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Getting away with murder: The literary and forensic fortune of two RomanExempla

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Abstract

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 woman’s 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 ofiustus 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 Browning’s poemThe Ring and the Book.

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References

  1. See O. F. Robinson,The Criminal Law of Ancient Rome (London: Duckworth, 1995), 46–7.

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  2. Although a Marcus Popillius Laenas was praetor in 176BC, the story is usually attached to his son, consul in 139BC, and therefore praetor in 142BC or earlier, but a later namesake is attested; Friedrich Münzer, “Das Konsulpaar von 139 v. Chr.,”Klio,24, (1931), 333–8. Valerius’ language excludes a trial before the people (iudicium populi); the location of the case in this chapter and not the next suggests aiudicium publicum before a murder-court, (quaestio inter sicarios) presided over by the praetor but decided by the vote of the jurors (iudices), rather than aiudicium priuatum on a demand for the matricide’s surrender to her victim’s kindred, decided by the praetor after non-binding advice from hisconsilium It is disputed whether thequaestio inter sicarios over which, precisely in 142BC, 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 römischen Kriminalverfahrens in vorsullanischer Zeit (Abhandlungen der Bayerischen Akademie der Wissenschaften, philosophisch-historische Klasse,NF 56; Munich: Verlag der Bayerischen Akademie der Wissenschaften, 1962), 48–51, 98–105.

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

  4. P. Cornelius Dolabella, praetor in 69BC, was sent to Asia after his year of office in Rome; he is probably the father of Cicero’s temporary son-in-law, the suffect consul of 44BC, 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), 83–5; cf. A. N. Sherwin-White,Roman Society and Roman Law in the New Testament (Oxford: Clarendon Press, 1963), 17–23. The proconsul, hearing the caseextra ordinem with aconsilium chosen by himself, was free to do justice as he saw fit.

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

  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).

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  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 ofc.1100, which has the Woman of Smyrna only in her Gellian recension.

  10. L. A. Holford-Strevens,Aulus Gellius (London: Duckworth, 1988), 13–14. On Gellius’ aims 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 römischen Welt (ANRW), II 34. 2 (Berlin and New York: W. de Gruyter, 1994), 1834–62; particular aspects are considered by D. W. T. Vessey, “Aulus Gellius and the Cult of the Past,” ibid. in H. Temporini and W. Haase (eds.),Aufstieg und Niedergang der römischen Welt (ANRW), II 34. 2 (Berlin and New York: W. de Gruyter, 1994), 1862–1917; Madeleine M. Henry, “On the Aims and Purposes of Aulus Gellius’ ‘Noctes Atticae’,“ ibid.in H. Temporini and W. Haase (eds.),Aufstieg und Niedergang der römischen Welt (ANRW), II 34. 2 (Berlin and New York: W. de Gruyter, 1994), 1918–41, who notes this chapter at p. 1934.

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  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, 227–9. One Gnaeus Dolabella was consul, and another praetor, in 81BC; the former is mentioned in passing at 15. 28. 3.

  12. The subjunctivefuisset indicates that Gellius is quoting the substance of their opinion that the vengeance was merited, whereas the indicativeuidebatur 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 ownoccidissent, reporting the woman’s confession, cast doubt on the facts alleged.

  13. Aulus Gellius,Noctes Atticae, 12.7, ed. P. K. Marshall, 2 vols. (rev. edn. Oxford: Clarendon Press, 1990) ii. 371–2. The summary in the list of contents prefixed by Gellius to the work is “Quam ob causam Cn. Dolabella proconsul ream mulierem ueneficii confitentemque 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”).

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  14. See Elizabeth Rawson,Roman Culture and Society (Oxford: Clarendon Press, 1991), 444–67.

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  15. See Holford-Strevens,Aulus Gellius, 218–23.

  16. Antoninus Pius, under whom most of Gellius’ anecdotes are set, had ruled in a rescript cited atDigest (hereafterD) 48. 5. 39. (38). 8 thatcum sit difficillimum iustum dolorem temperare (“since it is extremely difficult to control a just grief”), the sentence is to be labour for life forhumiliores, relegation (temporary; seeD. 48. 8. 1.5) to an island forhonestiores; as Accursius would explain, “relegari: cum alias poena parricidii teneatur” (“to be relegated: since otherwise he would be liable to the penalty forparricidium”), Accursii glossa in Digestum Novum, facs. of edn. Venice: Baptista de Tortis, 1487 in Corpus Glossatorum Iuris Civilis, 9 (Turin: Officina Erasmiana, 1968), fol. 229 v. See tooD. 29. 5. 3. 3, Paul,Sententiae 2. 26. 5 =Mosaicarum et Romanarum legum collatio 4. 12. 4, and for lay use ofdolor in such circumstances e. g. Valerius 6.1.13, Juvenal,Satire 10. 314–17.

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

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  18. Strictly to the next day but one (perendie), but not always so confined. In some instances this was compulsory; but Dolabella, hearing a case against a non-citizenextra ordinem, was master of his own procedure.

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

  20. The text fromSmyrnaea tocomperisset is seriously lacunose; I give it as edited by Guy Sabbah inAmmien Marcellin: Histoire, 6 vols. (Paris, 1968–99), vi (1999), 20. Other reconstructions have been proposed.

  21. Res gestae 29.2.19. The narrative is introduced with the wordsut exemplum est illud antiquitati admodum notum (“as is that example very well known to ancient times”).

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

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

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  24. A characteristic medieval (and Greek) misspelling.

  25. Lucan,Bellum ciuile 2. 142–3.

  26. John of Salisbury,Policraticus, 4. 11, ed. K. S. B. Keats-Rohan (Corpus Christianorum, Continuatio Mediaevalis 118; Turnout: Brepols, 1993), 268–9. John’s verbatim quotations from Gellius are mediated through a florilegium of that writer known as ϕ; see Janet Martin, “Uses of Tradition: Gellius, Petronius, and John of Salisbury,”Viator 10 (1979), 57–66 at 59–61 and, for the argument that it was made by William of Malmesbury, Rodney Thomson,William of Malmesbury (Woodbridge: Boydell, 1987), 185–95. The tale also appears in another bearer of ϕ, a MS closely associated with William, Bodleian Library, MS Lat. class. D. 39, fols. 155rb-va, but with minor variants not repeated in John; William himself forbears to include this story in his selection from ϕ in hisPolyhistor, ed. Helen Testroet Ouellette (Binghamton, NY: Center for Medieval & Early Renaissance Studies, 1982), 65, Il. 3–4.

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  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 woman’s 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 only a question of law remained” (John Dickinson,The Statesman’s Book (New York: Knopf, 1927], 52), or “The matter of legal right was external to the case because there was 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.

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  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 seeD. 22. 6. 9. pr.; for restrictionsCodex Justinianus 1. 18. 3, 13. Nor were women permitted to make a profit out of ignorance (ibid.Codex Justinianus 1. 18. 11=Codex Theodosianus 3. 5. 3).

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

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

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  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 Cotgrave’s 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.”

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

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

  35. Michel de Montaugne,Essais3. 11, ed. Pierre Villey, 3 vols. (Paris: Alcan, 1930–1), iii. 493–4.

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  36. John Florio,The Essayes or Morall, Politike and Millitarie Discourses of Lord Michael de Montaigne (London, 1610), 614. See Natalie Zemon Davis,The Return of Martin Guerre (Cambridge, Mass.: Harvard University Press, 1983), 119–20.

  37. Auli Gelli Noctes Atticae cum Selectis Novisque Commentariis et Accuratâ, Recensione Antonii ThysI, J.C. et Jacobi Oisell, J.C. (Leiden: Pieter Leffen, 1666), p. 635, col. b, n. 4; Oiselius annotated books 13–20. 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 Vtrisquue Gronovii (Leiden: Cornelis Boutesteyn and Johannes du Vivié, 1706), p. 562, col. a, n. 8. The Delphin editor of 1681, Jacques Proust SJ, does not venture an opinion.

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

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

  41. Book 8 begins with a section on notable trials, divided into a (one-sentence)praefatio, 13absoluti, 8damnati, and 2ambusti (“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 collectæ, rev. edn. (Frankfurt am Main, 1600), 17 (decisio 5, num. 22–4).

  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 theTiers Livre as Trinquamelle, “grand præsident” of the centumviral court of Myrelingues who interrogates Bridoye on his methods; see Screech’s note on ch. XXXIX, 1. 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 Alexander’s continuator (William of Melitona?),Summa Theologica, pt. 4, qu. 86, mem. 3, art. 1, fol. 343rb in Anton Koberger’s 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, Statutorúmq; temperandis, aut etiam remittendis, & id quibus quótq; ex causis (s.l., 1559), 10–11 (1.17).

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

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

  49. See respectively Diodorus Siculus 4.65. 6–7, Justin 1.2. 10, Pseudo-Plutarch,Parallela minora 19; I have corrected Grégoire’s 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 forparrcidium”).

  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 Hadrian’s 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; misunderstandinglatronis iure asut latronem instead ofut latro (cf.thesaurus linguae Latinae, vii/2. 700, Il.5–22), 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 excussed 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 theLex 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 son’s character, as inAuthenticum 111 [=Novels 115, c. 3post 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 toiustum dolorem above, but more probably a misprint foriustum.

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

  55. “...extra lectum in calle cubilis super vna tabula, vel assere” (p. 476b).

  56. Ibid.“...extra lectum in calle cubilis super vna tabula, vel assere” (p. 476b). : “sed in actu successiuo, prout quoitidie non habere debitum à marito, & ob id quotidie subesse cruciatui isti appetitus generationis, et quotidie timere mortem comminatam, et singulis horis dicitur iustus dolor, et sic respectu ultimi doloris semper dicitur fieri incõtinenti, 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 Menocchi’s 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 defendant’s youth (he was only 16) and the pressure put upon him by his mother and by his father’s enemies.

  58. One might object that reaction to a last-straw provocation after previous patience is confused 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 crimnibus ad lib. xlvii. et xlviii. Dig. commentarius (Utrecht: Johan van Waesberge, 1644), 584–6; see Cicero,Pro Milone 8. Matthaeus, said in theBiographisch 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: 26–9 who killed her son for food during a siege, but draws the line at Horatius, “qui rectius à Tullo rege damnatus, quàm ad populum provocato judicio absolutus est. Non enim magnum scelus, atque adeò nec justissimus dolor fuit, lugeri à sponsa hostem sponsum. Nisi fortasse etiam Davidem Israelitarum regem magnum scelus admisisse putamus, cum parta à 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 fiancé should be mourned by his fiancée. 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. 90–1, Opera Omnia, II. j. ed M.L. van Poll-van de Lisdonk, M. Mann Phillip, and Chr. Robinson (Amsterdam: North-Holland, 1993), 196–7.

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  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. Italiancrederei, good Latincrediderim.

  64. Observationes criminales, ciuiles, et mixtae, liber primus (Rome: N. Chellini, 1688), 387a (cap. VI, § 1. 48–9).

  65. Browning’s “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. 71–378; see Beatrice Corrigan, “New Documents on Browning’s Roman Murder Case”,Studies in Philology 49 (1952), 520–33; ead.,Curious Annals: New Documents Relating to Browning’s Roman Murder Story (Toronto: University of Toronto Press, 1956); ead., “Browning’s Roman Murder Story”,English Miscellany 11 (1960), 333–400. In addition, two manuscript narratives circulated in various recensions (Corrigan,Currious Annals, pp. xvii–xix).

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  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. xix–xlv, amply justifies the scepticism of John Marshall Gest,The Old Yellow Book, Source of Browning’s 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), 600–19; Anna Foa,Dizionario biografico degli italiani, xxvii (1982), 678–82, s.n. “Comparini, Francesca Pompilia”, clearly disbelieves in her innocence, but thinks all the better of her for resisting and dying unsubdued.

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  67. On the legal system, and the lawyers, see Gest 51–69, who demonstrates that Browning failed to understand the ways of lawyers and at pp. 620–30 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. 950–62); for the Milanese case see p. xvi.

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

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

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

  72. This interpretation of thecognomen was anticipated by early French translators, who speak ofValère le Grand (anon., Lyon: Mathieu Huss, 1489; J. Le Blond, paris: Gilles Corrozes, 1557).

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

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  74. See Holford-Strevens,Aulus Gellius, 34 with n. 77.

  75. Observe him defending actions by theodosius the elder that others found excessive (29. 5. 23–4); cf. John Matthews,The Roman Empire of Ammianus (London, 1989), 374. Indeed, for all his condemnation ofacerbitas and like vices, he sets more store byseveritas than byclementia orlenitas; see Axel Brandt,Moralische Werte in den Res gestae des Ammianus Marcellinus (Hypomnemata, 122; Göttingen: Vandenhoeck & Ruprecht, 1999), 174–93. Timothy D. Barnes,Ammianus Marcellinus and the Representation of Historical Reality (Cornell Studies in Classical Philology, 56; Ithaca and London, 1988), 101–2 even finds a “sadistic quality” in his writing (cf. Brandt’s review of Barnes, above in this volume ofIJCT, 7 [2000/2001], 442).

  76. Ammianus 29. 2. 30.

  77. But see Jill Harries,Law and Empire in Late Antiquity (Cambridge: Cambridge University Press, 1999), 135–52.

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  78. Livy 2. 5. 5:poenae capiendae ministerium patri de liberis consulatus imposuit, et qui spectator erat amouendus, eum ipsum fortuna exactorem supplicii dedit (“the office of consul imposed on 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”).

  79. 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”).

  80. 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”).

  81. 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, 196–7.

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

  83. See Tony Honoré,Tribonian (London: Duckworth, 1978), 247–51. 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), 486–9.

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

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

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Holford-Strevens, L. Getting away with murder: The literary and forensic fortune of two RomanExempla . Int class trad 7, 489–514 (2001). https://doi.org/10.1007/BF02688453

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