ilme souvient (et ne me souvient aussi d’autre chose) qu’il me sembla avoir rendul’imposture de celuy qu’il jugea coulpable si merveilleuse et excedant de si loingnostre connoissance, et la sienne qui estoit juge, que je trouvay beaucoup de hardiesse

32. A mistranslation due to taking the first definition found in Randle Cotgrave, A Dictionarie ofthe French and English Tongues (London: Islip, 1611; facs. with introduction by William S.Woods, Columbia: University of South Carolina Press, 1950), sig. Llllv; the correct sensehere is Cotgrave’s second. “a verball report (made by Judge, or partie) of all the parts, andpleadings of a suit,” where “verball” means “word-for-word,” not “oral.”

33. The Third Book of the Works of Mr. Francis Rabelais, tr. Sir Thomas Urquhart (London: RichardBaldwin, 1693), 358–60.

34. See the list of procedural documents in Tiers Livre, ch. 39 (p. 271 Screech).

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en l’arrest qui l’avoit condamné à estre pendu. Recevons quelque forme d’arrest quidie : La court n’y entend rien, plus librement et ingenuement que ne firent lesAreopagites, lesquels, se trouvans pressez d’une cause qu’ils ne pouvoient desveloper,ordonnerent que les parties en viendroient à cent ans.35

Being yong, I saw a law case, which Corras, a Counsellor of Tholouse,caused to be printed, of a strange accident of two men, who presentedthemselves one for another. I remember (and I remember nothing else sowell) that me thought be proved his imposture, whom he condemned asguiltie, so wondrous-strange and so far-exceeding both our knowledge andhis owne, who was judge, that I found much boldness in the sentence,which had condemned him to be hanged. Let us receive some forme ofsentence that may say: The Court understands nothing of it, more freelyand ingenuously than did the Areopagites, who finding themselves urgedand entangled in a case they could not well cleare or determine, appointedthe parties to come againe and appeare before them a hundred yeares af-ter.36

No such hesitation troubled the Dutch scholar Antonius Thysius (c.1603–65), him-self a jurist and the son of a theologian, who in the edition of Gellius completed andpublished after his death by Jacobus Oiselius (1631–86) commented sternly on hisdescription of the woman as meriting mercy:

Nequaquam. Potuit enim ad magistratum deferre crimen mariti & filii, ut juste àmagistratu punirentur. Neque enim mulieris erat privatam vindictam sumere.37

Not at all. She could have reported her husband’s and son’s crime to themagistrate, so that they could receive due punishment from the magistrate.It was not the woman’s business to exact private vengeance.

Jacobus Gronovius (1645–1716), a quarrelsome man who never conceals his contemptfor Thysius’ and Oiselius’ annotations, retorted in his own edition forty years later:

Alia igitur Dolabellæ, & Ariopagitarum mens atque etiam Valerii Maximi justodolore impulsam dicentis; alia nostri temporis.38

So Dolabella and the Areopagites, and also Valerius Maximus, who says

35. Michel de Montaigne, Essais 3. 11, ed. Pierre Villey, 3 vols. (Paris: Alcan, 1930–1), iii. 493–4.36. John Florio, The Essayes or Morall, Politike and Millitarie Discourses of Lord Michael de Montaigne

(London, 1610), 614. See Natalie Zemon Davis, The Return of Martin Guerre (Cambridge,Mass.: Harvard University Press, 1983), 119–20.

37. Auli Gelli Noctes Atticae cum Selectis Novisque Commentariis et Accuratâ‚ Recensione AntoniiThysI, J.C. et Jacobi OiselI, J.C. (Leiden: Pieter Leffen, 1666), p. 635, col. b, n. 4; Oiseliusannotated books 13–20. There is no such comment in Thysius’ variorum edition of ValeriusMaximus (Leiden: Frans Hack, 1651 and reprints).

38. Auli Gellii Noctium Atticarum Libri XX prout Supersunt cum Notis Vtriusque Gronovii (Leiden:Cornelis Boutesteyn and Johannes du Vivié, 1706), p. 562, col. a, n. 8. The Delphin editor of1681, Jacques Proust SJ, does not venture an opinion.


“motivated by a just grief,” view things one way, our own age another.

In other words, in the Dutch Republic, where the rule of law was firmly established,such private vengeance was not to be entertained; but autres temps, autres mœurs.39

Other jurists, however, had accepted the values of Valerius and Gellius as rightand proper. Tommaso Grammatico (1473–1556), member of the Sacro Regio Consiglioof Naples, records with approval the successful appeal of one Paolo and his brothersfrom Sant’Antimo in Campagna, condemned to death by the highest criminal court,the Gran Corte della Vicaria, for killing a vicious brute (the defence adduced his evilhabit “vulnerandi, occidendi & iugulandi alios”) who had murdered their cousin, woundedPaolo, threatened to kill one of the brothers, and attempted to rape their sister (to thedishonour of the whole family); a majority of the council commuted the sentence to alifetime in the galleys. The joint rapporteur (relatore) Antonio Barattuccio (1486–1561)40

cited the Woman of Smyrna in support of the appeal; Grammatico, looking up Valerius,came across the Matricide:

Adducebat insuper magnificus Baraptutius, Valer. Max. in 24. cap.41 lib. 8.narrantem de muliere, quæ virum & filium interfecit, dum formaliter dicit: eademquoque hæsitatione Publii quoque Dolabellæ proconsulari imperio Asiam obtinentis,animus fluctuatus est, materfamilias Mirnea [sic] virum & filium interemit, cumab his optimæ indolis iuuenem, quem ex priore uiro genuerat, occisum comperisset,quam rem Dolabellam [sic] ad se delatam Athenas, & Areopagi cognitionemdelegauit, quia ipse neque liberare cædibus duabus contaminatam, neque punirecum iusto dolore inpulsam sustinebat. Considerantur [sic] & mansuete populiRomani magistratus, sed Areopagitæ quoque non minus sapienter, qui inspectacausa, accusatorem & reum [sic] post centum annos ad se reuerti dixerunt, eodemaffectu moti, quo Dolabella, sed ille transferendo quæstionem, ii differendo damnandiatque absoluendi inexplicabilem cantationem [sic] mutabant. Et ego dum in fontelibrum Valerii inspexissem, non minus ad hoc facere præcedens capitulum visumfuit, dum commemorat mulierem, quæ matrem occiderat hoc modo: Atque vt nosquoque referamus per indiscrimen [sic] capitis adducti, neque damnati, neque absolutisunt, Marcum Popilium Lænatem prætorem quaedam quæ matrem percussam fusteinteremerat, causam dixit, de qua neutram in partem latæ sententiæ sunt, quiaabunde constabat eandem veneno necatorum liberorum dolore commotam, quosauia filiæ impensa [sic] sustulerat, parricidium vltam parricidio esse. quorum alterumvltione, absolutione non dignum iudicatur.42

39. Indeed, ancient society accepted a high level of self-help, if Apuleius is anything to go by:see Fergus Millar, “The World of the Golden Ass,” Journal of Roman Studies 71 (1981), 63–75 at71.

40. On whom see Dizionario biografico degli italiani, vi (Rome: Istituto dell’Enciclopedia Italiana,1964), 9–10.

41. Book 8 begins with a section on notable trials, divided into a (one-sentence) praefatio, 13absoluti, 8 damnati, and 2 ambusti (“scorched”), namely the two cases considered in thisarticle: if each item is counted as a separate chapter, the woman of Smyrna appears in no. 24.

42. Decisiones Sacri Regii Consilii Neapolitani, per D. Thomam Grammaticum Patritium Neapolitanum,I.V.D. et Regium Consiliarium, ex causis tam per ipsum, quam per alios Dn. Consiliarios in eodemsacro Consilio relatis, summa cura, singulari iudicioque collectæ, rev. edn. (Frankfurt am Main,1600), 17 (decisio 5, num. 22–4).

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In addition the Magnificent Barattuccio cited Valerius Maximus, book 8,chapter 24, telling of the woman who killed her husband and son, saying interms: [as above].43 And when I consulted Valerius’ book in the original, theprevious chapter seemed no less apposite to this matter, in mentioning thewoman who had killed her mother in this manner: [as above].

Whereas the Matricide and the Woman of Smyrna had escaped a verdict, Paolo andhis brothers have already been convicted and even on appeal are punished. Valerius’exempla are reduced to precedents for leniency.

Thus established in practice, these cases entered legal theory in the treatise ofAndré Tiraqueau (1480–1558), conseiller to the Parlements successively of Bordeauxand Paris,44 on moderating and remitting the penalties laid down by law and custom,published posthumously by his like-named son in 1559. After citing Plato, Moses, andAlexander of Hales45 for the exoneration of persons who acted “instante dolore,” hecontinues by citing the two cases from Valerius, in the second also using Gellius:

Nec abs re fuerit duo exempla historica à Valerio Maxi. lib. reru memorabiliu 8. c. 1memoriæ prodita hoc potissimum loco recensere. Primùm, de muliere quadam, quæmatrem fuste percussam interemerat, dolore commota necatorum ueneno liberorum,quos auia filiæ infensa sustulerat, eámque quòd parricidium parricidio ulta esset,M. Pompilius prætor neque damnauit, neque absoluit. Secundum, de altera muliere,quæ uirum, & filium eodem tempore uenenis clam datis irata interfecerat: quoniamilli alterum eius filium ex uiro priore genitum insidiis occidissent. Quam remDolabella ad se delatam, Athenas ad Areopagi cognitionem reiecit, quia ipse nequeliberare cædibus duabus contaminatam, neque punire eam iusto dolore inpulsamsustinuit. Areopagitæ autem, inspecta causa, & accusatorem & reum [sic] postcentum annos ad se uenire iusserunt, eodem affectu moti, quo Dolabella. Sic nequeabsolutum mulieris ueneficium est, quod per leges non licuit: neque nocens damnatapunitáq;, quæ digna uenia fuit. Quod & Gellius repetiit lib. Noctium Attic. 12. c. 7.46

Nor will it prove irrelevant to review at this very place two historical ex-amples recorded by Valerius Maximus in book 8, ch. 1, of his Memorable

43. I forbear to translate the numerous corruptions.44. The friend of Rabelais during his time as a monk at Fontenay-le-Comte immortalized in the

Tiers Livre as Trinquamelle, “grand præsident” of the centumviral court of Myrelingues whointerrogates Bridoye on his methods; see Screech’s note on ch. XXXIX, l. 32, ed. cit. 269.

45. Plato, Laws 9 (misprinted 3), 867 C, laying down that he who kills in rage and repents shallbe exiled for two years, is alleged by Tiraqueau to have been derived from Deut. 19: 4,which, taking for granted that the kinsman of one killed by accident will seek vengeance,was interpreted as exonerating him by Alexander’s continuator (William of Melitona?),Summa Theologica, pt. 4, qu. 86, mem. 3, art. 1, fol. 343rb in Anton Koberger’s Nurembergedition of 1516: “Multa enim perpetrata instante dolore remanent impunita que si cessante dolorefierent essent punienda” (“For many crimes committed under pressure of grief are left unpun-ished that if they took place in the absence of grief would need to be punished”). For thederivation Tiraqueau cites Eusebius, Praeparatio Euangelica 13. 13; the correct reference is 13.21. 11, where the Mosaic verse adduced is Exod. 21: 13.

46. Andreas Tiraquellus, De poenis Legum ac Consuetudinum, Statutorúmq; temperandis, aut etiamremittendis, & id quibus quótq; ex causis (s.l., 1559), 10–11 (1. 17).


Matters. The first concerns a woman who had beaten her mother to deathwith a cudgel, stirred by grief for her poisoned children, whom their grand-mother had done away with out of hatred for her daughter, and whom, onthe grounds that she had avenged murder with murder, Marcus Pompilius[sic] the praetor neither condemned nor acquitted. The second is aboutanother woman, who had killed her husband and son at the same time bypoisons secretly administered because they had treacherously killed herother son by her first husband. When the matter was laid before him,Dolabella referred it to Athens for the Areopagus to hear, since for his parthe could bear neither to release a woman stained by two murders nor topunish her when she was motivated by a just grief. But the Areopagites,after looking into the case, ordered both the prosecutor and the defendantto return before them in a hundred years’ time, moved by the same senti-ments as Dolabella. Thus neither was the charge of poisoning dismissed,which was forbidden by statute, nor the guilty woman punished, who mer-ited mercy. Gellius too retold the story in Attic Nights 12. 7.

Both stories are thus taken at face value as precedents from classical antiquitytelling in favour of that leniency which Tiraqueau is at pains to advocate; they reap-pear in Pierre Grégoire of Toulouse (1540–1617) during a discussion of exceptions tothe rule that the killing of kin constitutes the crime of parricidium. Having consideredcases, such as that of L. Brutus, in which a father kills his son for treason, ending witha reference to Valerius’ chapter “de seueritate patrum in liberos” (5. 8), he turns toother excusations:

Aliquando causa aliqua alia dans occasionem parricidij, nec pœnam sustulit, seddissimulauit. Apud M. Popilium Lenatem, prætorem, quædam, quòd matrem fustepercussam interemerat, causam dixit, de qua neutram in partem sententiæ latæsunt: quia abundè constabat, eandem veneno necatorum liberorum dolore commotam,quos auia filiæ infensa sustulerat, parricidium vltam esse parricidio: quorum alterumvltione dignum, alterum absolutione non dignum iudicatum est. Sic cum materfa-milias Smyrnæ virum & filium interfecisset, cùm ille huius optimum iuuenem exalio viro genitum occidisset, delata fuisset ad proconsulem Asiæ Dolabellam, hæsitansDolabella quid inter vltionem & scelus statui oporteret, re delatam ad se reiecitAthenas ad Areopagi cognitionem: sed Areopagitæ quoque non minus sapieter,quàm Dolabella mansuetè inspecta causa, & accusatorem & reum in centum annosvadati sunt: differendo, damnandi atque absoluendi inexplicabilem cunctationemtegentes.47

Sometimes murder arising from some other reason has not been punished,but overlooked.48 A woman pleaded her case [as above]. Similarly, when amarried woman at Smyrna had killed her husband and son, because theformer had slain the excellent youth begotten of her other husband, (and)

47. Petrus Gregorius (Tholosanus), Syntagma iuris universi (Lyon: Ant. Gryphius, 1582), ii. 717(36. 24. 26–7); side-references attribute the stories respectively to “idem, lib. 8. c. 1” and“idem, eod. & Gellius, lib. 12. c. 7.”

48. Lit.: “Sometimes some other cause giving occasion for murder has not abolished the pen-alty, but has overlooked it.”

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had been brought before Dolabella, proconsul of Asia, Dolabella, in doubtwhat finding should be made as between vengeance and crime, referred theaffair brought before him to Athens for the Areopagus to consider; but theAreopagites in their turn, showing no less wisdom than Dolabella mercy,having examined the case, bound over both prosecutor and defendant (toappear) in a hundred years’ time, covering up by postponement their in-soluble dilemma between conviction and acquittal.

He goes on to consider precedents from mythology: Alcmaeon, who killed his motherEriphyle at the behest of his father Amphiaraus, who considered she had betrayedhim; Ninyas, who killed his mother Semiramis for attempting to sleep with him;Cyane, who at the behest of an oracle relieved a famine by killing her father, who hadraped her while drunk.49 It is evident that the defence of outraged feelings is availableto men as well as women, albeit Grégoire shifts the emphasis from defence of thechildren to deterrence of the parents.50

In the Woman of Smyrna’s case, Grégoire ascribes the crime avenged to the hus-band alone. Neither Valerius nor the current supplements in Ammianus (whom hedoes not cite but has clearly read) gave him any support; early editions of Gellius, inthe phrase idem illi maritus et filius, read ille for illi, qualifying maritus alone, but sincethey retain et filius and the plural occidissent the overall sense is not affected. Eliminat-ing the son as a murderer, but not as a victim, might be thought to impair the woman’scase, but nothing to that effect is said; nevertheless, this error will recur in the subse-quent reception of the story.

The Pavian-born jurist Iacopo Menocchi (1532–1607), counsellor to Philip II andsenator of Milan, composed a massive study of judicial discretion, first published bythe brothers Somasco at Venice in 1569 but subsequently expanded and revised. In1599 the treatment of parricidium, previously very brief, was expanded into a full-length discussion of those homicides which do not fall under that head; among them iskilling motivated by iustus dolor, of which he lists four instances: (1) when the fatherkills the daughter taken in adultery; (2) when the father or mother has killed the sonfor an offence for which he might have been disinherited; or (3) when the mother killsthe son whom her husband has repeatedly accused her of conceiving in adultery;

Quartum exemplum est, cuius ad rem nostram meminit Petrus Gregorius in lib.36. syntagmatis. cap. 24. nu. 27. sumptum ex Valerio Max. lib. 8. cap. 1. &Aulo Gellio lib. 12 noct. attica. cap. 7. & hoc quidem est: Mater familias Smirnæavirum & filium interemit, cum ab ijs optimæ indolis iuuenem, que ex priore viroenixa fuerat, occisum comperisset, quam ream [sic] Dolobella ad se delatam Athenasad Areopagi cognitionem relegauit: quia ipse neque liberare cædibus duabuscontaminatam, neque punire iusto dolore pulsam sustinebat. sed Areopagitæ quoquenon minus sapienter, quàm Dolobella, mansuetè, inspecta causa, & accusatorem, &

49. See respectively Diodorus Siculus 4. 65. 6–7, Justin 1. 2. 10, Pseudo-Plutarch, Parallela minora19; I have corrected Grégoire’s spellings.

50. “Quorum tamen facta delinquendi ansam dare non debent, sed parentibus exemplo esse debent, ne eaturpia audere velint, ob quae parricidium excusari aliquo modo potest” (“But their acts ought notto provide a handle for wrongdoing, but ought to be an example for parents not to chooseto venture on those disgraceful actions that may furnish some sort of excuse for parrcidium”).


ream post centum annos ad se reuerti iusserunt. Eodem affectu moti, quo Dolobella.ij differendo damnandi atq; absoluendi inexplicabilem cunctationem nectebant.51

A fourth example is that which Pierre Grégoire mentions appositely to ourpurpose, in Syntagma, book 36, chapter 24, numbered section 27, taken fromValerius Maximus, book 8 ch. 1, and Aulus Gellius, Attic Nights, book 12,chapter 7, and it is this: [as Valerius above]

Despite citing Grégoire, Menocchi has gone back to Valerius, and correctly implicatedthe son in the murder. He does not suggest that this kind of dolor, like the third, isconfined to women as the first is to men.

A generation later, the Mantuan jurist Francesco Negri, also known as Ciriaco,considered the case of a Donna Paola, accused of procuring her husband’s murder. Hefirst argues on the facts that her degree of involvement does not justify the statutorypenalty (poena ordinaria), namely death, but only a lesser, discretionary punishment(poena extraordinaria), then maintains that even if she had caused or ordered herhusband’s murder she could still not be condemned to the poena ordinaria because ofher iustus dolor; having noted that at D. 48. 9. 5 the father who killed his son forcarrying on an affair with his stepmother was merely banished by Hadrian to anisland, because as the gloss says “excusatur propter iustum dolorem,”52 he declares:

Hoc preçmisso dico, quòd mulier ista habuit multipliciter iustum dolorem cõtramaritum, ob quem, si deuenisset ad hunc excessum, mereretur leuius puniri, nisipotius vellemus eam dimittere cum præcepto ad comparedum post centum annos,vt in notabili casu fecerunt Areopagitæ Athenienses, cum hinc agnoscerent istum[sic]53 dolorem in ea, quæ occiderat viru, & filium ex eo, quia ipsi interfecerantvnum filium ex altero matrimonio ipsius mulieris iuuenem optimæ indolis; inde

51. De arbitrariis iudicum quaestionibus et causis libri duo (Cologne: widow and heirs of JohannGymnich, 1599), 514b (book 2, case 356, num. 60).

52. Ciricaco neglects to observe that in Hadrian’s eyes the father, in killing his son on a huntingexpedition, had acted “latronis magis quam patris iure” (“more like a bandit than a father”)thereby forfeiting his right to execute his son; misunderstanding latronis iure as ut latroneminstead of ut latro (cf. Thesaurus linguae Latinae, vii/2. 700, ll. 5–22), Accursius had com-mented: “Videbatur excusari pater propter adulterium, cum filius erat uilis, supra de adul. l. maritosed non in opus Veneris. Item secundo quia patri licet occidere filium, ut supra de lib. et po. l. insuis, sed illud quando ut pater, sed hic ut adulterum et extraneum latronem, relegatur ergo: quiaaccusare non occidere debuit ut supra tit. i. [= priore] l. inauditum. a Pompeia excusatur propteriustum dolorem, ut supra de adul. si adulterium § Imperatores. Item quia meruit filius perdere filiipriuilegium cum deliquit non ut filius ut in auth. ut cum de app. cogn. § causas. Item quod utlatronem non ut filium occidit ut subiicit” (“The father appeared to be excused because of theadultery, since his son was worthless, see above, D. 48. 5. 25 (24), though not as to thesexual act. Also, secondly, because the father is allowed to kill his son, as above, D. 28. 2. 11,but that [is] when [he acts] as a father, but this man [acted] as if [killing] an adulterer and abandit outside the family. He is therefore relegated, since he ought to have prosecuted, notkilled, as above, in the previous title, D. 48. 8. 2. He is excused from the Lex Pompeia onaccount of his just grief, as above, D. 48. 5. 39 (38). 8. Also, because the son deserved to losethe privilege of a son when he committed a crime not in a son’s character, as in Authenticum111 [= Novels 115, c. 3 post init., num. 6]. Also because he [the father] killed him as a banditnot as a son, as he [Hadrian] added”), ed. cit., fol. 232r.

53. Conceivably referring back to iustum dolorem above, but more probably a misprint foriustum.

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verò suspicerent graue delictum commissum, iusserunt accusatorem, & ream reuertipost centum annos pro sententia, vt post Valer. Maximum, & Aulu Gellium, refertMenoch. de arbitr. cas. 356. n. 60. in vlt. impressione.54

Having first said this, I declare that this woman had a just grievance onmany counts against her husband, because of which, if she had come to thisexcess, she would deserve to be punished more leniently, unless we wouldrather let her go with an order to appear after a hundred years, as theAthenian Areopagites did in a famous case, when they on the one handrecognized that grief in the woman who had slain her husband and her sonby him because they had killed a son of the woman’s by another marriage,a youth of excellent character, on the other had regard to the serious crimethat had been committed; they ordered prosecutor and defendant to returnafter a hundred years for the verdict, as Menocchi relates after ValeriusMaximus and Aulus Gellius, On Discretionary Questions, case 356 section 60in the last edition.

We now return to Donna Paola, and the maltreatment that gave rise to her iustus dolor:her husband kept a mistress in the matrimonial home, making his wife sleep “outsidethe bed, in the ruelle of the bedroom on a plank or beam”;55 consistently refused topay the marital debt (which default, as doctors had taught lawyers, was a threat tonubile women’s health), and threatened her now with poison, now with the Soccorsoor spital, which since most of its inmates were prostitutes was an affront to her honour.Nor did the requirement that iustus dolor be avenged straight away (“incontinenti”)preclude a long interval, if its cause was perpetuated by repeated actions, such as wereconstituted by Donna Paola’s daily and hourly abuse, for each action constituted animmediate ground of iustus dolor;56 Ciriaco cites, again from Menocchi, a Milanese caseof a son persistently beaten and even starved by his father, distorting it into a prece-dent for revenge ex intervallo.57 The argument prevailed:58 Donna Paola escaped with a

54. Controversiarum Forensium Liber Primus (Mantua: Aur. and Lud. Osanna, 1628), 476a (no.105, num. 38–9).

55. “. . . extra lectum in calle cubilis super vna tabula, vel assere” (p. 476b).56. Ibid.: “sed in actu successiuo, prout quoitidie non habere debitum à marito, & ob id quotidie subesse

cruciatui isti appetitus generationis, et quotidie timere mortem comminatam, et singulis horis dicituriustus dolor, et sic respectu ultimi doloris semper dicitur fieri incõtinenti, quia in actibus successiuisres semper dicitur integra, & non plene perfecta, respectu actus instantis, & futurorum . . .” (“butin successive action, as every day not to be paid the marital debt by her husband, andtherefore to be every day subject to that torment of the appetite of generation, and everyday to fear the death with which she was threatened, and every hour, [the provocation] iscalled just grief, and thus in respect of the final grievance is always said to take placestraight away, since in successive actions the case is always said to be fresh, and not fullycompleted, in respect of the present act and future ones”), p. 478b.

57. See Menocchi, op. cit. 513a (2.356.32); the case was decided on 20 July 1592 with Menocchi’sparticipation. Ruggero Beltrami (“Ruglerius Baltramus”), who had arranged for his fatherto be killed, was sentenced to serve in the galleys for life; mitigation was due, not to thegrounds alleged by Ciriaco, but to the defendant’s youth (he was only 16) and the pressureput upon him by his mother and by his father’s enemies.

58. One might object that reaction to a last-straw provocation after previous patience is con-


fine and a spell in a nunnery (“Condemnata fuit in peçnam extraordinariam pecuniariam, etad standum in Monasterio ad certum tempus”).

The two cases next travelled north to the very country in which Thysius was toexpress his disapproval. When Antonius Matthaeus II (1601–54), professor at Utrecht,in his commentary on Roman criminal law as preserved in books 47 and 48 of theDigest, seeks to qualify the current doctrine that the circumstances in which a fathermay kill his son without incurring the penalty for parricidium encompass such iustusdolor as would have justified disinherison, he cites the case of D. 48. 9. 5 more fullythan Ciriaco had done, observing that although the father’s grief excused him thesupreme penalty (“Iustissimus dolor fecit, ut ultimum supplicium remitteretur”), his crimeled to his deportation none the less. Without a transition, he then quotes word forword the two stories from Valerius, with the comment that these women, havingdefiled themselves with parricide under the power of a most just grief, were neitheracquitted or condemned (“Hæ igitur, quoniam justissimo dolore commoteç parricidio secontaminaverant, neque absolutæ, neque damnatæ sunt”), whereas Orestes in the legend,having avenged his father’s murder on his adulterous mother, had been acquitted, asCicero puts it, when the human votes were divided, not merely by a divine vote, butby that of a most wise goddess (“variatis hominum sententiis, non solum divina, sed etiamDeæ sapientissimæ sententia”).59 Only after turning to children who kill parents does henotice that his ancient examples are relevant to that and not the converse:

Accedit quod cum amor à se ipso incipiat, semperque genu [misprinted genus]tibia propius sit,60 non videatur filius salvâ conscientia salutem propriam postponeresaluti parentis. Præjudicio denique non hominum solum, sed & Deorum hæcsententia firmata videtur. Quippe, ut modo commemoravimus, filiam, quae justissimodolore impulsa necaverat fuste matrem, Popilius prætor damnare non sustinuit.

fused with delayed and deliberate reaction, such as Donna Paola (as alleged) and Beltramimanifested after repeated torments and the Woman of Smyrna after a single offence, if as inGellius she took the time to prepare and administer poison (the Matricide may have reactedon the spot). Nevertheless, the case may be commended to those who have recently urged,and even persuaded, courts in common-law jurisdictions to deal leniently with batteredwives who kill their husbands otherwise than in immediate self-defence.

59. De criminibus ad lib. xlvii. et xlviii. Dig. commentarius (Utrecht: Johan van Waesberge, 1644),585–6; see Cicero, Pro Milone 8. Matthaeus, said in the Biographisch Woordenboek der Nederlanden(xii [1869] 386) to have combined a philosophical head and a humane heart (“een wijsgeerighoofd en een menschelijk hart”), also admits Verginius’ right to kill his daughter, and defendsthe mother of 2 Kings 6: 26–9 who killed her son for food during a siege, but draws the lineat Horatius, “qui rectius à Tullo rege damnatus, quàm ad populum provocato judicio absolutus est.Non enim magnum scelus, atque adeò nec justissimus dolor fuit, lugeri à sponsa hostem sponsum.Nisi fortasse etiam Davidem Israelitarum regem magnum scelus admisisse putamus, cum parta àJoabo victoria, luxit tamen, & impatienter quidem, mortem filii perduellis” (“who was more rightlycondemned by King Tullus than acquitted on appeal to the people. For it was no greatcrime, and so no very just grievance either, that an enemy fiancé should be mourned by hisfiancée. Unless perchance we consider that David king of the Israelites also committed agreat crime, when after Joab had won the victory he yet mourned, and passionately at that,the death of his son the traitor”).

60. See Erasmus, Adagia 1. 3. 90–1, Opera Omnia, II. i, ed. M.L. van Poll-van de Lisdonk, M.Mann Phillip, and Chr. Robinson (Amsterdam: North-Holland, 1993), 196–7.

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Orestes autem parricidium parricidio ultus, etiam Deæ sapientissimæ voce liberatusest.61

Furthermore, since love begins with oneself, and the knee is always closerthan the shin, it would not seem that a son can with a sound conscience puthis own safety second to a parent’s. Indeed, this opinion seems to be con-firmed by the prior judgment not only of human beings, but even of gods;seeing that, as we have just mentioned, the praetor Popilius could not bearto convict the daughter who under the impulse of a most just grief hadcudgelled her mother to death, and Orestes, having avenged murder withmurder, was actually acquitted by the vote of a most wise goddess.

Gone is the passion of vengeance, blasted by Matthaeus’ cold northern air; in-stead, the precedents are justified by self-preservation, of which even as he tells themthey bear no trace. No doubt the Matricide might reasonably apprehend danger fromher mother, but that was not the basis of her defence; had Orestes been concerned onlyto protect himself, he would have let his grievance lie and not returned to Argos.Moreover, although Cicero invokes his case to justify a political murder (not a parri-cide) that he implausibly denies his client committed, in one of Euripides’ best-knownplays Clytemnestra’s father Tyndareus criticized Orestes for killing his mother insteadof prosecuting her (Orestes 500–2)62—thus raising the very question that in the Womanof Smyrna’s case (to which Matthaeus does not return) had troubled John of Salisburyand would trouble Thysius.

So far, the point of Valerius’ stories has been that in cases of iustus dolor courtshad avoided convicting; for Giovanni Domenico Rinaldi or Raynaldus (1628–c.1713), aprominent jurist and a canon of St Peter’s, it was that they had avoided acquitting. Tobe sure sons who killed their fathers might sometimes not be liable to the penalty forparricide;

Verum quia res est mali exempli evulgare, quod filii valent absque grauissima, &seuerissima pœna percutere, & Patrem occidere crederem63 Reipublicæ expedire,quod eueniente casu causa relinquatur indecisa, vt docuerunt nos Judices Areopagitæ,qui ad Consulationem [sic] Dolabellæ distulerunt ad centum annos condemnationemeius, quæ virum, & filium interemerat ex quo iuuenem, quem ex priore viro genueratoccisum ab illis compererat, tacitè indicantes non expedire absoluere, & iniustumesse condemnare delinquentem, vt refert Gram. dec. 5. num. 21. & ex ValerioMaximo lib. 8. cap. primo Anton. Matthæus loco sæpe citato cap. 2. num. 10.64

But since it sets a bad example to make it known that sons may strike andkill their father without the heaviest and most serious penalty, I am inclinedto think it is in the public interest that if the situation arises the case should

61. Ibid. 12 (588). Matthaeus then cites counter-arguments and authorities.62. Tyndareus indeed secures Orestes’ conviction in the Argive assembly, whereupon Orestes

turns hostage-taking terrorist before being rescued by Apollo.63. i.e. Italian crederei, good Latin crediderim.64. Observationes criminales, ciuiles, et mixtae, liber primus (Rome: N. Chellini, 1688), 387a (cap. VI,

§ 1. 48–9).


be left undecided, as the Judges of the Areopagus taught us, who on beingconsulted by Dolabella put off for a hundred years the condemnation of thewoman who had killed her husband and son because she had learnt thatthey had killed the youth she had borne by her previous husband, silentlyindicating that it was inexpedient to acquit, and unjust to condemn, thecriminal, as Grammatico reports at Dec. 5. 21 and Antonius Matthaeus, op.cit. 2. 10 out of Valerius Maximus 8. 1.

Ten years later Giacinto degli Arcangeli, pauperum procurator at Rome, defendedGuido Franceschini and his four accomplices for the murder of his wife FrancescaPompilia Comparini and her parents, or putative parents, Pietro Comparini and ViolantePeruzzi. The essential facts of the case—restored to public attention by Robert Brown-ing in The Ring and the Book (1868–9)—are as follows.65 Count Guido, an impoverishednobleman from Arezzo, had attempted to mend the family fortunes by marrying thedaughter of a Roman bourgeois; the bride was accompanied to Arezzo by her parents.Relations between the two families (in particular the two mothers) broke down; Pietroand Violante attempted unsuccessfully to break the marriage by claiming (probablybut not provably with truth) that Francesca Pompilia was not their daughter. Theyreturned home, leaving Guido to vent his outrage upon his wife, who, increasinglyunhappy and ill used, fled for Rome in the company of Canon Giuseppe Caponsacchi,having drugged and robbed her husband; however, he recovered, gave chase, andcaught the pair sharing a bedroom at an inn. He drew his sword, but unnerved bytheir resistance had recourse to law. For complicity in Francesca Pompilia’s flight, forabduction, and for carnal knowledge of her, the canon was relegated for three years toCivitavecchia; she was sent pending trial to the Conservatorio di Santa Croce dellaPenitenza at the Scalette in the Via della Lungara, but on proving pregnant was re-leased into house arrest with her parents. There she gave birth to a son, GaetanoFranceschini, who was promptly put out to nurse; Guido, already smarting under theaffront to his honour, which he had signally failed to avenge, was sufficiently infuri-ated by the news to hire four ruffians, with whom he rode from Arezzo and burst intothe Comparini home. Pietro and Violante were killed; Francesca Pompilia lived longenough to make a saintly speech before a priest,66 denying all misconduct and forgiv-

65. Browning’s “Old Yellow Book,” now held in Balliol College Library, and published infacsimile with an English translation by Charles W. Hodell, The Old Yellow Book (Washing-ton, D.C.: Carnegie Institute of Washington, Publication No. 89, July 1908), is replicated,supplemented, and at times corrected by MS Cortona, Biblioteca Comunale 250 (333), fols.71–378; see Beatrice Corrigan, “New Documents on Browning’s Roman Murder Case,” Studiesin Philology 49 (1952), 520–33; ead., Curious Annals: New Documents Relating to Browning’sRoman Murder Story (Toronto: University of Toronto Press, 1956); ead., “Browning’s RomanMurder Story,” English Miscellany 11 (1960), 333–400. In addition, two manuscript narrativescirculated in various recensions (Corrigan, Curious Annals, pp. xvii–xix).

66. Which, even had she been the ignorant and illiterate girl she pretended, splendide mendax, tobe, she could easily have done out of the legends of virgin martyrs and the like on whichshe must have been brought up. The new evidence, discussed at length by Corrigan, Curi-ous Annals, pp. xix–xlv, amply justifies the scepticism of John Marshall Gest, The Old YellowBook, Source of Browning’s The Ring and the Book: A New Translation with Explanatory Notes andCritical Chapters upon the Poem and its Sources, 2nd edn. (Philadelphia: University of Pennsyl-vania Press, 1927), 600–19; Anna Foa, Dizionario biografico degli italiani, xxvii (1982), 678–82,s.n. “Comparini, Francesca Pompilia,” clearly disbelieves in her innocence, but thinks allthe better of her for resisting and dying unsubdued.

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ing her murderers, which made a deep impression on the court – and on Browning.The five men were executed on 22 February.67

Arcangeli found in Ciriaco the Milanese precedent for revenge ex intervallo andDonna Paola’s iustus dolor, though defending a brutal husband he mentions only therefusal of intercourse, the reverse of Guido’s fault. He also found the Woman ofSmyrna, whose case he pursues back to Valerius; yet his list of authorities omits theone writer whose error, ascribing the original crime to the husband alone, had permittedhim to twist the case anew. It followed from Grégoire’s account that the son of thesecond marriage was an innocent victim, yet his murder was still justified by iustusdolor; therefore, even if Pietro and Violante had been entirely free from the blameArcangeli has directed against them for bringing the marriage about on false pre-tences, Guido ought still not to be punished for their slaughter:

Et non semel in contingentia facti euaserunt Impunes qui iusto dolore motiapposuerunt manus etiam in Innocentes; Mulier enim quædam Smirnea Virum, &Filium ex eo conceptum interfecerat ex quo Vir perdiderat filium suum primimatrimonij, accusata deinde apud Dolabellam Proconsulem, neque duabus cædibuscontaminatam liberare, neque iusto dolore impulsam condemnare voluit, sed remisitad Areopagum Sapientissimorum Iudicum Cætum, vbi, cognito de Causa, responsumfuit, vt ipsa, & Accusator post centum Annos redirent, & sic duplici ParricidioRea, quàmuis etiam Innocentem occidisset, vndequaque euasit Impunis, vt refertValer. Max. Dictor. factor. memorab. lib. 8. cap. 1. de Public. Iudic. vers.Eadem hæsitatione, Tiraquell. de Poen. temperan. d. Caus. 1. nu. 17. circamed. Menocch. de Arbitrar. cas. 356. num. 60. Cyriac. contr. 105. num. 39.Gramm. dec. 5. num. 23.68

And more than once, in an actual case,69 people have escaped punishmentwho, moved by a just grief, have laid hands even on the innocent. For awoman of Smyrna had killed her husband and her son by him because thehusband had killed her son by her first marriage; accused then before theproconsul Dolabella, he refused either to release a woman stained by twomurders or to condemn her when she was motivated by a just grief, butreferred her to the Areopagus, an assembly of most wise judges, where,after the case had been heard the response was given that she and heraccuser should return before them in a hundred years’ time, and thus,guilty70 of a double murder, though she had killed an innocent person too,she escaped entirely scot-free, as is related by Valerius Maximus . . .

Contemporary reports show that the virtuosity of the defence pamphlets was much

67. On the legal system, and the lawyers, see Gest 51–69, who demonstrates that Browningfailed to understand the ways of lawyers and at pp. 620–30 fails no less lamentably tounderstand the ways of poets.

68. The Old Yellow Book, ed. Hodell, p. xxii; the speaker is “H[yacinthus] de Arcangelis PauperumProcur[ator].” Donna Paola (unnamed) follows immediately (cf. Browning, The Ring and theBook, 8. 950–62); for the Milanese case see p. xvi.

69. So Gest 412: “when the case has actually occurred”; cf. Arcangeli at Old Yellow Book, cii(translated Gest 318).

70. Reus, like “culprit” in older English, may indicate either guilt or accusation.


admired by connoisseurs of learning and ingenuity; given indeed that even if FrancescaPompilia had committed the adultery she so resolutely denied Count Guido’s ven-geance was not entirely of the kind expected, the lawyers had to exert all their skill,erudition, and invention. The Court, convinced of her chastity, was unmoved,71 norwas the Pope swayed by Guido’s plea of having taken minor orders, his gentle birth,or the finding against the fugitives in the Ruota of Florence into pardoning so gross anact of violence.

Nevertheless, the arguments for the Count and his accomplices would come backto life in book VIII of The Ring and the Book, which portrays that gloriously self-satisfiedadvocate, doting father, and exquisite gourmet “Dominus Hyacinthus de Archangelis”preparing his submission while thinking about dinner for rich relations and his son’sprecocity in Latin; here the Woman of Smyrna makes her final gala appearance:

But even,—prove the pair not culpable, 902Free as unborn babe from connivance at,Participation in, their daughter’s fault:Ours the mistake. Is that a rare event?Non semel, it is anything but rare, 905In contingentia facti, that by chance,Impunes evaserunt, go scot-free,Qui, such well-meaning people as ourselves,Justo dolore moti, who aggrieved 910With cause, apposuerunt manus, layRough hands, in innocentes, on wrong heads.Cite we an illustrative case in point:Mulier Smirnea quædam, good my lords,A gentlewoman lived in Smyrna once, 915Virum et filium ex eo conceptum, whoBoth husband and her son begot by him,Killed, interfecerat, ex quo, because,Vir filium suum perdiderat, her spouseHad been beforehand with her, killed her son, 920Matrimonii primi, of a previous bed.Deinde accusata, then accused,Apud Dolabellam, before him that satProconsul, nec duabus cædibusContaminatam liberare, nor 925To liberate a woman doubly-dyedWith murder, voluit, made he up his mind,Nec condemnare, nor to doom to death,Justo dolore impulsam, one impelledBy just grief; sed remisit, but sent her up 930Ad Areopagum, to the Hill of Mars,Sapientissimorum judicum

71. Even granted her guilt, however, the law, save perhaps in the matter of revenge ex intervallo,was against him (Gest 610–14).

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Cœtum, to that assembly of the sageParalleled only by my judges here;Ubi, cognito de causa, where, the cause 935Well weighed, responsum est, they gave reply,Ut ipsa et accusator, that both sidesO’ the suit, redirent, should come back again,Post centum annos, after a hundred years,For judgment; et sic, by which sage decree, 940Duplici parricidio rea, oneConvicted of a double parricide,Quamvis etiam innocentem, though in truthOut of the pair, one innocent at leastShe, occidisset, plainly had put to death, 945Undequaque, yet she altogether ’scaped,Evasit impunis. See the case at lengthIn Valerius, fittingly styled Maximus,72

That eighth book of his Memorable Facts.73

*

Valerius Maximus recounts two stories of judicial evasion, the Matricide and the Womanof Smyrna; his sources being unknown, the tradition considered here begins with him.If his aim was to provide subjects for the controversiae declaimed in the schools ofrhetoric, there is no sign that he was successful; if to provide exempla to adduce inargument, only the Woman of Smyrna was so used in antiquity, and then as retold byAulus Gellius. The Matricide’s tale is told so baldly that not even the legal proceduresare explained, let alone the ground for the quarrel between the defendant and hermother; its only function, until the Renaissance lawyers rediscovered it, was to suggesta few details for Gellius’ retelling of the companion story, which even in Valerius hasmore colour.

On the other hand, the motives that Valerius gives for both evasions, that thecrimes avenged by the respective defendants deserved to be punished, but those com-mitted by them could not be forgiven by formal acquittal, set the tone for futureauthors. Even Gellius, for all his sympathy with inflexible justice and stern severity,74

admits that the Woman of Smyrna deserved mercy, if only because her victims de-served none; Ammianus, himself no enemy of stern justice and ferocious punish-ments,75 contrasts the forbearance of the Areopagites with the unjust cruelty of Valens,

72. This interpretation of the cognomen was anticipated by early French translators, who speakof Valère le Grand (anon., Lyon: Mathieu Huss, 1489; J. Le Blond, Paris: Gilles Corrozes,1557).

73. Ed. Stefan Hawlin and Tim Burnett, The Poetical Works of Robert Browning, viii (Oxford:Oxford University Press, 2001), 341–3.

74. See Holford-Strevens, Aulus Gellius, 34 with n. 77.75. Observe him defending actions by Theodosius the elder that others found excessive (29. 5.

23–4); cf. John Matthews, The Roman Empire of Ammianus (London, 1989), 374. Indeed, for allhis condemnation of acerbitas and like vices, he sets more store by severitas than by clementiaor lenitas; see Axel Brandt, Moralische Werte in den Res gestae des Ammianus Marcellinus(Hypomnemata, 122; Göttingen: Vandenhoeck & Ruprecht, 1999), 174–93. Timothy D. Barnes,Ammianus Marcellinus and the Representation of Historical Reality (Cornell Studies in Classical


which brought down divine vengeance on him.76 Even should we accept the common-place that as Roman private law, during the course of the Empire, was increasing inhumanity, criminal law was increasing in savagery,77 nevertheless, even in culturesthat favour the severe treatment of offenders, there are always individuals whosecases arouse sympathy. The Woman of Smyrna becomes their symbol.

This is possible, however, only if the two wrongs are allowed to make, if not aright, then a good substitute for one. That causes difficulty to John of Salisbury, who isattempting to expound an ideal morality as well as to find arguments the most likelyto prevail in the real world. In book 4, chapter 11 of Policraticus, “Quae sit alia mercesprincipum” (“What other reward of princes there is,” sc. besides the felicity promisedthem in heaven), princes who reign justly will hand on their thrones to their sons,something that to their unspiritual mind seems more attractive, if only as preservingthe glory of their line. Whatever Alexander may have found amongst the Bragmanni,or Vergil have said of Aeneas and his company, modern rulers care only about theirsons; contrast Brutus, who had his treasonable sons killed. At this point John is tornbetween horror at the parricidium and applause for Brutus’ public spirit; the case, hesays, had been argued both ways. Indeed it had, for whereas in Livy Brutus overseesthe execution in the line of official duty,78 in Florus he performs it himself in mid-assembly.79 This is too much for John, who substitutes a mere order,80 but takes fromFlorus both the designation of the act as parricidium and the comment that Brutus hadadopted the people in lieu of his children. John at first seeks to evade judgment, citingthe Woman of Smyrna’s case as an exemplum for such evasion; but in telling it he soadapts it as to prepare for his decision against both her and Brutus, which is plainlyinfluenced by St Augustine’s unambiguously hostile account in De ciuitate Dei 3. 16.81

John indeed goes further in converting Vergil’s comment on Brutus’ love of countryand thirst for glory82 from consolation to condemnation: where Augustine had written“et tamquam ad consolandum infelicem subiunxit” (“and, as if to console him in his un-happiness, added”), John has “at infortunium parricidii sic uersu sequenti excusat ut inanisgloriae arguat uanitatem” (“but in the following verse excuses the misfortune of murderin such a way as to accuse the vanity of empty glory”). However, he continues, there is

Philology, 56; Ithaca and London, 1988), 101–2 even finds a “sadistic quality” in his writing(cf. Brandt’s review of Barnes, above in this volume of IJCT, 7 [2000/2001], 442).

76. Ammianus 29. 2. 30.77. But see Jill Harries, Law and Empire in Late Antiquity (Cambridge: Cambridge University

Press, 1999), 135–52.78. Livy 2. 5. 5: poenae capiendae ministerium patri de liberis consulatus imposuit, et qui spectator erat

amouendus, eum ipsum fortuna exactorem supplicii dedit (“the office of consul imposed on thefather the duty of exacting punishment from his children, and the very man who were hebut watching ought to have been sent away, Fortune appointed to be the agent of execu-tion”).

79. Florus 1. 3. 5: contione media uirgis cecidit securique percussit (“in the midst of a public gather-ing thrashed them with rods and beheaded them with an axe”).

80. John of Salisbury, ed. cit. (n. 26), 268: “in media contione uirgis caesos tandem securi percutiiussit” (“in the midst of a public gathering ordered them to be thrashed with rods andfinally beheaded with an axe”).

81. See Sabine MacCormack, The Shadows of Poetry: Vergil in the Mind of Augustine (Berkeley, LosAngeles, and London: University of California Press, 1998), 107 with n. 61, 196–7.

82. Vergil, Aeneid 6.823: uincet amor patriae laudumque immensa cupido (“love of country willprevail, and unbounded desire for being praised”).

513Holford-Strevens

no need to worry lest anyone should follow Brutus’ example, since rulers indulge theirchildren’s vices at the expense of the common weal; if the good Christian in John findsagainst Brutus in order to condemn the punishing of crime by crime, the good writerin John finds against him in order to make an ironic contrast between an unlikely andan all too likely transgression rather than a censorious contrast between unattractivevirtue and all too tempting vice. In this the Woman of Smyrna plays her part inhelping John off the fence.

If John wrote soon after the revival of Roman law, Rabelais wrote when theGlossators and Postglossators had overlaid it with four centuries’ worth of dry exposi-tion in crabbed Latin; similar exposition had been applied to canon law, often pro-fessed by the same masters. No less than in the Schoolmen’s logic and theology, bothmatter and manner revolted the practitioners of the New Learning; and in any age theworkings of the legal system invite satire. Rabelais’s response is Bridoye, who bothpromotes the proverbial alea iudiciorum from metaphor to reality, and in chapters 39–42 of the Tiers Livre defends his practice in a masterpiece of parody, replete withaccurate references to genuine texts applied as legal texts commonly were and are forpurposes their authors never dreamt of. Pantagruel pleads in mitigation that the onequestionable judgment under appeal should be outweighed by the many just verdictspassed in Bridoye’s court for over forty years; he and his companions then debate thematter amongst themselves, concluding in favour of dice against legal argument. TheWoman of Smyrna is adduced by a sceptical speaker willing to allow that dice mightbe appropriate in some cases but surprised that Bridoye could use them successfullyfor so long; in that context Gellius’ account must be transvalued to make acquittal andconviction equally just. The more serious sceptic Montaigne prefers to shrink fromboth.

The New Learning, for its part, had not left the lawyers unaffected. To be surethey did not discard their medieval predecessors (though as time went by they natu-rally quoted them less often than more recent writers), let alone permit the morezealous humanists to rewrite the Digest by expelling the supposed interpolations ofTribonian,83 but they admitted arguments and precedents from classical and othernon-legal sources (not always to the advantage of their reasoning). For this purpose,Valerius Maximus’ exempla were well suited, with brief statements of the facts thatcould be easily accommodated within a longer argument. We have seen that AntonioBarattuccio, defending men who, if their factual assertions stood up, had defendedtheir lives and their honour against a bloodthirsty brute, adduced the Woman ofSmyrna out of Valerius not Gellius; indeed, although some juristic writers cite or evencopy words from Gellius, and Pierre Grégoire draws on Ammianus too, Valerius’account was the most useful, since it referred to that iustus dolor which, on the highestauthority, it was difficult to moderate.84

83. See Tony Honoré, Tribonian (London: Duckworth, 1978), 247–51. The enterprise was re-sumed, when it could no longer upset the work of the courts, in the late nineteenth andearly twentieth centuries, to be followed by a reaction that rehabilitated many of the dis-puted passages and assigned others to interpolators anterior to Tribonian. See H. F. Jolowiczand Barry Nicholas, Historical Introduction to the Study of Roman Law, 3rd edn. (Cambridge:Cambridge University Press, 1972), 486–9.

84. D. 48. 5. 39 (38). 8, cited above. In his commentary on part 2 of the Digestum Novum Bartolusde Saxoferrato had commended the lex Imperatores to the student’s memory: “Tene mentihunc casum quia bonus est” (“Bear this case in mind, for it is good”), edn. Venice: Torresano,1489, sig. qQ 2r.


Tomasso Grammatico, looking up the text that Barattuccio had cited, came acrossthe Matricide, at last rescued from oblivion; though never as popular as her Smyrnaeansister, she might now be suffered as her companion. It no longer mattered that themanner of the praetor’s evasion was not stated, only that in this and the other case noguilty verdict had been rendered; indeed, the fact of evasion, in both cases, was of lessconcern than the indulgence, tantamount de facto to acquittal, bestowed on the ag-grieved killers.85 This indulgence could be cited in general discussions, whether ofleniency as a principle to be commended (Tiraqueau), of killings that did not consti-tute parricidium (Grégoire), or of cases open to judicial discretion (Menocchi); it mightalso be urged as a precedent for mercy in a particular case (Ciriaco). Although ithappens here to be urged on behalf of a woman, her sex is relevant only to thegrounds of her iustus dolor, not to her licence to act upon it: a doctrine advanced by theancient jurists to excuse, against strict law, the murder by husbands of adulterouswives could hardly be confined to angry women. Moreover, the vengeance licensed bythis doctrine might be eaten cold, and the killing procured through agency.

So wide a scope for the principle was bound to arouse disquiet. Matthaeus, facedwith precedents now firmly entrenched in the literature, attempts to put them onanother footing, that of self-defence; he does not go so far as his compatriot Thysius,who, presupposing a society that would have given the Woman of Smyrna a legalremedy, roundly condemns her failure to seek it, but the very contortions of his argu-ment reveal his intellectual distress. It took Rinaldi, who makes large use of Matthaeus’exposition, and follows him in allowing self-defence even against a father, to recognizethat the Woman of Smyrna had no more been acquitted than convicted; the point ofthe precedent is no longer that such killings are excusable, but that it would, as we say,“send the wrong signal” to admit it.

If the Areopagites, apprised of this reading in the next world, might think that atlast they had been correctly understood, they would have been brought near to de-spair by the force put upon the case in the defence of Guido Franceschini. To be sure,the misrepresentation of the facts had been anticipated by Pierre Grégoire; but itremained for Giacinto degli Arcangeli to find in them iustus dolor excusing slaughter ofthe innocent. However, the precedent that had helped save defendants’ lives in Naplesand Mantua failed in Rome, serving only (with much else in the legal arguments) toarouse the scorn of an Englishman in whose country even the most ingenious advo-cate would no more have cited the Woman of Smyrna than Aelian’s elephant “who,brute beast though he were, / Yet understood and punished on the spot / His master’snaughty spouse and faithless friend.”86 Yet for all Browning’s indignation at once atthe argument and at the crime that it defended, it was by his artistry that the twotraditions, one literary, the other legal, into which Valerius’ second anecdote, unlikehis first, had entered were reunited at the last.

85. Nor did anyone ask how, in either case, the factual truth of the defence had been estab-lished: Valerius’ “abunde constabat” in the one, and Gellius’ “controuersia non erat” in theother are good enough. That is lawyers’ way with precedent.

86. Browning, The Ring and the Book, 1. 234–6, ed. cit. (n. 73), vii. 19; see Old Yellow Book, cxlv,citing Aelian, De natura animalium 11. 15. Cf. ibid. 8. 17, and on the context of Aelian’sanimal stories, his affinity to Longus in Daphnis and Chloe, and echoes in modern times seeWolfgang Hübner, “Der Mensch in Aelians Tiergeschichte,” Antike und Abendland 30 (1984),154–76 (on the elephant p. 160).

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