Poena cullei – the guilty one’s head muffled in a wolf-skin, his feet thrust into wooden shoes. Whipped until bleeding profusely, tied up in a sack with a dog, a cock, a viper and a monkey, dragged by black oxen to a body of water and thrown there to drown. Or let wild animals tear him apart. Or burn him.
In Roman law, this was the punishment for parricide (as fans of Steven Saylor remember from Roman Blood). For opponents of capital punishment, it is one of the gruesome examples of death penalty as a form of unenlightened ritual that we, civilized moderns, should have abandoned long ago.
The similarity between the sack penalty and certain rituals reported in Roman texts is striking, whether one buys the argument against the death penalty or not. Livy tells us that in cases of monstrous birth, the monstrous “thing” was seen as a prodigy foreboding evil, a pollution of which the universe must rid itself. The ill-omened prodigy was enclosed alive in a chest, carried to the deep see and thrown overboard. It could be that the Romans saw the murder of one’s father as a symptom of monstrosity in need to be eliminated, or so the above similarity seems to indicate.
By the way, the punishment of the sack persisted through the post-Roman history, although the recipients of it changed with time. The last instance thereof was in 18th-century Germany, where an unwed mother-to-be, who had allegedly aborted her fetus, was punished by the sack.
For the development of the concept behind “parricide” hit the jump.
A very early Roman law (of which we know from later Roman treatises on law) defines parricide as “the act in which a free man inflicts death upon another free man (par pari) and does so “by guile and evil intent” (malo dolo). In 81 BC, another law (Lex Cornelia de sicariis et veneficis) refined the earlier law with specific provisions against Roman citizens who, acting with guile and evil intent, murdered their equals by poison and assault weapons. The punishment, according to both these laws, was exile, not the death penalty. There was no punishment if the murdered person was of inferior status than the murderer.
In 52 BC, a law was passed in Rome (Lex Pompeia de paricidiis) which distinguished a new subcategory of malo dolo murder: that of kin by kin. This law was the first to record in full poena cullei as delineated above, although contemporary comments treat it as a part of the ancestral customs of the Romans. All Roman citizens who murdered their kin were to receive not the exile, as they would if they had murdered an equal, but the death penalty.
Not all kin was equal, however: the “punishment of the sack” was reserved for those who murdered their father, mother, grandfather and grandmother. There were specific provisions in this law against grandfathers who murdered their grandsons, and mothers who murdered their sons or daughters. There was none against a father who murdered his offspring.
Indeed, the father of the family – pater familias – had absolute authority over all members of his family (he had to be a Roman citizen though). If he wished, the father could expose his children to die or kill them. If his sons survived, they became patres familias themselves.
Later legal modifications gradually curtailed the father’s absolute authority: Trajan compelled a father to emancipate a son after it was established that the father had treated him inhumanely. Hadrian exiled a father who killed his son for adultery with his stepmother. Finally, Constantine included the father among the persons punishable for parricide, which was murder of kin, after all. If you want to read more on the Roman father’s suffocating grip on his sons, read on.
The ancient Roman father also had the authority to sell his underage sons into slavery if he needed to settle a debt. The Antonines declared the father’s act of selling his children to be “unlawful and disgraceful,” and one of Diocletian’s laws declared the above sale, donation or pledge to be unlawful. Constantine permitted only very poor parents to sell their children in order to settle their debts. Justinian’s laws forbade the sale of children altogether and increased the penalties against creditors who took possession of the freeborn child of a debtor as a security for debt: if caught, such creditors had to forfeit the debt, pay an equal amount to the child or parent, and undergo corporal punishment.
The unemancipated son was legally capable of obligation, but not of right. He was the instrument through which the father acquired a right of command. Thus the son could be a debtor but not a creditor in his own right (as debtor, he had the same obligations as his father would). He could do commerce, but any property he bought vested in the father. He could make valid contracts, but the contractual right vested in the father. The son could contract a civil marriage and beget children, but the patria potestas over those children vested with the son’s father. Ditto about the son’s wife—she was subject to her father-in-law until he emancipated her husband or died.
The father could permit his son to manage property – just as he could permit his slave to manage it. If the property’s condition improved under the son, the profit went to father; if it deteriorated, the son was responsible for the costs of improvement. The son had the so-called vindictive right (i.e., right to sue in his own name) but if he won damages, the father collected.
Augustus made it possible for a son to earn property by military service. That property, known as peculium castrense, was to be treated as the son’s, not his father’s. Later, the same provisions came to apply to what the son earned in civil service (peculium quasi-castrense). Further laws provided specifically that the son could own, as an independent person, various properties as described above, as well as property inherited on his mother’s side. The only property a son couldn’t own was that which came from his father’s estate.
A son could be released from the power of the father by voluntary renunciation on the father’s part. The emancipated son thus became legally independent. But the emancipation meant that the father had removed him from his original family. Hence, the son had lost his rights in that family, and in particular, his right to succeed his father’s property upon the father’s death.
It appears that the Romans considered the absolute power of the Roman father over his family as natural and primordial. A son who killed his father was an abomination in the natural order of things. Hence he had to be given a special punishment—that of the sack.
We have come a long way, haven’t we. Have we?