The Father’s Right to Kill His Adulterous Daughter in the Late Ius Commune

Abstract

The father’s right to kill his adulterous daughter that had been introduced by Roman law aroused some interesting discussions among law scholars even in the Modern Age. They accepted the idea that the father could kill his daughter and her lover with impunity in the case of flagrant adultery. This right could be deemed as connected to paternal authority. It was a relic of the ancient ius vitae ac necis which, meanwhile, had developed into a milder right to chastise a disobedient child. Some law scholars dealing with father’s powers between the 16th and the 17th centuries dedicated entire chapters of their works to this considerably interesting topic. The father would be granted impunity only if he had killed his adulterous daughter on certain conditions required by Roman law. The legacy of Roman law on this matter was very clear indeed, but the law scholars of the late ius commune had to update those conditions and to clarify them. Furthermore, law scholars discussed some aspects of the father’s right to kill his adulterous daughter that were still disputed and had not received a definitive solution, such as the father’s possibility to ask someone for help or to kill his daughter despite the fact that she was pregnant. Other important subjects were also dealt with, e.g. presumptions and circumstantial evidences in adultery, which was a hard-to-prove crime. The father’s right to kill his adulterous daughter also caused moral problems because, although it was lawful, it did not prevent the father from committing a mortal sin: in this way, the relationship between internal forum and external forum was often dealt with as a pivotal topic.