VM Getting Away With Murder The

Holford-Strevens
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Getting Away With Murder: The

Literary and Forensic Fortune of
Two Roman Exempla
LEOFRANC HOLFORD-STREVENS
Valerius Maximus tells two stories of women who, having killed close relations to avenge
murders committed by their victims, were brought before a court but neither acquitted
nor convicted. Of these stories, the second, concerning a woman from Smyrna whose case
was adjourned by the Areopagus for a hundred years, enjoyed a literary fortune, being
taken up by Aulus Gellius and from him by Ammianus Marcellinus, John of Salisbury,
Rabelais, and Montaigne; the only author to take the womans sex into account, John of
Salisbury, held that she was in the wrong. However, it was from Valerius that the two
stories passed into sixteenth- and seventeenth-century civilian jurisprudence, which used
them, without consideration of their subjects gender, to illustrate the principle of iustus
dolor, or justified grief, as a defence or mitigation in cases of homicide; the Woman of
Smyrna was even exploited, with a misrepresentation of the facts, to defend the conduct
of Guido Franceschini in the case that gave rise to Brownings 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 to
the Emperor Tiberius about AD 30, concludes his chapter on notorious criminal trials
with two cases in which judgment was avoided, both concerning the crime known to
the 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 damnati
neque absoluti sunt, apud M. Popillium Laenatem praetorem quaedam, quod
matrem fuste percussam interemerat, causam dixit.2 De qua neutram in partem
latae sententiae sunt, quia abunde constabat eandem ueneno necatorum liberorum
I am grateful to Professor Wolfgang Haase, the editor of this journal, for his comments and
some references included below and to Rob C. Wegman and Graham Whitaker for copies of
rare texts.
1.
2.
See O. F. Robinson, The Criminal Law of Ancient Rome (London: Duckworth, 1995), 467.
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 is
attested; Friedrich Mnzer, Das Konsulpaar von 139 v. Chr., Klio, 24 (1931), 3338. Valerius
language excludes a trial before the people (iudicium populi); the location of the case in this
Leofranc Holford-Strevens, 67 St Bernards Road, Oxford OX2 6EJ, United Kingdom.
International Journal of the Classical Tradition, Vol. 7, No. 4, Spring 2001, pp. 489514.
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International Journal of the Classical Tradition / Spring 2001
dolore commotam,3 quos auia filiae infensa sustulerat, parricidium ultam esse
parricidio; quorum alterum ultione dignum, alterum absolutione non dignum
iudicatum est.
2. Eadem haesitatione P. quoque Dolabellae, proconsulari imperio Asiam
obtinentis,4 animus fluctuatus est. Mater familiae Zmyrnaea uirum et filium
interemit, cum ab iis optimae indolis iuuenem, quem ex priore uiro enixa
fuerat, occisum comperisset. Quam rem Dolabella ad se delatam Athenas ad
Areopagi cognitionem relegauit, quia ipse neque liberare duabus caedibus
contaminatam neque punire eam iusto dolore inpulsam sustinebat. Consideranter
et mansuete populi Romani magistratus, sed Areopagitae quoque non minus
sapienter, qui inspecta causa et accusatorem et ream post centum annos ad se
reuerti iusserunt, eodem adfectu moti quo Dolabella. Sed ille transferendo
quaestionem, hi differendo damnandi atque absoluendi inexplicabilem
cunctationem uitabant.5
1. And to record too those who were tried for their lives but neither convicted nor acquitted: a woman pleaded her case before the praetor Marcus
Popillius Laenas because she had beaten her mother to death with a
cudgel. No votes were cast either way on her, because it was amply
proved that, stirred by grief for her poisoned children, whom their grandmother had done away with out of hatred for her daughter, she had
avenged murder with murder. Of these (murders), the one was judged
to deserve vengeance, the other not to deserve acquittal.
3.
4.
5.
chapter and not the next suggests a iudicium publicum before a murder-court (quaestio inter
sicarios) presided over by the praetor but decided by the vote of the jurors (iudices), rather
than a iudicium priuatum on a demand for the matricides surrender to her victims kindred,
decided by the praetor after non-binding advice from his consilium. It is disputed whether
the quaestio inter sicarios over which, precisely in 142 BC, the blatantly corrupt L. Hostilius
Tubulus presided was the subsequently attested standing court (quaestio perpetua) or a special commission set up in response to some grave breach of public order. See in general
Wolfgang Kunkel, Untersuchungen zur Entwicklung des rmischen Kriminalverfahrens in
vorsullanischer Zeit (Abhandlungen der Bayerischen Akademie der Wissenschaften,
philosophisch-historische Klasse, NF 56; Munich: Verlag der Bayerischen Akademie der
Wissenschaften, 1962), 4851, 98105.
Dolor, though translated grief, includes grievance and resentment, not only immediate,
and often entails revenge.
P. Cornelius Dolabella, praetor in 69 BC, was sent to Asia after his year of office in Rome; he
is probably the father of Ciceros temporary son-in-law, the suffect consul of 44 BC, who
executed the Caesaricide proconsul of Asia, Gaius Trebonius, at Smyrna the following year
but 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), 835; cf. A. N. Sherwin-White, Roman Society and Roman Law in the New Testament
(Oxford: Clarendon Press, 1963), 1723. The proconsul, hearing the case extra ordinem with a
consilium chosen by himself, was free to do justice as he saw fit.
Valerius Maximus, Facta et dicta memorabilia, 8. 1. amb. 12; the addition of the first dignum
in 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. 5056; D. R. Shackleton Bailey, 2 vols. (Loeb
Classical Library 4923; Cambridge, Mass., and London: Harvard University Press, 2000), ii.
2024.
Holford-Strevens
491
2. The same doubts troubled the mind of Publius Dolabella, too, when he
held Asia with a proconsuls command. A married woman of Smyrna
killed her husband and son, giving as her reason the discovery that at
their hands the youth of excellent character whom she had borne by her
first husband had been done to death. When the matter was laid before
him, Dolabella sent it on to Athens for the Areopagus to hear,6 since for
his part he could bear neither to release a woman stained by two murders nor to punish her when she was motivated by a just grief. The
magistrate of the Roman people displayed reflection and mercy, but the
Areopagites too acted no less wisely: after looking into the case they
ordered both the prosecutor and the defendant to return before them in
a hundred years time, moved by the same sentiments as Dolabella. But
he avoided the insoluble dilemma between conviction and acquittal by
transferring the trial, they by putting it off.
Modern readers will be struck by the absence of any suggestion that either woman
ought to have proceeded by way of law; in the former case (the Matricide) the reason
for 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 by
maternal feelings; indeed, Valerius introduction uses the generic masculine (eos . . .
qui . . . adducti . . . damnati . . . absoluti).
Against the conventional notion that Valerius intended to supply public speakers
with a handy fund of anecdotes for rhetorical elaboration, it has recently been argued
that he intended to illustrate right and wrong conduct for his readers moral benefit;8
since his own preface professes neither purpose, we may reasonably suppose he envisaged them both together. In practice, the Matricide, who enjoyed far less of a literary
fortune,9 served only as a precedent for not passing judgment; the Woman of Smyrna
has 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 Renaissance lawyers, and because a referral to the renowned Areopagites and an ingenious
postponement are intrinsically more interesting than the bald statement that a verdict
was evaded, the contrivance not specified. For the same reason it also appealed to
writers anxious to demonstrate their narrative skills.
The first of these was Aulus Gellius, in whose Attic Nights, a miscellany compiled
for 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 forbidding appeals to emotion).
7. The third chapter of book 8 is concerned with women who conducted cases on their own or
others behalf before (Roman) magistrates (Quae mulieres apud magistratus pro se aut pro
aliis 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: The
World of Valerius Maximus (Exeter: University of Exeter Press, 1996).
9. She reappears, misleadingly (dicta causa absoluta est, she pleaded her case and was acquitted), in the late-antique epitome of Julius Paris, which summarizes Valerius chapter by
chapter, but not in the Valerio-Gellian florilegium first attested in a MS of c.1100, which has
the Woman of Smyrna only in her Gellian recension.
10. L. A. Holford-Strevens, Aulus Gellius (London: Duckworth, 1988), 1314. On Gellius aims
492
bones of Valerius tale take on life and flesh, albeit with a false reference and the
wrong Dolabella.11
Ad Cn. Dolabellam proconsulari imperio prouinciam Asiam obtinentem deducta
mulier Smyrnaea est. Eadem mulier uirum et filium eodem tempore uenenis clam
datis uita interfecerat atque id fecisse se confitebatur dicebatque habuisse se faciendi
causam, quoniam idem illi maritus et filius alterum filium mulieris ex uiro priore
genitum, adulescentem optimum et innocentissimum, exceptum insidiis occidissent.
Idque ita esse factum controuersia non erat. Dolabella retulit ad consilium. Nemo
quisquam ex consilio sententiam ferre in causa tam ancipiti audebat, quod et
confessum ueneficium, quo maritus et filius necati forent, non admittendum
inpunitum uidebatur et digna tamen poena in homines sceleratos uindicatum
fuisset.12 Dolabella eam rem Athenas ad Ariopagitas ut ad iudices grauiores
exercitatioresque reiecit. Ariopagitae cognita causa accusatorem mulieris et ipsam
quae accusabatur centesimo anno adesse iusserunt. Sic neque absolutum mulieris
ueneficium est, quod per leges non licuit, neque nocens damnata poenitaque, quae
digna uenia fuit. Scripta haec historiast in libro Valerii Maximi factorum et dictorum
memorabilium nono.13
When Gnaeus Dolabella held Asia with a proconsuls command, a woman
of Smyrna was brought before him. She had taken the lives of husband and
son together by poisons secretly administered, and confessed that she had
done so, and said that she had reason for so doing, seeing that those same
men, her husband and son, had ambushed and wickedly killed the womans
son begotten by her former husband, an excellent and most blameless youth.
And there was no dispute that that had happened. Dolabella referred the
matter to his advisers. There was no-one who in a case so double-edged
durst 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 and
his World, in H. Temporini and W. Haase (eds.), Aufstieg und Niedergang der rmischen Welt
(ANRW), II 34. 2 (Berlin and New York: W. de Gruyter, 1994), 183462; particular aspects
are 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. 191841, who notes this chapter at p. 1934.
11. Book 9 instead of 8; there is no basis for inferring that Gellius used a different recension
from ours. (Such errors arouse too much excitement in modern scholars, who would do
better to eliminate them from their own work than speculate about their causes in the
ancients.) Wrong praenomina are frequent in Latin authors, but Gellius has something of a
blind spot about names: Holford-Strevens, Aulus Gellius, 2279. One Gnaeus Dolabella was
consul, 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 that
the vengeance was merited, whereas the indicative uidebatur states the fact of their thinking
it should not go unpunished. These no more imply that Gellius disagrees with either proposition than Valerius comperisset and his own occidissent, reporting the womans confession,
cast doubt on the facts alleged.
13. Aulus Gellius, Noctes Atticae, 12. 7, ed. P. K. Marshall, 2 vols. (rev. edn. Oxford: Clarendon
Press, 1990), ii. 3712. The summary in the list of contents prefixed by Gellius to the work is
Quam ob causam Cn. Dolabella proconsul ream mulierem ueneficii confitentemque ad
Areopagitas reiecerit (For what reason the proconsul Gnaeus Dolabella sent on a woman
who was accused of poisoning and admitted the charge, to the Areopagites).
Holford-Strevens
493
unpunished the admitted act of poisoning by which the husband and son
had been slain, on the other they held that vengeance had been inflicted on
wicked men with the punishment they deserved. Dolabella submitted the
matter to Athens to the Areopagites, as to weightier and more experienced
judges. The Areopagites, having heard the case, ordered the womans accuser and the accused woman herself to appear in a hundred years time.
Thus neither was the charge of poisoning dismissed, which was forbidden
by statute, nor the guilty woman punished, who merited mercy. This story
is 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 the
previous story, Gellius wins the freedom to borrow details from it: the poison employed by the Woman of Smyrna for vengeance has been borrowed from the wicked
grandmother whose crime the Matricide avenged; the idiom sententiam ferre has been
imported for the consilium that as any Roman knew, whether Valerius chose to mention it or not, must have sat with Dolabella. Gellius adds other colour too: not only the
consilium as a whole, but each individual adviser is afflicted with indecision; the Roman
governor defers to the Areopagites greater authority and experience, no everyday
admission even given their high standing and Roman respect for them.14 On the other
hand, he omits Valerius reference to iustus dolor, perhaps because rather than in spite of
his judicial duties and his interest in (mostly older) law,15 for in contemporary practice
it was applied particularly to the angry husband who killed his wife caught in adultery;16 yet we shall see that advocacy could cite the womans story even in this context.
Among the late-antique authors who made large use of Gellius (though never
naming him) was the historian Ammianus Marcellinus,17 who, writing in the early
390s, retells this story to urge, against the cruelty of the emperor Valens, the virtue of
hesitation before passing the death-sentence; he compresses the narrative, but adds on
his own account an adjournment (comperendinatio),18 and enhances the Areopagites
14. See Elizabeth Rawson, Roman Culture and Society (Oxford: Clarendon Press, 1991), 44467.
15. See Holford-Strevens, Aulus Gellius, 21823.
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 for
humiliores, relegation (temporary; see D. 48. 8. 1. 5) to an island for honestiores; as Accursius
would explain, relegari: cum alias poena parricidii teneatur (to be relegated: since otherwise
he 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: Officina Erasmiana, 1968), fol. 229v. See too D. 29. 5. 3. 3, Paul, Sententiae 2. 26. 5 = Mosaicarum et
Romanarum legum collatio 4. 12. 4, and for lay use of dolor in such circumstances e.g. Valerius
6. 1. 13, Juvenal, Satire 10. 31417.
17. See M. J. Hertz, Opuscula Gelliana, lateinisch und deutsch (Berlin: W. Hertz, 1886), 146201.
Others who exploit him in silence are Nonius Marcellus (ibid. 85146, but already noted by
Nonius humanist editor Josias Mercier) and Macrobius, for whom see e.g. Gunnar Lgdberg,
In Macrobii Saturnalia adnotationes (Uppsala: Almqvist & Wiksell, 1936), and more recently
for a specific example of Macrobius use of material from Gellius, Jacqueline Long, JuliaJokes in Macrobiuss Saturnalia: Subversive Decorum in Late Antique Reception of Augustan Political Humor, in this journal (IJCT) 6 (1999-2000), 33755 at 33840.
18. Strictly to the next day but one (perendie), but not always so confined. In some instances this
494
authority still more by noting the tradition that they had decided disputes amongst the
very gods.19
apud proconsulem Asiae Dolabellam Smyrnaea prolem propriam et maritum uenenis
necasse confessa, quod filium ex alio matrimonio ab eis occisum comperisset,20 et
conperendinata, cum consilium, ad quod res ex more delata est, anceps, quid inter
ultionem et scelus statui debeat, haesitaret, ad Areopagitas missa est, Athenienses
iudices tristiores, quorum aequitas deorum quoque iurgia dicitur distinxisse. hi
causa cognita centesimo post anno cum accusatore mulierem adesse iusserunt, ne
aut absoluerent ueneficam aut ultrix necessitudinum puniretur. ita numquam
tardum existimatur, quod est omnium ultimum.21
Before Dolabella, proconsul of Asia, a woman of Smyrna confessed to poisoning her own offspring and husband because she had learnt that they had
killed her son by another marriage; her case was adjourned. When the
council, before which the matter had been laid, in doubt what finding should
be made as between vengeance and crime, was reluctant to decide, she was
sent to the Areopagites, Athenian judges of marked severity, so impartial
that they are said to have settled even the gods disputes. They, having
heard the case, ordered the woman, with her accuser, to appear in a hundred years time, lest either they should acquit a poisoner or she who had
avenged her kindred should be punished. So true it is that22 one never
deems too late what of all things is the last.
The first qualms are heard from John of Salisbury in the mid twelfth century, in
his learned miscellany, treatise of political theory, and much more besides, Policraticus
siue de nugis curialium et uestigiis philosophorum. In discussing the conflicting claims on
a ruler of his children and his country, he considers whether L. Junius Brutus was
right to bring a capital charge against his sons for plotting to restore King Tarquin.23
19.
20.
21.
22.
23.
was compulsory; but Dolabella, hearing a case against a non-citizen extra ordinem, was
master of his own procedure.
Commentators cite Poseidons 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 recall
the Furies prosecution, and Apollos defence, of Orestes for killing his mother to avenge his
father in Aeschylus Eumenides.
The text from Smyrnaea to comperisset is seriously lacunose; I give it as edited by Guy
Sabbah in Ammien Marcellin: Histoire, 6 vols. (Paris, 196899), vi (1999), 20. Other reconstructions have been proposed.
Res gestae 29. 2. 19. The narrative is introduced with the words ut exemplum est illud antiquitati
admodum notum (as is that example very well known to ancient times).
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 nestime jamais trop tardif ce qui
met un terme tout.
On the context see Peter von Moos, The Use of Exempla in the Policraticus of John of
Salisbury, in Michael Wilks (ed.), The World of John of Salisbury (Studies in Church History.
Subsidia 3; Oxford: Blackwell, 1984), 20761 at 2346, 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 des
Mittelalters und der frhen Neuzeit 2; Hildesheim, Zrich, New York: Georg Olms, 1988),
144502 at 35161.
Holford-Strevens
495
Professing reluctance to determine so debatable a question, he cites the Woman of

Smyrnas case as a precedent for evading a dilemma, but subtly converts it into a
failure to tell right from wrong:
Quod si me ad sententiam urges, respondeo quod in causa Smirnensi Ariopagitas
Gneio Dolobellae24 inuenio respondisse. Ad quem prouinciam Asiam proconsulari
imperio obtinentem mulier Smyrnensis adducta est, confitens se maritum et filium
datis clam uenenis occidisse, eo quod illi filium ex altero matrimonio, optimum et
innocentissimum iuuenem, exceptum insidiis nequiter occidissent, sibi licitum esse
asserens ex indulgentia legum et ius ignorare et suam et suorum et totius rei
publicae suae tam atrocem iniuriam uindicare. Ius extra causam erat cum de facto
constaret et de iure quaereretur. Cum ergo Dolobella rem in consilium deduxisset,
non fuit qui in causa, ut putabatur, ancipiti manifestum ueneficium et parricidium
auderet absoluere, uel uindictam quae in impios et parricidas processerat condemnare.
Rem itaque ad Areopagitas Atheniensium, tamquam ad iudices grauiores
exercitatioresque, reiecit. At illi, causa cognita, actores et ream mulierem centesimo
anno adesse iusserunt. Sic autem neque ueneficium, quod de lege non licuit,
absolutum est, neque nocens punita mulier, cui ex sententia multorum uenia poterat
indulgeri. Hoc ita fuisse nonus liber Memorabilium dictorum uel factorum Valerii
Maximi docet. Ceterum et Brutum et mulierem deliquisse consentiam facile, eo
quod excessit medicina modum nimiumque secuta est qua morbi duxere
manum,25 et licet magna fuerint crimina, praestantius fuerat eadem sine punientis
crimine uindicari.26
But if you press me to state my opinion, I give the same answer that I find
the Areopagites, in a case from Smyrna, gave Gnaeus Dolabella. When he
held Asia with a proconsuls command, a woman of Smyrna was brought
before him, confessing that she had killed her husband and son by poisons
secretly administered, because they had ambushed and wickedly killed her
son by her other marriage, an excellent and most blameless youth, claiming
that it was permitted her by the indulgence of the statutes both to be ignorant of the law and to avenge so heinous an affront to herself, her own, and
the 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. 1423.
26. John of Salisbury, Policraticus, 4. 11, ed. K. S. B. Keats-Rohan (Corpus Christianorum,
Continuatio Mediaevalis 118; Turnout: Brepols, 1993), 2689. Johns verbatim quotations
from Gellius are mediated through a florilegium of that writer known as ; see Janet Martin,
Uses of Tradition: Gellius, Petronius, and John of Salisbury, Viator 10 (1979), 5766 at 59
61 and, for the argument that it was made by William of Malmesbury, Rodney Thomson,
William of Malmesbury (Woodbridge: Boydell, 1987), 18595. The tale also appears in another
bearer of , a MS closely associated with William, Bodleian Library, MS Lat. class. D. 39,
fols. 155rbva, but with minor variants not repeated in John; William himself forbears to
include this story in his selection from in his Polyhistor, ed. Helen Testroet Ouellette
(Binghamton, NY: Center for Medieval & Early Renaissance Studies, 1982), 65, ll. 34.
27. Extra causam is a well-attested idiom denoting that which is extraneous to the case; here I
take the sense to be that the womans claim of a licence not to know the law precluded
argument 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
496
facts were not in dispute and the question was one of law. Therefore, when
Dolabella referred the matter to his council, there was no-one who in a case
considered double-edged durst either exonerate manifest poisoning and
murder, or condemn revenge that had taken its course against scoundrels
and murderers. He therefore submitted the matter to the Areopagites of the
Athenians, as to weightier and more experienced judges. But they, having
heard the case, ordered the prosecutors and the woman defendant to appear in a hundred years time. Thus neither was the charge of poisoning
dismissed, which was forbidden by statute, nor the guilty woman punished, who in many peoples opinion could be treated mercifully. That this
was so we are told by Valerius Maximus ninth book of Memorable Sayings
and Actions. Still, I shall readily agree that both Brutus and the woman did
wrong, since the remedy exceeded due measure, and the (surgeons) hand
followed too far where the diseases led, and although these were great
crimes, it would have been better for them to be avenged without a crime
on the part of the person punishing.
Doing his best for the party against whom he will eventually decide, John allows her
to plead both that as a woman she is not required to know the law (the only suggestion, in any of the writers to be studied, that her gender is relevant to the case) and that
she has acted in the public interest; he then prepares the reader for his resolution of
the doubt by undermining his sources certainties. The case is no longer doubtful, but
was only thought to be; that the woman merited mercy is now no more than a widespread 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 of
their sex, not to know the law in certain cases did not always extend even to fine
technicalities, let alone to matters of substance;29 the most remarkable indulgence, of
not knowing the prohibition against incest, was confined to unions forbidden only by
Roman law, not to those that violated the ius gentium common to the entire human
race (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 womans
other defence, that of the public interest in punishing heinous wrongdoing; the punishment of crime should not itself proceed by way of crime.
Nevertheless, John does not explicitly declare that she should have set the wheels
of law in motion; some four centuries later that point was taken by Franois Rabelais, a
man well informed in legal matters, when Epistemon in the first edition of Le Tiers
only a question of law remained (John Dickinson, The Statesmans Book [New York: Knopf,
1927], 52), or The matter of legal right was external to the case because there was agreement regarding the fact and there was question about the law (Cary J. Nederman, John of
Salisbury: 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 expressions
such 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 were
women 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.
Holford-Strevens
497
Livre (1546) and in subsequent editions Pantagruel illustrated the kind of case that
might benefit from the aleatory proceedings of Bridoye (Mr Justice Bridlegoose) by
balancing the wrongfulness of taking the law into ones own hands against the magnitude of the provocation:
Une femme, en Smyrne, de son premier mary eut un enfant, nomm Abec. Le
mary defunct, aprs certain temps elle se remaria, et de son second mary eut un
filz, nomm Effeg. Advint (comme vous savez que rare est laffection des peratres,
vitrices, novercles et meratres envers les enfans des defuncts premiers peres et
meres) que cestuy mary et son filz, occultement, en trahison, de guet pens,
tuerent Abec. La femme, entendent la trahison et meschancet, ne voulut le forfaict
rester impuny et les feist mourir tous deux, vengeante la mort de son filz premier.
Elle feut par la justice apprehende et mene davant Cn. Dolabella. En sa prsence
elle confessa le cas, sans rien dissimuler ; seulement alleguoit que, de droict et par
raison elle les avoit occis. Cestoit lestat du procs.
Il trouva laffaire tant ambigu quil ne savoit en quelle partie incliner. Le
crime de la femme estoit grand, laquelle avoit occis ses mary second et enfant. Mais
la cause du meurtre luy sembloit tant naturelle et comme fonde en droict des
peuples, veu quilz avoient tu son filz premier, eulx ensemble, en trahison, de guet
pens, non par luy oultragez ne injuriez, seulement par avarice de occuper le total
heritage, que pour la decision il envoya es Areopagites, en Athenes, entendre quel
seroit sur ce leur advis et jugement. Les Areopagites feirent response que cent ans
aprs personellement on leurs envoiast les parties contendentes, affin de respondre
certains interroguatoires qui nestoient on procs verbal contenuz. Cestoit dire
que tant grande leurs sembloit la perplexit et obscurit de la matiere quilz ne
savoient quen dire ne juger. Qui eust decid le cas au sort des dez, il neust err,
advint ce que pourroit. Si contre la femme, elle meritoit punition, veu quelle avoit
faict la vengence de soy, laquelle apartenoit Justice. Si pour la femme, elle sembloit
avoir 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 Second
Husband 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 this
Husband, with the help of his Son Edege, secretly, wittingly, willingly and
treacherously murthered Abece. The Woman came no sooner to get Information of the Fact, that it might not go unpunished, she caused kill them
both, to revenge the Death of her first Son. She was Apprehended and
carried before Cneius Dolabella, in whose Presence, she, without dissembling
any thing, confessed all that was laid to her Charge; yet alledged that she
had both Right and Reason on her side for the killing of them. Thus was the
state of the Question. He found the Business so dubious and intricate, that
he 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 her
Second Husband and her Son. On the other hand, the Cause of the Murther
31. Rabelais, Le Tiers Livre, ch. 44, ed. M. A. Screech: Franois Rabelais: Le Tiers Livre. dition
critique (Geneva: Droz, 1964), 2978.
498
seemed to be so natural, as to be grounded upon the Law of Nations, and

the rational Instinct of all the People of the World; seeing they two together
had feloniously and murtherously destroyed her first Son. Not that they
had been in any manner of way wronged, outraged or injured by him, but
out of an avaricious Intent to possess his Inheritance. In this doubtful Quandary and Uncertainty what to pitch upon, he sent to the Areopagites then
sitting at Athens, to learn and obtain their Advice and Judgment. That Judicious Senate very sagely perpending the Reasons of his Perplexity, sent him
word, to summon her personally to compear before him [sic], a precise
Hundred Years thereafter, to answer to some Interrogatories touching certain Points, which were not contained in the Verbal Defence:32 Which Resolution of theirs did import, that it was in their Opinion a so dificult and
inextricable 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, could
not have erred nor awarded amiss on which side soever he had past his
casting and condemnatory Sentence: If against the Woman, she deserved
Punishment for usurping Sovereign Authority, by taking that Vengeance at
her own hand, the inflicting whereof was only competent to the Supream
Power, to administer Justice in Criminal Cases: If for her, the just Resentment of a so atrocious Injury done unto her, in murthering her innocent
Son, did fully excuse and vindicate her of any Trespass or Offence about
that particular committed by her.33
Rabelais takes the bare facts (including the wrong praenomen) from Gellius, but elaborates them by inventing a motive for the original murder, and presenting it in the
manner of a speech for the defence (en trahison, de guet pens, non par luy oultragez ne
injuriez, seulement par avarice de occuper le total heritage); he suppresses the characteristically Roman institution of the governors consilium, but exports to Roman Asia and
Achaia the procedural law of contemporary France (affin de respondre certains
interroguatoires qui nestoient on procs verbal contenuz).34 Once again the merits are
evenly balanced; but whereas for the ancient authors either verdict would have been
wrong, for Rabelaiss speaker either would have been right.
It is in Ammianus spirit, warning against a hasty resort to the death penalty, that
Montaigne, that perpetual doubter, compares this case with that of Martin Guerre:
Je vy en mon enfance un procs, que Corras, conseiller de Toulouse, fist imprimer,
dun accident estrange : de deux hommes qui se presentoient lun pour lautre. Il
me souvient (et ne me souvient aussi dautre chose) quil me sembla avoir rendu
limposture de celuy quil jugea coulpable si merveilleuse et excedant de si loing
nostre 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 of
the 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 sense
here is Cotgraves second. a verball report (made by Judge, or partie) of all the parts, and
pleadings 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: Richard
Baldwin, 1693), 35860.
34. See the list of procedural documents in Tiers Livre, ch. 39 (p. 271 Screech).
Holford-Strevens
499
en larrest qui lavoit condamn estre pendu. Recevons quelque forme darrest qui
die : La court ny entend rien, plus librement et ingenuement que ne firent les
Areopagites, lesquels, se trouvans pressez dune cause quils ne pouvoient desveloper,
ordonnerent que les parties en viendroient 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 presented
themselves one for another. I remember (and I remember nothing else so
well) that me thought be proved his imposture, whom he condemned as
guiltie, so wondrous-strange and so far-exceeding both our knowledge and
his owne, who was judge, that I found much boldness in the sentence,
which had condemned him to be hanged. Let us receive some forme of
sentence that may say: The Court understands nothing of it, more freely
and ingenuously than did the Areopagites, who finding themselves urged
and entangled in a case they could not well cleare or determine, appointed
the parties to come againe and appeare before them a hundred yeares after.36
No such hesitation troubled the Dutch scholar Antonius Thysius (c.160365), himself a jurist and the son of a theologian, who in the edition of Gellius completed and
published after his death by Jacobus Oiselius (163186) commented sternly on his
description of the woman as meriting mercy:
Nequaquam. Potuit enim ad magistratum deferre crimen mariti & filii, ut juste
magistratu punirentur. Neque enim mulieris erat privatam vindictam sumere.37
Not at all. She could have reported her husbands and sons crime to the
magistrate, so that they could receive due punishment from the magistrate.
It was not the womans business to exact private vengeance.
Jacobus Gronovius (16451716), a quarrelsome man who never conceals his contempt
for Thysius and Oiselius annotations, retorted in his own edition forty years later:
Alia igitur Dolabell, & Ariopagitarum mens atque etiam Valerii Maximi justo
dolore 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, 19301), iii. 4934.
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), 11920.
37. Auli Gelli Noctes Atticae cum Selectis Novisque Commentariis et Accurat Recensione Antonii
ThysI, J.C. et Jacobi OiselI, J.C. (Leiden: Pieter Leffen, 1666), p. 635, col. b, n. 4; Oiselius
annotated books 1320. There is no such comment in Thysius variorum edition of Valerius
Maximus (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 Vivi, 1706), p. 562, col. a, n. 8. The Delphin editor of
1681, Jacques Proust SJ, does not venture an opinion.
500
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 murs.39
Other jurists, however, had accepted the values of Valerius and Gellius as right
and proper. Tommaso Grammatico (14731556), member of the Sacro Regio Consiglio
of Naples, records with approval the successful appeal of one Paolo and his brothers
from SantAntimo in Campagna, condemned to death by the highest criminal court,
the Gran Corte della Vicaria, for killing a vicious brute (the defence adduced his evil
habit vulnerandi, occidendi & iugulandi alios) who had murdered their cousin, wounded
Paolo, threatened to kill one of the brothers, and attempted to rape their sister (to the
dishonour of the whole family); a majority of the council commuted the sentence to a
lifetime in the galleys. The joint rapporteur (relatore) Antonio Barattuccio (14861561)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, qu virum & filium interfecit, dum formaliter dicit: eadem
quoque hsitatione Publii quoque Dolabell proconsulari imperio Asiam obtinentis,
animus fluctuatus est, materfamilias Mirnea [sic] virum & filium interemit, cum
ab his optim indolis iuuenem, quem ex priore uiro genuerat, occisum comperisset,
quam rem Dolabellam [sic] ad se delatam Athenas, & Areopagi cognitionem
delegauit, quia ipse neque liberare cdibus duabus contaminatam, neque punire
cum iusto dolore inpulsam sustinebat. Considerantur [sic] & mansuete populi
Romani magistratus, sed Areopagit quoque non minus sapienter, qui inspecta
causa, accusatorem & reum [sic] post centum annos ad se reuerti dixerunt, eodem
affectu moti, quo Dolabella, sed ille transferendo qustionem, ii differendo damnandi
atque absoluendi inexplicabilem cantationem [sic] mutabant. Et ego dum in fonte
librum Valerii inspexissem, non minus ad hoc facere prcedens capitulum visum
fuit, dum commemorat mulierem, qu matrem occiderat hoc modo: Atque vt nos
quoque referamus per indiscrimen [sic] capitis adducti, neque damnati, neque absoluti
sunt, Marcum Popilium Lnatem prtorem quaedam qu matrem percussam fuste
interemerat, causam dixit, de qua neutram in partem lat sententi sunt, quia
abunde constabat eandem veneno necatorum liberorum dolore commotam, quos
auia fili impensa [sic] sustulerat, parricidium vltam parricidio esse. quorum alterum
vltione, 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), 6375 at
71.
40. On whom see Dizionario biografico degli italiani, vi (Rome: Istituto dellEnciclopedia Italiana,
1964), 910.
41. Book 8 begins with a section on notable trials, divided into a (one-sentence) praefatio, 13
absoluti, 8 damnati, and 2 ambusti (scorched), namely the two cases considered in this
article: 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 eodem
sacro Consilio relatis, summa cura, singulari iudicioque collect, rev. edn. (Frankfurt am Main,
1600), 17 (decisio 5, num. 224).
Holford-Strevens
501
In addition the Magnificent Barattuccio cited Valerius Maximus, book 8,

chapter 24, telling of the woman who killed her husband and son, saying in
terms: [as above].43 And when I consulted Valerius book in the original, the
previous chapter seemed no less apposite to this matter, in mentioning the
woman who had killed her mother in this manner: [as above].
Whereas the Matricide and the Woman of Smyrna had escaped a verdict, Paolo and
his 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 of
Andr Tiraqueau (14801558), conseiller to the Parlements successively of Bordeaux
and 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, and
Alexander of Hales45 for the exoneration of persons who acted instante dolore, he
continues by citing the two cases from Valerius, in the second also using Gellius:
Nec abs re fuerit duo exempla historica Valerio Maxi. lib. reru memorabiliu 8. c. 1
memori prodita hoc potissimum loco recensere. Primm, de muliere quadam, qu
matrem fuste percussam interemerat, dolore commota necatorum ueneno liberorum,
quos auia fili infensa sustulerat, emque qud parricidium parricidio ulta esset,
M. Pompilius prtor neque damnauit, neque absoluit. Secundum, de altera muliere,
qu uirum, & filium eodem tempore uenenis clam datis irata interfecerat: quoniam
illi alterum eius filium ex uiro priore genitum insidiis occidissent. Quam rem
Dolabella ad se delatam, Athenas ad Areopagi cognitionem reiecit, quia ipse neque
liberare cdibus duabus contaminatam, neque punire eam iusto dolore inpulsam
sustinuit. Areopagit autem, inspecta causa, & accusatorem & reum [sic] post
centum annos ad se uenire iusserunt, eodem affectu moti, quo Dolabella. Sic neque
absolutum mulieris ueneficium est, quod per leges non licuit: neque nocens damnata
punitq;, qu 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 examples 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 prsident of the centumviral court of Myrelingues who
interrogates Bridoye on his methods; see Screechs 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 shall
be 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 Alexanders continuator (William of Melitona?),
Summa Theologica, pt. 4, qu. 86, mem. 3, art. 1, fol. 343rb in Anton Kobergers Nuremberg
edition of 1516: Multa enim perpetrata instante dolore remanent impunita que si cessante dolore
fierent essent punienda (For many crimes committed under pressure of grief are left unpunished that if they took place in the absence of grief would need to be punished). For the
derivation 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, Statutormq; temperandis, aut etiam
remittendis, & id quibus qutq; ex causis (s.l., 1559), 1011 (1. 17).
502
Matters. The first concerns a woman who had beaten her mother to death
with a cudgel, stirred by grief for her poisoned children, whom their grandmother had done away with out of hatred for her daughter, and whom, on
the grounds that she had avenged murder with murder, Marcus Pompilius
[sic] the praetor neither condemned nor acquitted. The second is about
another woman, who had killed her husband and son at the same time by
poisons secretly administered because they had treacherously killed her
other 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 part
he could bear neither to release a woman stained by two murders nor to
punish her when she was motivated by a just grief. But the Areopagites,
after looking into the case, ordered both the prosecutor and the defendant
to return before them in a hundred years time, moved by the same sentiments as Dolabella. Thus neither was the charge of poisoning dismissed,
which was forbidden by statute, nor the guilty woman punished, who merited mercy. Gellius too retold the story in Attic Nights 12. 7.
Both stories are thus taken at face value as precedents from classical antiquity
telling in favour of that leniency which Tiraqueau is at pains to advocate; they reappear in Pierre Grgoire of Toulouse (15401617) during a discussion of exceptions to
the rule that the killing of kin constitutes the crime of parricidium. Having considered
cases, such as that of L. Brutus, in which a father kills his son for treason, ending with
a reference to Valerius chapter de seueritate patrum in liberos (5. 8), he turns to
other excusations:
Aliquando causa aliqua alia dans occasionem parricidij, nec pnam sustulit, sed
dissimulauit. Apud M. Popilium Lenatem, prtorem, qudam, qud matrem fuste
percussam interemerat, causam dixit, de qua neutram in partem sententi lat
sunt: quia abund constabat, eandem veneno necatorum liberorum dolore commotam,
quos auia fili infensa sustulerat, parricidium vltam esse parricidio: quorum alterum
vltione dignum, alterum absolutione non dignum iudicatum est. Sic cum materfamilias Smyrn virum & filium interfecisset, cm ille huius optimum iuuenem ex
alio viro genitum occidisset, delata fuisset ad proconsulem Asi Dolabellam, hsitans
Dolabella quid inter vltionem & scelus statui oporteret, re delatam ad se reiecit
Athenas ad Areopagi cognitionem: sed Areopagit quoque non minus sapieter,
qum Dolabella mansuet inspecta causa, & accusatorem & reum in centum annos
vadati sunt: differendo, damnandi atque absoluendi inexplicabilem cunctationem
tegentes.47
Sometimes murder arising from some other reason has not been punished,
but overlooked.48 A woman pleaded her case [as above]. Similarly, when a
married woman at Smyrna had killed her husband and son, because the
former 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. 267); 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 penalty, but has overlooked it.
Holford-Strevens
503
had been brought before Dolabella, proconsul of Asia, Dolabella, in doubt

what finding should be made as between vengeance and crime, referred the
affair brought before him to Athens for the Areopagus to consider; but the
Areopagites in their turn, showing no less wisdom than Dolabella mercy,
having examined the case, bound over both prosecutor and defendant (to
appear) in a hundred years time, covering up by postponement their insoluble dilemma between conviction and acquittal.
He goes on to consider precedents from mythology: Alcmaeon, who killed his mother
Eriphyle at the behest of his father Amphiaraus, who considered she had betrayed
him; 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 had
raped her while drunk.49 It is evident that the defence of outraged feelings is available
to men as well as women, albeit Grgoire shifts the emphasis from defence of the
children to deterrence of the parents.50
In the Woman of Smyrnas case, Grgoire ascribes the crime avenged to the husband alone. Neither Valerius nor the current supplements in Ammianus (whom he
does not cite but has clearly read) gave him any support; early editions of Gellius, in
the phrase idem illi maritus et filius, read ille for illi, qualifying maritus alone, but since
they retain et filius and the plural occidissent the overall sense is not affected. Eliminating the son as a murderer, but not as a victim, might be thought to impair the womans
case, but nothing to that effect is said; nevertheless, this error will recur in the subsequent reception of the story.
The Pavian-born jurist Iacopo Menocchi (15321607), counsellor to Philip II and
senator of Milan, composed a massive study of judicial discretion, first published by
the brothers Somasco at Venice in 1569 but subsequently expanded and revised. In
1599 the treatment of parricidium, previously very brief, was expanded into a fulllength discussion of those homicides which do not fall under that head; among them is
killing motivated by iustus dolor, of which he lists four instances: (1) when the father
kills the daughter taken in adultery; (2) when the father or mother has killed the son
for an offence for which he might have been disinherited; or (3) when the mother kills
the 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 Smirna
virum & filium interemit, cum ab ijs optim indolis iuuenem, que ex priore viro
enixa fuerat, occisum comperisset, quam ream [sic] Dolobella ad se delatam Athenas
ad Areopagi cognitionem relegauit: quia ipse neque liberare cdibus duabus
contaminatam, neque punire iusto dolore pulsam sustinebat. sed Areopagit quoque
non minus sapienter, qum Dolobella, mansuet, inspecta causa, & accusatorem, &
49. See respectively Diodorus Siculus 4. 65. 67, Justin 1. 2. 10, Pseudo-Plutarch, Parallela minora
19; I have corrected Grgoires spellings.
50. Quorum tamen facta delinquendi ansam dare non debent, sed parentibus exemplo esse debent, ne ea
turpia audere velint, ob quae parricidium excusari aliquo modo potest (But their acts ought not
to provide a handle for wrongdoing, but ought to be an example for parents not to choose
to venture on those disgraceful actions that may furnish some sort of excuse for parrcidium).
504
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 Grgoire mentions appositely to our
purpose, in Syntagma, book 36, chapter 24, numbered section 27, taken from
Valerius Maximus, book 8 ch. 1, and Aulus Gellius, Attic Nights, book 12,
chapter 7, and it is this: [as Valerius above]
Despite citing Grgoire, Menocchi has gone back to Valerius, and correctly implicated
the son in the murder. He does not suggest that this kind of dolor, like the third, is
confined 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 husbands murder. He
first argues on the facts that her degree of involvement does not justify the statutory
penalty (poena ordinaria), namely death, but only a lesser, discretionary punishment
(poena extraordinaria), then maintains that even if she had caused or ordered her
husbands murder she could still not be condemned to the poena ordinaria because of
her iustus dolor; having noted that at D. 48. 9. 5 the father who killed his son for
carrying on an affair with his stepmother was merely banished by Hadrian to an
island, because as the gloss says excusatur propter iustum dolorem,52 he declares:
Hoc premisso dico, qud mulier ista habuit multipliciter iustum dolorem ctra
maritum, ob quem, si deuenisset ad hunc excessum, mereretur leuius puniri, nisi
potius vellemus eam dimittere cum prcepto ad comparedum post centum annos,
vt in notabili casu fecerunt Areopagit Athenienses, cum hinc agnoscerent istum
[sic]53 dolorem in ea, qu occiderat viru, & filium ex eo, quia ipsi interfecerant
vnum filium ex altero matrimonio ipsius mulieris iuuenem optim indolis; inde
51. De arbitrariis iudicum quaestionibus et causis libri duo (Cologne: widow and heirs of Johann
Gymnich, 1599), 514b (book 2, case 356, num. 60).
52. Ciricaco neglects to observe that in Hadrians eyes the father, in killing his son on a hunting
expedition, 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 latronem
instead of ut latro (cf. Thesaurus linguae Latinae, vii/2. 700, ll. 522), Accursius had commented: Videbatur excusari pater propter adulterium, cum filius erat uilis, supra de adul. l. marito
sed non in opus Veneris. Item secundo quia patri licet occidere filium, ut supra de lib. et po. l. in
suis, sed illud quando ut pater, sed hic ut adulterum et extraneum latronem, relegatur ergo: quia
accusare non occidere debuit ut supra tit. i. [= priore] l. inauditum. a Pompeia excusatur propter
iustum dolorem, ut supra de adul. si adulterium Imperatores. Item quia meruit filius perdere filii
priuilegium cum deliquit non ut filius ut in auth. ut cum de app. cogn. causas. Item quod ut
latronem non ut filium occidit ut subiicit (The father appeared to be excused because of the
adultery, since his son was worthless, see above, D. 48. 5. 25 (24), though not as to the
sexual 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 a
bandit outside the family. He is therefore relegated, since he ought to have prosecuted, not
killed, as above, in the previous title, D. 48. 8. 2. He is excused from the Lex Pompeia on
account of his just grief, as above, D. 48. 5. 39 (38). 8. Also, because the son deserved to lose
the privilege of a son when he committed a crime not in a sons character, as in Authenticum
111 [= Novels 115, c. 3 post init., num. 6]. Also because he [the father] killed him as a bandit
not as a son, as he [Hadrian] added), ed. cit., fol. 232r.
53. Conceivably referring back to iustum dolorem above, but more probably a misprint for
iustum.
Holford-Strevens
505
ver suspicerent graue delictum commissum, iusserunt accusatorem, & ream reuerti
post centum annos pro sententia, vt post Valer. Maximum, & Aulu Gellium, refert
Menoch. de arbitr. cas. 356. n. 60. in vlt. impressione.54
Having first said this, I declare that this woman had a just grievance on
many counts against her husband, because of which, if she had come to this
excess, she would deserve to be punished more leniently, unless we would
rather let her go with an order to appear after a hundred years, as the
Athenian Areopagites did in a famous case, when they on the one hand
recognized that grief in the woman who had slain her husband and her son
by him because they had killed a son of the womans by another marriage,
a youth of excellent character, on the other had regard to the serious crime
that had been committed; they ordered prosecutor and defendant to return
after a hundred years for the verdict, as Menocchi relates after Valerius
Maximus and Aulus Gellius, On Discretionary Questions, case 356 section 60
in 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 outside
the bed, in the ruelle of the bedroom on a plank or beam;55 consistently refused to
pay the marital debt (which default, as doctors had taught lawyers, was a threat to
nubile womens health), and threatened her now with poison, now with the Soccorso
or 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 were
constituted by Donna Paolas daily and hourly abuse, for each action constituted an
immediate ground of iustus dolor;56 Ciriaco cites, again from Menocchi, a Milanese case
of a son persistently beaten and even starved by his father, distorting it into a precedent 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. 389).
55. . . . extra lectum in calle cubilis super vna tabula, vel assere (p. 476b).
56. Ibid.: sed in actu successiuo, prout quoitidie non habere debitum marito, & ob id quotidie subesse
cruciatui isti appetitus generationis, et quotidie timere mortem comminatam, et singulis horis dicitur
iustus dolor, et sic respectu ultimi doloris semper dicitur fieri inctinenti, quia in actibus successiuis
res semper dicitur integra, & non plene perfecta, respectu actus instantis, & futurorum . . . (but
in successive action, as every day not to be paid the marital debt by her husband, and
therefore to be every day subject to that torment of the appetite of generation, and every
day to fear the death with which she was threatened, and every hour, [the provocation] is
called just grief, and thus in respect of the final grievance is always said to take place
straight away, since in successive actions the case is always said to be fresh, and not fully
completed, 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 Menocchis
participation. Ruggero Beltrami (Ruglerius Baltramus), who had arranged for his father
to be killed, was sentenced to serve in the galleys for life; mitigation was due, not to the
grounds alleged by Ciriaco, but to the defendants youth (he was only 16) and the pressure
put upon him by his mother and by his fathers enemies.
58. One might object that reaction to a last-straw provocation after previous patience is con-
506
fine and a spell in a nunnery (Condemnata fuit in penam extraordinariam pecuniariam, et

ad standum in Monasterio ad certum tempus).
The two cases next travelled north to the very country in which Thysius was to
express his disapproval. When Antonius Matthaeus II (160154), professor at Utrecht,
in his commentary on Roman criminal law as preserved in books 47 and 48 of the
Digest, seeks to qualify the current doctrine that the circumstances in which a father
may kill his son without incurring the penalty for parricidium encompass such iustus
dolor as would have justified disinherison, he cites the case of D. 48. 9. 5 more fully
than Ciriaco had done, observing that although the fathers grief excused him the
supreme penalty (Iustissimus dolor fecit, ut ultimum supplicium remitteretur), his crime
led to his deportation none the less. Without a transition, he then quotes word for
word the two stories from Valerius, with the comment that these women, having
defiled themselves with parricide under the power of a most just grief, were neither
acquitted or condemned (H igitur, quoniam justissimo dolore commote parricidio se
contaminaverant, neque absolut, neque damnat sunt), whereas Orestes in the legend,
having avenged his fathers murder on his adulterous mother, had been acquitted, as
Cicero puts it, when the human votes were divided, not merely by a divine vote, but
by that of a most wise goddess (variatis hominum sententiis, non solum divina, sed etiam
De sapientissim sententia).59 Only after turning to children who kill parents does he
notice that his ancient examples are relevant to that and not the converse:
Accedit quod cum amor se ipso incipiat, semperque genu [misprinted genus]
tibia propius sit,60 non videatur filius salv conscientia salutem propriam postponere
saluti parentis. Prjudicio denique non hominum solum, sed & Deorum hc
sententia firmata videtur. Quippe, ut modo commemoravimus, filiam, quae justissimo
dolore impulsa necaverat fuste matrem, Popilius prtor damnare non sustinuit.
fused with delayed and deliberate reaction, such as Donna Paola (as alleged) and Beltrami
manifested after repeated torments and the Woman of Smyrna after a single offence, if as in
Gellius she took the time to prepare and administer poison (the Matricide may have reacted
on 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 battered
wives 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),
5856; 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 wijsgeerig
hoofd en een menschelijk hart), also admits Verginius right to kill his daughter, and defends
the mother of 2 Kings 6: 269 who killed her son for food during a siege, but draws the line
at Horatius, qui rectius Tullo rege damnatus, qum ad populum provocato judicio absolutus est.
Non enim magnum scelus, atque ade nec justissimus dolor fuit, lugeri sponsa hostem sponsum.
Nisi fortasse etiam Davidem Israelitarum regem magnum scelus admisisse putamus, cum parta
Joabo victoria, luxit tamen, & impatienter quidem, mortem filii perduellis (who was more rightly
condemned by King Tullus than acquitted on appeal to the people. For it was no great
crime, and so no very just grievance either, that an enemy fianc should be mourned by his
fiance. Unless perchance we consider that David king of the Israelites also committed a
great 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. 901, Opera Omnia, II. i, ed. M.L. van Poll-van de Lisdonk, M.
Mann Phillip, and Chr. Robinson (Amsterdam: North-Holland, 1993), 1967.
Holford-Strevens
507
Orestes autem parricidium parricidio ultus, etiam De sapientissim voce liberatus

est.61
Furthermore, since love begins with oneself, and the knee is always closer
than the shin, it would not seem that a son can with a sound conscience put
his own safety second to a parents. Indeed, this opinion seems to be confirmed 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 bear
to convict the daughter who under the impulse of a most just grief had
cudgelled her mother to death, and Orestes, having avenged murder with
murder, was actually acquitted by the vote of a most wise goddess.
Gone is the passion of vengeance, blasted by Matthaeus cold northern air; instead, the precedents are justified by self-preservation, of which even as he tells them
they bear no trace. No doubt the Matricide might reasonably apprehend danger from
her mother, but that was not the basis of her defence; had Orestes been concerned only
to 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 parricide) that he implausibly denies his client committed, in one of Euripides best-known
plays Clytemnestras father Tyndareus criticized Orestes for killing his mother instead
of prosecuting her (Orestes 5002)62thus raising the very question that in the Woman
of Smyrnas case (to which Matthaeus does not return) had troubled John of Salisbury
and would trouble Thysius.
So far, the point of Valerius stories has been that in cases of iustus dolor courts
had avoided convicting; for Giovanni Domenico Rinaldi or Raynaldus (1628c.1713), a
prominent jurist and a canon of St Peters, it was that they had avoided acquitting. To
be sure sons who killed their fathers might sometimes not be liable to the penalty for
parricide;
Verum quia res est mali exempli evulgare, quod filii valent absque grauissima, &
seuerissima pna percutere, & Patrem occidere crederem63 Reipublic expedire,
quod eueniente casu causa relinquatur indecisa, vt docuerunt nos Judices Areopagit,
qui ad Consulationem [sic] Dolabell distulerunt ad centum annos condemnationem
eius, qu virum, & filium interemerat ex quo iuuenem, quem ex priore viro genuerat
occisum ab illis compererat, tacit indicantes non expedire absoluere, & iniustum
esse condemnare delinquentem, vt refert Gram. dec. 5. num. 21. & ex Valerio
Maximo lib. 8. cap. primo Anton. Matthus loco spe citato cap. 2. num. 10.64
But since it sets a bad example to make it known that sons may strike and
kill their father without the heaviest and most serious penalty, I am inclined
to 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. 489).
508
be left undecided, as the Judges of the Areopagus taught us, who on being
consulted by Dolabella put off for a hundred years the condemnation of the
woman who had killed her husband and son because she had learnt that
they had killed the youth she had borne by her previous husband, silently
indicating that it was inexpedient to acquit, and unjust to condemn, the
criminal, 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, defended
Guido Franceschini and his four accomplices for the murder of his wife Francesca
Pompilia Comparini and her parents, or putative parents, Pietro Comparini and Violante
Peruzzi. The essential facts of the caserestored to public attention by Robert Browning in The Ring and the Book (18689)are as follows.65 Count Guido, an impoverished
nobleman from Arezzo, had attempted to mend the family fortunes by marrying the
daughter 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; Pietro
and Violante attempted unsuccessfully to break the marriage by claiming (probably
but not provably with truth) that Francesca Pompilia was not their daughter. They
returned home, leaving Guido to vent his outrage upon his wife, who, increasingly
unhappy and ill used, fled for Rome in the company of Canon Giuseppe Caponsacchi,
having drugged and robbed her husband; however, he recovered, gave chase, and
caught the pair sharing a bedroom at an inn. He drew his sword, but unnerved by
their resistance had recourse to law. For complicity in Francesca Pompilias flight, for
abduction, and for carnal knowledge of her, the canon was relegated for three years to
Civitavecchia; she was sent pending trial to the Conservatorio di Santa Croce della
Penitenza at the Scalette in the Via della Lungara, but on proving pregnant was released into house arrest with her parents. There she gave birth to a son, Gaetano
Franceschini, who was promptly put out to nurse; Guido, already smarting under the
affront to his honour, which he had signally failed to avenge, was sufficiently infuriated by the news to hire four ruffians, with whom he rode from Arezzo and burst into
the Comparini home. Pietro and Violante were killed; Francesca Pompilia lived long
enough to make a saintly speech before a priest,66 denying all misconduct and forgiv65. Brownings Old Yellow Book, now held in Balliol College Library, and published in
facsimile with an English translation by Charles W. Hodell, The Old Yellow Book (Washington, 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.
71378; see Beatrice Corrigan, New Documents on Brownings Roman Murder Case, Studies
in Philology 49 (1952), 52033; ead., Curious Annals: New Documents Relating to Brownings
Roman Murder Story (Toronto: University of Toronto Press, 1956); ead., Brownings Roman
Murder Story, English Miscellany 11 (1960), 333400. In addition, two manuscript narratives
circulated in various recensions (Corrigan, Curious Annals, pp. xviixix).
66. Which, even had she been the ignorant and illiterate girl she pretended, splendide mendax, to
be, she could easily have done out of the legends of virgin martyrs and the like on which
she must have been brought up. The new evidence, discussed at length by Corrigan, Curious Annals, pp. xixxlv, amply justifies the scepticism of John Marshall Gest, The Old Yellow
Book, Source of Brownings The Ring and the Book: A New Translation with Explanatory Notes and
Critical Chapters upon the Poem and its Sources, 2nd edn. (Philadelphia: University of Pennsylvania Press, 1927), 60019; Anna Foa, Dizionario biografico degli italiani, xxvii (1982), 67882,
s.n. Comparini, Francesca Pompilia, clearly disbelieves in her innocence, but thinks all
the better of her for resisting and dying unsubdued.
Holford-Strevens
509
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 and
Donna Paolas iustus dolor, though defending a brutal husband he mentions only the
refusal of intercourse, the reverse of Guidos fault. He also found the Woman of
Smyrna, whose case he pursues back to Valerius; yet his list of authorities omits the
one writer whose error, ascribing the original crime to the husband alone, had permitted
him to twist the case anew. It followed from Grgoires account that the son of the
second marriage was an innocent victim, yet his murder was still justified by iustus
dolor; therefore, even if Pietro and Violante had been entirely free from the blame
Arcangeli has directed against them for bringing the marriage about on false pretences, Guido ought still not to be punished for their slaughter:
Et non semel in contingentia facti euaserunt Impunes qui iusto dolore moti
apposuerunt manus etiam in Innocentes; Mulier enim qudam Smirnea Virum, &
Filium ex eo conceptum interfecerat ex quo Vir perdiderat filium suum primi
matrimonij, accusata deinde apud Dolabellam Proconsulem, neque duabus cdibus
contaminatam liberare, neque iusto dolore impulsam condemnare voluit, sed remisit
ad Areopagum Sapientissimorum Iudicum Ctum, vbi, cognito de Causa, responsum
fuit, vt ipsa, & Accusator post centum Annos redirent, & sic duplici Parricidio
Rea, qumuis etiam Innocentem occidisset, vndequaque euasit Impunis, vt refert
Valer. Max. Dictor. factor. memorab. lib. 8. cap. 1. de Public. Iudic. vers.
Eadem hsitatione, Tiraquell. de Poen. temperan. d. Caus. 1. nu. 17. circa
med. 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 punishment
who, moved by a just grief, have laid hands even on the innocent. For a
woman of Smyrna had killed her husband and her son by him because the
husband had killed her son by her first marriage; accused then before the
proconsul Dolabella, he refused either to release a woman stained by two
murders or to condemn her when she was motivated by a just grief, but
referred her to the Areopagus, an assembly of most wise judges, where,
after the case had been heard the response was given that she and her
accuser 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 5169, who demonstrates that Browning
failed to understand the ways of lawyers and at pp. 62030 fails no less lamentably to
understand the ways of poets.
68. The Old Yellow Book, ed. Hodell, p. xxii; the speaker is H[yacinthus] de Arcangelis Pauperum
Procur[ator]. Donna Paola (unnamed) follows immediately (cf. Browning, The Ring and the
Book, 8. 95062); 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.
510
admired by connoisseurs of learning and ingenuity; given indeed that even if Francesca
Pompilia had committed the adultery she so resolutely denied Count Guidos vengeance 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 nor
was the Pope swayed by Guidos plea of having taken minor orders, his gentle birth,
or the finding against the fugitives in the Ruota of Florence into pardoning so gross an
act of violence.
Nevertheless, the arguments for the Count and his accomplices would come back
to life in book VIII of The Ring and the Book, which portrays that gloriously self-satisfied
advocate, doting father, and exquisite gourmet Dominus Hyacinthus de Archangelis
preparing his submission while thinking about dinner for rich relations and his sons
precocity in Latin; here the Woman of Smyrna makes her final gala appearance:
But even,prove the pair not culpable,
Free as unborn babe from connivance at,
Participation in, their daughters fault:
Ours the mistake. Is that a rare event?
Non semel, it is anything but rare,
In contingentia facti, that by chance,
Impunes evaserunt, go scot-free,
Qui, such well-meaning people as ourselves,
Justo dolore moti, who aggrieved
With cause, apposuerunt manus, lay
Rough hands, in innocentes, on wrong heads.
Cite we an illustrative case in point:
Mulier Smirnea qudam, good my lords,
A gentlewoman lived in Smyrna once,
Virum et filium ex eo conceptum, who
Both husband and her son begot by him,
Killed, interfecerat, ex quo, because,
Vir filium suum perdiderat, her spouse
Had been beforehand with her, killed her son,
Matrimonii primi, of a previous bed.
Deinde accusata, then accused,
Apud Dolabellam, before him that sat
Proconsul, nec duabus cdibus
Contaminatam liberare, nor
To liberate a woman doubly-dyed
With murder, voluit, made he up his mind,
Nec condemnare, nor to doom to death,
Justo dolore impulsam, one impelled
By just grief; sed remisit, but sent her up
Ad Areopagum, to the Hill of Mars,
Sapientissimorum judicum
902
905
910
915
920
925
930
71. Even granted her guilt, however, the law, save perhaps in the matter of revenge ex intervallo,
was against him (Gest 61014).
Holford-Strevens
511
Ctum, to that assembly of the sage

Paralleled only by my judges here;
Ubi, cognito de causa, where, the cause
Well weighed, responsum est, they gave reply,
Ut ipsa et accusator, that both sides
O the suit, redirent, should come back again,
Post centum annos, after a hundred years,
For judgment; et sic, by which sage decree,
Duplici parricidio rea, one
Convicted of a double parricide,
Quamvis etiam innocentem, though in truth
Out of the pair, one innocent at least
She, occidisset, plainly had put to death,
Undequaque, yet she altogether scaped,
Evasit impunis. See the case at length
In Valerius, fittingly styled Maximus,72
That eighth book of his Memorable Facts.73
935
940
945
*
Valerius Maximus recounts two stories of judicial evasion, the Matricide and the Woman
of 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 of
rhetoric, there is no sign that he was successful; if to provide exempla to adduce in
argument, only the Woman of Smyrna was so used in antiquity, and then as retold by
Aulus Gellius. The Matricides tale is told so baldly that not even the legal procedures
are explained, let alone the ground for the quarrel between the defendant and her
mother; its only function, until the Renaissance lawyers rediscovered it, was to suggest
a few details for Gellius retelling of the companion story, which even in Valerius has
more colour.
On the other hand, the motives that Valerius gives for both evasions, that the
crimes avenged by the respective defendants deserved to be punished, but those committed by them could not be forgiven by formal acquittal, set the tone for future
authors. 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 deserved none; Ammianus, himself no enemy of stern justice and ferocious punishments,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 speak
of Valre 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), 3413.
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.
234); cf. John Matthews, The Roman Empire of Ammianus (London, 1989), 374. Indeed, for all
his condemnation of acerbitas and like vices, he sets more store by severitas than by clementia
or lenitas; see Axel Brandt, Moralische Werte in den Res gestae des Ammianus Marcellinus
(Hypomnemata, 122; Gttingen: Vandenhoeck & Ruprecht, 1999), 17493. Timothy D. Barnes,
Ammianus Marcellinus and the Representation of Historical Reality (Cornell Studies in Classical
512
which brought down divine vengeance on him.76 Even should we accept the commonplace that as Roman private law, during the course of the Empire, was increasing in
humanity, criminal law was increasing in savagery,77 nevertheless, even in cultures
that favour the severe treatment of offenders, there are always individuals whose
cases arouse sympathy. The Woman of Smyrna becomes their symbol.
This is possible, however, only if the two wrongs are allowed to make, if not a
right, then a good substitute for one. That causes difficulty to John of Salisbury, who is
attempting to expound an ideal morality as well as to find arguments the most likely
to prevail in the real world. In book 4, chapter 11 of Policraticus, Quae sit alia merces
principum (What other reward of princes there is, sc. besides the felicity promised
them 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 preserving
the 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 their
sons; contrast Brutus, who had his treasonable sons killed. At this point John is torn
between horror at the parricidium and applause for Brutus public spirit; the case, he
says, had been argued both ways. Indeed it had, for whereas in Livy Brutus oversees
the execution in the line of official duty,78 in Florus he performs it himself in midassembly.79 This is too much for John, who substitutes a mere order,80 but takes from
Florus both the designation of the act as parricidium and the comment that Brutus had
adopted the people in lieu of his children. John at first seeks to evade judgment, citing
the Woman of Smyrnas case as an exemplum for such evasion; but in telling it he so
adapts it as to prepare for his decision against both her and Brutus, which is plainly
influenced by St Augustines unambiguously hostile account in De ciuitate Dei 3. 16.81
John indeed goes further in converting Vergils comment on Brutus love of country
and 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 unhappiness, added), John has at infortunium parricidii sic uersu sequenti excusat ut inanis
gloriae arguat uanitatem (but in the following verse excuses the misfortune of murder
in such a way as to accuse the vanity of empty glory). However, he continues, there is
76.
77.
78.
79.
80.
81.
82.
Philology, 56; Ithaca and London, 1988), 1012 even finds a sadistic quality in his writing
(cf. Brandts review of Barnes, above in this volume of IJCT, 7 [2000/2001], 442).
Ammianus 29. 2. 30.
But see Jill Harries, Law and Empire in Late Antiquity (Cambridge: Cambridge University
Press, 1999), 13552.
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 the
father the duty of exacting punishment from his children, and the very man who were he
but watching ought to have been sent away, Fortune appointed to be the agent of execution).
Florus 1. 3. 5: contione media uirgis cecidit securique percussit (in the midst of a public gathering thrashed them with rods and beheaded them with an axe).
John of Salisbury, ed. cit. (n. 26), 268: in media contione uirgis caesos tandem securi percuti
iussit (in the midst of a public gathering ordered them to be thrashed with rods and
finally beheaded with an axe).
See Sabine MacCormack, The Shadows of Poetry: Vergil in the Mind of Augustine (Berkeley, Los
Angeles, and London: University of California Press, 1998), 107 with n. 61, 1967.
Vergil, Aeneid 6.823: uincet amor patriae laudumque immensa cupido (love of country will
prevail, and unbounded desire for being praised).
Holford-Strevens
513
no need to worry lest anyone should follow Brutus example, since rulers indulge their
childrens vices at the expense of the common weal; if the good Christian in John finds
against Brutus in order to condemn the punishing of crime by crime, the good writer
in John finds against him in order to make an ironic contrast between an unlikely and
an all too likely transgression rather than a censorious contrast between unattractive
virtue and all too tempting vice. In this the Woman of Smyrna plays her part in
helping John off the fence.
If John wrote soon after the revival of Roman law, Rabelais wrote when the
Glossators and Postglossators had overlaid it with four centuries worth of dry exposition in crabbed Latin; similar exposition had been applied to canon law, often professed by the same masters. No less than in the Schoolmens logic and theology, both
matter and manner revolted the practitioners of the New Learning; and in any age the
workings of the legal system invite satire. Rabelaiss response is Bridoye, who both
promotes 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 with
accurate references to genuine texts applied as legal texts commonly were and are for
purposes their authors never dreamt of. Pantagruel pleads in mitigation that the one
questionable judgment under appeal should be outweighed by the many just verdicts
passed in Bridoyes court for over forty years; he and his companions then debate the
matter amongst themselves, concluding in favour of dice against legal argument. The
Woman of Smyrna is adduced by a sceptical speaker willing to allow that dice might
be appropriate in some cases but surprised that Bridoye could use them successfully
for so long; in that context Gellius account must be transvalued to make acquittal and
conviction equally just. The more serious sceptic Montaigne prefers to shrink from
both.
The New Learning, for its part, had not left the lawyers unaffected. To be sure
they did not discard their medieval predecessors (though as time went by they naturally quoted them less often than more recent writers), let alone permit the more
zealous humanists to rewrite the Digest by expelling the supposed interpolations of
Tribonian,83 but they admitted arguments and precedents from classical and other
non-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 that
could be easily accommodated within a longer argument. We have seen that Antonio
Barattuccio, defending men who, if their factual assertions stood up, had defended
their lives and their honour against a bloodthirsty brute, adduced the Woman of
Smyrna out of Valerius not Gellius; indeed, although some juristic writers cite or even
copy words from Gellius, and Pierre Grgoire draws on Ammianus too, Valerius
account was the most useful, since it referred to that iustus dolor which, on the highest
authority, it was difficult to moderate.84
83. See Tony Honor, Tribonian (London: Duckworth, 1978), 24751. The enterprise was resumed, when it could no longer upset the work of the courts, in the late nineteenth and
early twentieth centuries, to be followed by a reaction that rehabilitated many of the disputed passages and assigned others to interpolators anterior to Tribonian. See H. F. Jolowicz
and Barry Nicholas, Historical Introduction to the Study of Roman Law, 3rd edn. (Cambridge:
Cambridge University Press, 1972), 4869.
84. D. 48. 5. 39 (38). 8, cited above. In his commentary on part 2 of the Digestum Novum Bartolus
de Saxoferrato had commended the lex Imperatores to the students memory: Tene menti
hunc casum quia bonus est (Bear this case in mind, for it is good), edn. Venice: Torresano,
1489, sig. qQ 2r.
514
Tomasso Grammatico, looking up the text that Barattuccio had cited, came across
the Matricide, at last rescued from oblivion; though never as popular as her Smyrnaean
sister, she might now be suffered as her companion. It no longer mattered that the
manner of the praetors evasion was not stated, only that in this and the other case no
guilty verdict had been rendered; indeed, the fact of evasion, in both cases, was of less
concern than the indulgence, tantamount de facto to acquittal, bestowed on the aggrieved killers.85 This indulgence could be cited in general discussions, whether of
leniency as a principle to be commended (Tiraqueau), of killings that did not constitute parricidium (Grgoire), or of cases open to judicial discretion (Menocchi); it might
also be urged as a precedent for mercy in a particular case (Ciriaco). Although it
happens here to be urged on behalf of a woman, her sex is relevant only to the
grounds of her iustus dolor, not to her licence to act upon it: a doctrine advanced by the
ancient jurists to excuse, against strict law, the murder by husbands of adulterous
wives could hardly be confined to angry women. Moreover, the vengeance licensed by
this doctrine might be eaten cold, and the killing procured through agency.
So wide a scope for the principle was bound to arouse disquiet. Matthaeus, faced
with precedents now firmly entrenched in the literature, attempts to put them on
another 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 legal
remedy, roundly condemns her failure to seek it, but the very contortions of his argument 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 recognize
that the Woman of Smyrna had no more been acquitted than convicted; the point of
the 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 at
last they had been correctly understood, they would have been brought near to despair 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 Grgoire; but it
remained for Giacinto degli Arcangeli to find in them iustus dolor excusing slaughter of
the innocent. However, the precedent that had helped save defendants lives in Naples
and Mantua failed in Rome, serving only (with much else in the legal arguments) to
arouse the scorn of an Englishman in whose country even the most ingenious advocate would no more have cited the Woman of Smyrna than Aelians elephant who,
brute beast though he were, / Yet understood and punished on the spot / His masters
naughty spouse and faithless friend.86 Yet for all Brownings indignation at once at
the argument and at the crime that it defended, it was by his artistry that the two
traditions, one literary, the other legal, into which Valerius second anecdote, unlike
his 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 established: Valerius abunde constabat in the one, and Gellius controuersia non erat in the
other are good enough. That is lawyers way with precedent.
86. Browning, The Ring and the Book, 1. 2346, 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 Aelians
animal stories, his affinity to Longus in Daphnis and Chloe, and echoes in modern times see
Wolfgang Hbner, Der Mensch in Aelians Tiergeschichte, Antike und Abendland 30 (1984),
15476 (on the elephant p. 160).
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Holford-Strevens

Getting Away With Murder: The

That nice decision of Dolabella, eh?

Leofranc Holford-Strevens, 67 St Bernards Road, Oxford OX2 6EJ, United Kingdom.

International Journal of the Classical Tradition / Spring 2001

International Journal of the Classical Tradition / Spring 2001

International Journal of the Classical Tradition / Spring 2001

Professing reluctance to determine so debatable a question, he cites the Woman of

International Journal of the Classical Tradition / Spring 2001

International Journal of the Classical Tradition / Spring 2001

seemed to be so natural, as to be grounded upon the Law of Nations, and

International Journal of the Classical Tradition / Spring 2001

In addition the Magnificent Barattuccio cited Valerius Maximus, book 8,

International Journal of the Classical Tradition / Spring 2001

had been brought before Dolabella, proconsul of Asia, Dolabella, in doubt

International Journal of the Classical Tradition / Spring 2001

International Journal of the Classical Tradition / Spring 2001

fine and a spell in a nunnery (Condemnata fuit in penam extraordinariam pecuniariam, et

Orestes autem parricidium parricidio ultus, etiam De sapientissim voce liberatus

International Journal of the Classical Tradition / Spring 2001

International Journal of the Classical Tradition / Spring 2001

Ctum, to that assembly of the sage

International Journal of the Classical Tradition / Spring 2001

International Journal of the Classical Tradition / Spring 2001

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