Corpus iurisprudentiae Romanae

1 Ulpianus, On Adultery, Book I. This law was introduced by the Divine Augustus.

2 The Same, Disputations, Book VIII. It is provided by the Julian Law that anyone who is required to formulate an accusation of adultery, because the woman married before she was notified that she would be accused, cannot bring the charge against her until he has disposed of the case of the defendant and his case is not considered to have been disposed of, unless he has been convicted. 1The following exception can be pleaded against a husband who brings an accusation in that capacity, namely: “If he is said to have betrayed the law, in that, after having begun a prosecution for adultery, he has abandoned it.” 2The crime of pandering is included in the Julian Law on Adultery, as a penalty has been prescribed against a husband who profits pecuniarily by the adultery of his wife; as well as against one who retains his wife after she has been taken in adultery. 3Moreover, he who permits his wife to commit this offence, holds his marriage in contempt; and where anyone who does not become indignant on account of such pollution, the penalty for adultery is not inflicted. 4Anyone who alleges that he has committed adultery with the assistance of the husband, desires, indeed, to lessen his crime, but an excuse of this kind is not admitted. Therefore, if the defendant should wish to denounce the husband for having acted as a pander, he shall not be heard, if he has once been accused. 5If a husband should attempt to prosecute his wife in a criminal case, will the allegation of having acted as her pander bar him from bringing the accusation? I think that it will not. Therefore the act of the husband in a case of this kind renders him liable, but does not excuse his wife. 6Hence it may be asked whether he who has cognizance of the prosecution for adultery can decide against the husband because of his having acted as a pander? I think that he can do so. For Claudius Gorgus, a most illustrious man, having accused his wife, and it having been ascertained that although he had caught her in adultery he still kept her, was condemned by the Divine Severus for being guilty of pandering, without any accuser having appeared against him. 7But if a stranger, after having been accused, alleges that the husband was guilty of pandering, he does not diminish his own crime, nor does he subject the husband to a penalty. 8If the husband and the father of the woman appear at the same time for the purpose of accusing her, the question arises, which of them should be given the preference by the Prætor? The better opinion is, that the husband should be entitled to the preference, for it may well be believed that he will prosecute the accusation with greater anger and vexation. This is so far true, that even where the father has already appeared, and filed the papers containing the accusation, if the husband has not been negligent or guilty of delay, but is himself prepared to bring the accusation, and introduce evidence, and fortify it, in order that the case may be the more easily proved before the judges, the same thing must be said. 9But whenever others who have the right to bring the charge after the husband and the father hasten to do so; it is stated by the law that he who has jurisdiction of the case must determine who shall be the accuser.

3 The Same, On Adultery, Book II. Therefore, unless the father proves that the husband is infamous, or shows that he was in collusion with his wife rather than that he actually intends to accuse her, he must give place to the husband.

4 The Same, Disputations, Book VIII. If the husband has appeared and brought the accusation, the time does not run against the father to prevent him from prosecuting it; still, until one of them institutes proceedings, the time, will run against both; but, indeed, when the husband begins to prosecute, the remaining time does not run against the person who cannot do so. This may be said with reference to anyone who begins proceedings against the adulterer or the adulteress, for the time ceases to run against the person who is not made the object of the accusation. This applies to husbands and fathers. 1The power of bringing the accusation after the husband and the father is granted to strangers who have a right to do so; for, after sixty days have elapsed, four months, and even available ones, are granted to strangers. 2If a stranger was the first one to bring the accusation, the question arises whether, if the husband appears, he can be permitted to accuse the woman. I think that the better opinion is that, in this instance, the husband should be heard if he has not been guilty of negligence. Therefore, even if the accusation has been begun by a stranger, and the woman should be acquitted, the husband ought, nevertheless, to be permitted to renew the accusation; provided he can allege good reasons by which he was prevented from bringing it previously.

5 Julianus, Digest, Book LXXXVI. There is no doubt that a woman whom I have married can be prosecuted for adultery committed during her first marriage, as it is clearly provided by the Julian Law for the punishment of adultery that, if proceedings for this offence are brought against a woman who is a widow, the accuser has the choice of accusing either the adulterer or adulteress first, whichever he prefers; but if the woman is married, he must first prosecute the adulterer and then the woman.

6 Papinianus, On Adultery, Book I. The Julian Law only applies to free persons who have been the victims of adultery or debauchery. With reference to female slaves, recourse can easily be had to the action authorized by the Aquilian Law, and that for injury will also lie, and the Prætorian action for the corruption of a slave will not be refused; so that the person guilty of this crime will not escape on account of the multiplicity of actions. 1The law promiscuously and incorrectly designates the same crime by the terms debauchery and adultery. Properly speaking, adultery is only committed with a married woman; this name having been adopted on account of the child being begotten by another than the husband. Debauchery, which the Greeks call “corruption,” is committed with a virgin, or a widow. 2A son under paternal control, who is a husband, is not, by this law, distinguished from one who is his own master. The Divine Hadrian stated in a Rescript addressed to Rosianus Geminus, that even without the consent of his father, a son under paternal control could bring an accusation under this law. 3The husband, although he may be already prosecuting two persons for another crime, can, by his marital right, accuse a third party, because this case is not included among the others.

7 Marcianus, Institutes, Book X. A man who contracts matrimony with his own female ward in violation of the Decree of the Senate is not legally married; and he who was her guardian or curator can be prosecuted for adultery if he marries a girl under twenty-six years of age who has not been betrothed to him, or destined for him, or mentioned for this purpose in a will.

8 Marcianus, in the Second Book On Adultery, by Papinianus, states that a common accusation for incest can be brought at the same time against the two persons concerned.

9 Papinianus, On Adultery, Book II. Anyone who knowingly lends his house to enable debauchery or adultery to be committed there with a matron who is not his wife, or with a male, or who pecuniarily profits by the adultery of his wife, no matter what may be his status, is punished as an adulterer. 1It is clear that by the term “house” every kind of habitation is meant.

10 Ulpianus, On Adultery, Book IV. Anyone who lends the house of a friend is also liable. 1Where anyone encourages the commission of debauchery in a field, or in a bath, he should be included in the law. 2When, however, persons are accustomed to assemble in some house for the purpose of making arrangements to commit adultery, even if it was not committed in that place, still, the owner is considered to have lent his house for the commission of debauchery or adultery, because these offences would not have been perpetrated if these meetings had not taken place.

11 Papinianus, On Adultery, Book II. A matron means not only a married woman, but also a widow. 1Women who lend their houses, or have received any compensation for debauchery which they have committed, are also liable under this Section of the law. 2A woman who gratuitously acts as a bawd for the purpose of avoiding the penalty for adultery, or hires her services to appear in the theatre, can be accused and convicted of adultery under the Decree of the Senate.

12 The Same, On Adultery. A soldier who has compromised with the seducer of his wife should be released from his oath, and be deported. 1It has very properly been decided that a soldier who lives in concubinage with his sister’s daughter, although this is not marriage, will be liable to punishment for adultery. 2A woman who is classed among those who have committed adultery cannot be defended in court while she is absent. 3A father-in-law who, in a written accusation filed with the Governor, stated that he accused his daughter-in-law of adultery, preferred to abandon the accusation and obtain her dowry. The question arises whether you think that a scheme of this kind should be permitted. The answer was, that it is a very dishonorable example for a person, after he has brought an accusation against his daughter-in-law, to desire to abandon it, and remain content with the profit obtained from her dowry, as the marriage was dissolved through the fault of the woman. Wherefore he will not be unjustly barred who was not ashamed to prefer the advantage of the dowry to avenging the honor of his house. 4It is clear that anyone guilty of adultery can be prosecuted within five years from the time when the crime was committed, even though the woman should be dead. 5A certain person desired to accuse a woman of adultery, and asked that the days which he had passed in prison should not be counted against him. I, having agreed to this, another contradicted me; and, if you approve of his opinion, I ask you to write to me after careful consideration of the question. The answer was, that both the terms and the intention of the law sustain your conclusion; for it has been decided that only available days should be counted against the accuser, that is to say, those in which he can comply with the formalities required by the accusation. Therefore, undoubtedly, when you hold that the days during which the complainant was in prison are not to be included among those available days, no reason exists for opposing your opinion. 6The sixty days that are counted as available and in which the husband can bring the accusation certainly include festivals, provided the accuser has the power of appearing before the Governor, because the information can be given to the latter even when he is not on the bench. If, however, he has lost this privilege, he is not prevented from filing his complaint with the judge during the other four months. 7The question arose whether a man could, by the right of a husband, accuse a woman who had been betrothed to him, and had afterwards been given in marriage by her father to another. The answer was, I think, that the accuser, in a case of this kind, institutes a new proceeding when he desires to bring a charge of adultery, for this reason only, that the girl who had been betrothed to him was afterwards given by her father in marriage to another. 8A woman can be prosecuted for adultery after the death of her husband. 9Should a woman who asks for delay on account of the youth of her son obtain it from the accuser, or ought she to be heard? I answered: This woman does not seem to have a just defence who offers the age of her son as a pretext for evading a legal accusation. For the charge of adultery brought against her does not prejudice the child, since she herself may be an adulteress, and the child still have the deceased for his father. 10When I desired to accuse a woman of adultery who, after having committed the offence, continued in the same marital relation, my position was disputed. I ask whether the opinion was correct. The answer was: “You should not have been ignorant that, during the marriage which existed when the adultery was said to have been committed, the woman could not have been prosecuted for adultery, and that during this time the adulterer himself could not have been accused.” 11Although a woman may be alleged to have married him with whom she is suspected of having committed adultery, she cannot be accused before the adulterer has been convicted. Otherwise, husbands desiring to have marriages, which have subsequently been contracted, annulled, would have recourse to this pretext, and say that their wives had married men with whom they had committed adultery. 12A woman, having heard that her absent husband was dead, married another, and her first husband afterwards returned. I ask, what should be decided with reference to this woman? The answer was that the question is one of law and not of fact; for if a long time had elapsed without any proof of debauchery having been made, and the woman, having been induced by false rumors, and, as it were, released from her former tie, married a second time in accordance with law, as it is probable that she was deceived, and she can be held to have done nothing deserving of punishment. If, however, it is established that the supposed death of her husband furnished an inducement for her marrying a second time, as her chastity is affected by this fact, she should be punished in proportion to the character of the offence. 13I married a woman accused of adultery, and, as soon as she was convicted, I repudiated her. I ask whether I should be considered to have furnished the cause of the separation. The answer was that, since by the Julian Law you are prohibited from keeping a wife of this kind, it is clear that you should not be considered to have furnished the cause for the separation. Therefore, the law will be applied just as if a divorce had taken place through the fault of the woman.

13 Ulpianus, On Adultery, Book II. These words of the law, namely, “In order that no one may, knowingly and fraudulently, commit debauchery or adultery,” are applicable both to him who advised it, and to him who committed the act of debauchery or adultery.

14 The Same, On Adultery, Book II. Where a wife did not commit adultery, but a concubine did, the husband cannot accuse her as such, because she is not his wife; still, he is not prohibited by law from bringing an accusation as a stranger, provided that she, in giving herself as a concubine, did not forfeit the name of a matron, as, for instance, a woman who had been the concubine of her patron. 1It is clear that, whether the woman is a lawful wife or not, her husband can bring the accusation against her; for Sextus Cæcilius states that this law is applicable to all marriages; and he quotes the passage from Homer where he says the Atrides are not the only ones who love their wives. 2A husband can prosecute his wife for adultery when she has committed it publicly, although if she were a widow, debauchery could be committed by her with impunity. 3The Divine Severus and Antoninus stated in a Rescript, that this offence could even be prosecuted in the case of a woman who was betrothed, because she is not permitted to violate any marriage whatever, nor even the hope of matrimony. 4Where, however, she is a person with whom incest has been committed, or a woman who is kept as a wife, but still cannot be one in reality, it must be said that the husband cannot, as such, accuse her, but he can do so as a stranger. 5The judge who has jurisdiction of adultery must have before his eyes, and investigate whether the husband, living modestly, has afforded his wife the opportunity of having good morals; for it would be considered extremely unjust for the husband to require chastity for his wife, which he himself does not practice. This, indeed, may condemn the husband, but cannot afford a set-off for mutual crime when committed by both parties. 6If anyone wishes to accuse his wife, and alleges that she committed adultery before he married her, he cannot bring the accusation by his right as a husband, because she did not commit adultery while she was married to him. This can also be said with reference to a concubine whom the man who kept her subsequently married; or with reference to a daughter under paternal control, to whose union her father afterwards gave his consent. 7If anyone should openly accuse his wife of having committed adultery, while he was a prisoner in the hands of the enemy, it would be more indulgent to hold that he can accuse her by the right of a husband; but her husband cannot prosecute her for adultery, if she suffered violence from the enemy. For anyone who is violated cannot be convicted of adultery or fornication on this account. 8Where a girl, less than twelve years old, brought into the house of her husband, commits adultery, and afterwards remains with him until she has passed that age, and begins to be his wife; she cannot be accused of adultery by her husband, for the reason that she committed it before reaching the marriageable age; but, according to a Rescript of the Divine Severus, which is mentioned above, she can be accused as having been betrothed. 9If a woman who has been repudiated should afterwards be taken back by her husband, not in order to continue the first marriage, but under another which has taken place, let us see whether she can be accused of the crime which she committed during her first marriage. I think that she cannot be, for her husband, by taking her back, has done away with all the crimes of the first marriage. 10The same rule must be adopted, if he desires to accuse of fornication the woman whom he afterwards married; for he is too late when he bases his accusation on conduct which he approved by marrying her.

15 Scævola, Rules, Book IV. He who, by aid, advice, or fraud, causes a man or a woman who has been taken in adultery to be released, either in consideration of the payment of money, or on account of any kind of an agreement, shall suffer the same penalty which is imposed upon those convicted of the crime of pandering. 1If a husband, for the purpose of defaming his wife, provides her with an adulterer, in order that he may catch them, both the husband and the wife are guilty of the crime of adultery, according to a decree of the Senate enacted with reference to this subject. 2The husband, in the first place, or the father, who has his daughter under his control, is permitted to bring an accusation within sixty days of the divorce, and the power to do this is not granted to anyone else within that time, and, after it has elapsed, the desire of either party will not be considered. 3Those who prosecute by the right of a husband are not free from the risk of false accusation.

16 Ulpianus, On Adultery, Book II. If the husband is a magistrate, the father can precede him in bringing the accusation, but it is not necessary for him to do so. Pomponius thinks that it should be held that, as long as the husband retains his office, action by the father should be prevented, to avoid depriving the husband of a right to which he also is entitled. Therefore the sixty days do not run against the father, as he cannot bring the accusation. 1It is provided by the Seventh Section of the Julian Law with reference to Adultery, that no one can include in the number of accused persons anyone who is absent on business for the State, without invalidating the judgment. For it does not seem just for a person who is absent on public business to be numbered among the accused, when he is in the employ of the government. 2It is necessary to add, “without invalidating the judgment.” But if anyone should be absent on public business, for the purpose of avoiding prosecution, this pretext will not be of any advantage to him. 3If, however, anyone is present who still is considered absent, for instance, a person who belongs to the night watch, or who is serving as a soldier in the city camps, it must be said that he cannot be accused, for he is not compelled to trouble himself to appear. 4Generally speaking, it should be held that only the absence of those is excusable who are in another province of the country than that in which they are accused. Hence, if anyone commits adultery in a province in which he is employed, he can be accused there, unless he is a person over whom the Governor has no jurisdiction. 5If the father and the husband fail to accuse the woman within sixty days, will the time immediately begin to run in favor of a stranger? Pomponius thinks that a stranger can be permitted to bring the accusation as soon as the others have refused to do so. I think that his opinion should be adopted, for it can be said even more decidedly that he who has stated that he will not bring the accusation ought not afterwards to be heard. 6The Julian Law relating to Adultery especially prohibits accusation by certain persons, as, for instance, by a minor of twenty-five years of age, for an accuser is not considered capable who is not yet of mature age. This is correct, if he does not prosecute an injury to his own marriage. But if he desires to vindicate the honor of his own marriage, although he may bring the accusation by the right of a stranger, he should still be heard; for no prescription ought to bar anyone who avenges his own injury. And, indeed, if induced by the alacrity of youth, or inflamed by the fervor of maturity, he hastens to bring the accusation, the penalty for malicious prosecution will not hastily be inflicted upon him. We understand a minor of twenty-five years of age to be one who is in his twenty-fifth year. 7The prescriptions which it is customary to introduce against persons bringing the accusation of adultery are usually discussed before the party implicated has been included in the number of those accused, but when this once has taken place, he cannot plead prescription. 8If a woman remains in widowhood, the accuser has the right to begin with either party he wishes, with the adulterer or the adulteress. 9If anyone accuses the adulterer and the adulteress at the same time, the accusation is void, and he can begin again with either party whom he may select, just as if he had accused neither, because the first accusation is of no force or effect.

17 The Same, On Adultery, Book I. Anyone who has served notice of repudiation upon his wife can also notify her not to marry Seius, and if he has notified her, he can begin with her.

18 The Same, On the Julian Law Relating to Adultery, Book II. What should we understand the term “notify” to mean? Does it mean an application to the court, or merely an ordinary notice? I think that if application is not made to the court, it will be sufficient for him to state that he is about to bring an accusation for adultery. 1What then should be done, if he did not serve notice, but filed a written accusation before the woman married again; and she should marry, whether he was aware of this fact, or did not know it? I think that she should not be considered as notified, and therefore that the accuser cannot begin with her. 2But what if he only notified her not to marry, but did not add why; shall she be considered to be legally married? The better opinion is, to hold that the notice seems to reserve the choice for the prosecutor who brings the accusation. Therefore if he mentions the crime of adultery in the notice, even if he did not give the name of the judge, we think that the woman can be accused, just as if the notice had been served. 3What, however, would be the result if, in the notice, it was stated specifically with whom she had committed adultery, and the complainant should afterwards wish to accuse her of adultery with someone else? The better opinion is, that he ought not to be heard, for he does not bring the accusation for the crime mentioned in the notice. 4If, however, he serves notice by an agent, I think that he can bring the accusation if he desires to do so; and that the notice by the agent will be sufficient. 5Therefore, if he serves notice by his steward, that is to say, if a master serves notice by his slave, it will be valid. 6The question arises whether one person can prosecute the adulteress, and another the adulterer; so that, although both cannot be prosecuted at the same time by the same person, they can each be accused by a different individual. It is not reasonable to adopt the opinion that different accusers can be permitted to prosecute, for if the woman should marry before having been notified, she cannot be accused first; hence she must wait for the decision to be rendered with reference to the adulterer. If he should be acquitted, the woman will gain her case through him, and cannot afterwards be accused. If he should be convicted, she will not, for this reason, be condemned, but she can defend her case, and perhaps gain it either by favor, justice, or the assistance of the law. For what if the adulterer was oppressed by the efforts of an enemy, or by false testimony, or was overwhelmed by suborned witnesses before the court, or was either unwilling or unable to take an appeal, and the woman, having obtained an upright judge, defended her chastity? 7But if the adulterer, before he was convicted,

19 Macer, On Public Prosecutions, Book I. Or before the accusation was brought against him,

20 Ulpianus, On the Julian Law Relating to Adultery, Book II. Should die, it has been decided that even if he was dead, the woman could be accused without being able to plead an exception. 1If, however, not death, but some penalty imposed upon him should remove the defendant, we say that the woman can still be prosecuted. 2If at the time when the person to be prosecuted was chosen, the adulteress was not married, but was married when he was acquitted, it must be said that even if the adulterer was acquitted she could still be accused, because she was not married at the time when the adulterer was selected to be prosecuted first. 3If the adulterer should be acquitted, a married woman cannot be accused, even by the person who prosecuted the adulterer and was defeated, nor can she be accused by anyone else. Hence, if the accuser should be in collusion with the adulterer, and the latter is acquitted, he renders the married woman secure against prosecution brought by anyone. It is clear that she can be accused if she should cease to be married, for the law only protects a woman as long as she is married.

21 Papinianus, On Adultery, Book I. The right is granted to the father to kill a man who commits adultery with his daughter while she is under his control. Therefore no other relative can legally do this, nor can a son under paternal control, who is a father, do so with impunity.

22 Ulpianus, On Adultery, Book I, Hence it happens that neither the father nor the grandfather can kill the adulterer. This is not unreasonable, for he cannot be considered to have anyone under his control who has not control of himself.

23 Papinianus, On Adultery, Book I. In this law, the natural father is not distinguished from the adoptive father. 1In the accusation of his daughter, who is a widow, the father is not entitled to the preference. 2The right to kill the adulterer is granted to the father in his own house, even though his daughter does not live there, or in the house of his son-in-law. The house should be understood to mean the residence, as in the Cornelian Law relating to injuries. 3He, however, who can kill an adulterer, has a much greater right to treat him with contumely. 4Hence the father, and not the husband, has the right to kill the woman and every adulterer; for the reason that, in general, paternal affection is solicitous for the interests of the children, but the heat and impetuosity of the husband, who decides too quickly, should be restrained.

24 Ulpianus, On Adultery, Book I. What the law says, that is, “If he finds a man committing adultery with his daughter,” does not seem to be superfluous; for it signifies that the father shall have this power only when he surprises his daughter in the very act of adultery. Labeo also adopts this opinion; and Pomponius says that the man must be killed while in the very performance of the sexual act. This is what Solon and Dracho mean by the words, “ἔρνῳ.” 1It is sufficient for the father for his daughter to be subject to his authority at the time when he kills the adulterer, although she may not have been at the time when he gave her in marriage; for suppose that she had afterwards come under his control. 2Therefore the father shall not be permitted to kill the parties wherever he surprises them, but only in his own house, or in that of his son-in-law. The reason for this is, that the legislator thought that the injury was greater where the daughter caused the adulterer to be introduced into the house of her father or her husband. 3If, however, her father lives elsewhere, and has another house in which he does not reside, and surprises his daughter there, he cannot kill her. 4Where the law says, “He may kill his daughter at once;” this must be understood to mean that having to-day killed the adulterer he can not reserve his daughter to be killed subsequently; for he should kill both of them with one blow and one attack, and be inflamed by the same resentment against both. But if, without any connivance on his part, his daughter should take to flight, while he is killing the adulterer, and she should be caught and put to death some hours afterwards by her father, who pursued her, he will be considered to have killed her immediately.

25 Macer, Public Prosecutions, Book I. A husband is also permitted to kill a man who commits adultery with his wife, but not everyone without distinction, as the father is; for it is provided by this law that the husband can kill the adulterer if he surprises him in his own house, but not if he surprises him in the house of his father-in-law; nor if he was formerly a pander; or had exercised the profession of a mountebank, by dancing or singing on the stage; or had been convicted in a criminal prosecution and not been restored to his civil rights; or is the freedman of the husband or the wife, or of the father or mother, or of the son or the daughter of any of them; nor does it make any difference whether he belonged exclusively to one of the persons above mentioned, or owed services to two patrons in common, or was a slave. 1It is also provided that a husband who has killed any one of these must dismiss his wife without delay. 2It is held by many authorities to make no difference whether the husband is his own master, or a son under paternal control. 3With reference to both parties, the question arises, in accordance with the spirit of the law, whether the father can kill a magistrate; and also where his daughter is of bad reputation, or has been illegally married, whether the father or the husband will still retain his right; and what should be done if the husband is a pander, or is branded with ignominy for some reason or other. It may properly be held that those have a right to kill who can bring an accusation as a father or a husband.

26 Ulpianus, On the Julian Law Relating to Adultery, Book II. It is provided as follows in the Fifth Section of the Julian Law: “That where a husband has surprised an adulterer with his wife, and is either unwilling or unable to kill him, he can hold him for not more than twenty consecutive hours of the day and night, in order to obtain evidence of the crime, and make use of his right without endangering it.” 1I think that what has been stated with reference to the husband should be observed, so far as the father is concerned. 2Even if the husband should not surprise the adulterer in his house, he can hold him. 3Where, however, the adulterer is immediately released, he cannot be brought back. 4What must be done if he escapes; can he be brought back and kept under guard for twenty hours? I think that it is better to hold that he can be brought back and guarded for the purpose of obtaining evidence. 5The following clause, “In order to obtain evidence of the crime,” means that he can introduce witnesses who will afterwards testify that the offender was taken in adultery.

27 The Same, Disputations, Book III. A woman cannot be accused of adultery during marriage by anyone who, in addition to the husband, is permitted to bring the accusation; for a stranger should not annoy a wife who is approved by her husband, and disturb a quiet marriage, unless he has previously accused the husband of being a pander. 1When, however, the charge has been abandoned by the husband, it is proper for it to be prosecuted by another.

28 The Same, On Adultery, Book III. When an accuser demands that a slave charged with adultery shall be put to torture, whether he himself intends to be present or not, the judges shall order the slave to be appraised; and when this has been done, they must direct that he who has denounced the slave as guilty shall pay the amount of the appraisement, and as much more, to the party interested. 1Let us, however, consider to whom this penalty should be paid, as the law mentions the party in interest. Thus, a bona fide purchaser is such a person; and although he may have bought the slave from one who is not his owner, we can properly say that he is the party in interest. 2We will do well to include in the same category one who has received property in pledge; because it is to his interest that the torture should not take place. 3When, however, the usufruct of the slave belongs to another, his appraised value should be divided between the owner and the usufructuary. 4If the slave is owned in common by several persons, his estimated value should be divided among them. 5When a freeman, supposed to be a slave, is tortured for the reason that he himself is ignorant of his condition, Cæcilius is of the opinion that he is entitled to a prætorian action against the person who falsely accused him, in order that he may not go unpunished for having subjected a freeman to torture, just as if he had been a slave. 6The law directs that torture shall be applied to the male or female slaves of the man or woman complained of, or to those of the parents of either of them; if the said slaves have been given to the accused by his or her parents for their own use. The Divine Hadrian stated in a Rescript addressed to Cornelius Latianus that the slaves of strangers should be tortured. 7The man and woman who are accused, their patrons, and the person who has brought the accusation, are ordered to be present at the torture, and the power of questioning is granted to the patrons. 8It is still more advisable that a slave in whom the accused person had the usufruct should be tortured, for although he was not actually his slave, he is still considered to have been in servitude; for in everything relating to torture the question of ownership is not so much involved as the fact of the service. 9Therefore, if a slave belonging to another serves the accused in good faith, anyone will admit that he can be interrogated while undergoing torture. 10Where, however, the slave is one who is entitled to his freedom under the terms of a trust, or who expects to be free on compliance with a condition, the better opinion is that he can be tortured. 11The law directs that slaves who have been put to the torture in this manner shall become public property; hence we confiscate a part of a slave owned in common, and the mere ownership of one in whom another enjoys the usufruct; and where the accused has only the usufruct, the better opinion is that the enjoyment of the usufruct begins to belong to the government; but we do not confiscate a slave who is the property of another. The reason for the confiscation of slaves is that they may tell the truth without fear; while, if they were apprehensive of again being brought under the power of the accused persons, they might become obdurate under torture. 12They are not, however, confiscated before being subjected to torture. 13Even if they should deny everything, they will, nevertheless, be confiscated. The reason for this is the same, as well as to prevent them from entertaining the hope of again coming under the control of their masters, if they should make denials with the expectation of being rewarded for perseverence in uttering falsehoods. 14Even the slaves of the accuser are confiscated, if they are put to the torture. For slaves of this kind should be taken from their masters to prevent them from lying, but those of strangers have no one to please. 15When the accused party of either sex is acquitted, the law provides that, if the slaves should die, the loss shall be estimated by the judges, according to what they were worth before being tortured; and if they live, to an amount in proportion to the damage caused or inflicted upon them. 16It must be noted that it is provided by the Ninth Section, when a slave is charged with adultery, and the accuser does not wish him to be put to torture, the law orders double his value to be paid to his master; but this is simple damages.

29 Marcianus, On Public Prosecutions, Book I. Anything which may be due in these different cases can be recovered by a personal action derived from the law.

30 Ulpianus, On Adultery, Book IV. The law punishes the pandering of a husband who retains his wife, after she has been surprised in adultery, and permits the adulterer to depart. For the husband should be angry against his wife who has violated her marriage vow, and he ought also to be punished when he cannot excuse his ignorance, or conceal his indifference under the pretext that his information is incredible. Therefore, the law says he “shall permit the adulterer surprised in his house to depart,” because it wishes to punish the husband who caught her in such an infamous act. 1When the law says that anyone who marries a woman who has been convicted of adultery shall be legally liable, let us see whether this refers to fornication? The better opinion is that it does, for if the woman was condemned for any other reason under that law she could be married with impunity. 2He also is punished who accepts money on account of the fornication which he detected, and it does not make any difference whether the husband himself or someone else receives it, for he who accepts compensation for concealing his knowledge of fornication should be punished. The law, however, does not apply to him who keeps the secret gratuitously. 3Anyone who has pecuniarily profited by the adultery of his wife shall be punished; for he who acts as his wife’s pander does not commit a trivial offence. 4A man who receives anything in consideration of the adultery of his wife is held to have received it in order that she might commit adultery; and whether he has obtained it frequently or only once, he ought not to be exempt from punishment. He is correctly said to have profited by the adultery of his wife, who accepts something in order that she may be permitted to be debauched, as prostitutes are. Where, however, he permits his wife to commit the offence, not on account of gain, but through negligence, his own fault, or a certain degree of indifference, or excessive credulity, he is considered to have been placed outside the law. 5The division of the six months is made as follows: in the case of a married woman, the time is computed from the day of the divorce; in the case of a widow, from the day when the offence was committed. This seems to be indicated by a rescript addressed to the Consuls Tertyllus and Maximus. Moreover, if sixty days have elapsed since the divorce, and the term of five years has passed since the day when the crime was perpetrated, it must be said that the woman cannot be accused; so that when six available months are granted, this should be understood to mean that the accusation, having been extinguished by the uninterrupted period of five years, cannot be renewed. 6The legislator intended that this term of five years should be observed, when either of the defendants was accused of fornication, adultery, or pandering. Therefore what ought to be done if another crime derived from the Julian Law should be pleaded as a defence, as in the case of those who lend their houses for the purpose of fornication, and of others like them? The better opinion is, that all of the offences included in the Julian Law are prescribed after the lapse of five years. 7Moreover, the five years must be reckoned from the day when the crime was committed to the one on which the party was prosecuted, and not to that on which the judgment for adultery was carried into execution. 8It was also added in the Decree of the Senate that if several persons should prosecute the same defendant, reference must be had to the date of the information of the one who persevered in the prosecution; so that he who brings the accusation may rely upon his own information, and not on those of the others. 9There is no doubt that anyone who has committed fornication by means of force employed against the man or woman in question can be prosecuted without reference to the above-mentioned term of five years; for there is no doubt that he has committed a criminal act of violence.

31 Paulus, On Adultery, Book I. A father cannot prosecute, without exposing himself to the risk of a false accusation. 1The sixty days are computed from the time of the divorce, and in the sixty the sixtieth is itself included.

32 The Same, On Adultery, Book II. The term of five years should be reckoned continuously, and not merely by computing the available days. But what course must be pursued if the woman was accused first, and, as the adulterer could not be prosecuted at the same time, the case having been protracted for an extended period, the term of five years should expire? What if he who began the prosecution within five years did not carry it to a conclusion, or was guilty of prevarication, and another should desire to proceed after the five years have elapsed? It is just to deduct from the five years the time which was consumed by the preceding prosecution.

33 Macer, On Public Prosecutions, Book I. It makes no difference whether the father kills his daughter surprised in adultery first, or not, provided he kills both guilty parties; for if he kills only one of them, he will be liable under the Cornelian Law. If, however, one of them should be killed, and the other wounded, he is not released under the terms of the law; but the Divine Marcus and Commodus stated in a Rescript that he ought to be granted impunity, for the reason that, although the adulterer was killed, and the woman survived, after having received serious wounds inflicted upon her by her father, she was saved rather by accident, than intentionally; because the law requires the same indignation and the same severity to be displayed toward all those who are taken in adultery. 1Where a husband has selected one of two culprits who have been guilty of adultery, he cannot accuse the other before the first case is terminated; because two persons cannot be accused by the same individual at the same time. Still, the prosecutor, while proceeding against the adulterer or the adulteress, is not prevented from also accusing anyone who lent his house for the purpose, or advised that the charge be suppressed by the payment of money.

34 Marcianus, Public Prosecutions, Book I. Where anyone alleges that adultery has been committed by his slave, with a woman whom he had for his wife, the Divine Pius stated in a Rescript that he must accuse the woman before subjecting his slave to torture to her prejudice. 1If anyone should not let an adulterer depart, but detains him, as, for instance, his son, accused of adultery with his stepmother, or his freedman, or slave accused with his wife, he is guilty, according to the spirit, but not according to the letter of the law. The woman, however, who is detained, shall be punished. If, however, having driven her away, he should bring her back, he is not guilty according to strict construction of the law, but he must still be considered liable in order to avoid the commission of fraud. 2If a woman receives the price of adultery committed by her husband, she will be punishable as an adulteress under the Julian Law.

35 Modestinus, Rules, Book I. He is guilty of fornication who keeps a free woman for the purpose of cohabiting with her, but not with the intention of marrying her, excepting, of course, a concubine. 1Adultery is committed with a married woman; fornication with a widow, a virgin, or a boy.

36 The Same, Rules, Book VIII. He who desires to bring an accusation of adultery, and makes a mistake in the information, is not forbidden to correct it; provided that the time has not passed by which the right to proceed is extinguished.

37 Papinianus, Questions, Book III. When a minor is guilty of adultery, he will be liable under the Julian Law, because a crime of this kind can be committed after puberty.

38 The Same, Questions, Book V. It has been decided that a son under paternal control can, without the consent of his father, accuse his wife of adultery in a public action, for he avenges his own suffering.

39 The Same, Questions, Book XXXII. If adultery is committed at the same time as incest, for instance, with a stepdaughter, a daughter-in-law, or a stepmother, the woman shall also be punished, for this will take place even where adultery was not committed. 1When fornication is committed with the daughter of a sister, should it not be considered whether the penalty of adultery will be sufficient for the husband? It happens, in the present instance, that a double crime has been perpetrated, because there is a great deal of difference where an unlawful marriage is contracted by mistake, and where contempt of the law and insult to blood are combined. 2Wherefore, the woman must undergo the same penalty as the man, when she has committed incest prohibited by the Law of Nations; for if only the observation of our law is involved, she will not be liable for the crime of incest. 3Sometimes, however, in the case of males, the crime of incest, although more serious in its nature, is ordinarily treated less severely than that of adultery; provided the incest has been committed through an illegal marriage. 4Finally, the Imperial Brothers released Claudia from responsibility for the crime of incest, on account of her age, but they directed that the unlawful tie should be severed; although, otherwise, the crime of adultery, when committed after puberty, is not excusable on account of age. For it is stated above that women who are mistaken with reference to the law are not liable for the crime of incest; but when they commit adultery they can have no excuse. 5The same Emperors stated in a Rescript that after a divorce which a stepson obtained in good faith from his stepmother, the accusation of incest should not be admitted. 6They also stated in a Rescript to Pollio: “Incestuous marriages are not usually confirmed, and therefore if a person withdraws from such a marriage, we will remit the penalty of the past offence, if the guilty party has not yet been prosecuted.” 7Moreover, incest committed by means of an unlawful marriage is ordinarily excused on account of sex or age, or even after separation, if it takes place in good faith, and a mistake is alleged; and the more readily if no one appears to prosecute. 8The Emperor Marcus Antoninus and his Son Commodus stated in a Rescript that if a husband, impelled by the violence of his grief, kills his wife surprised in adultery, he will not be liable to the penalty imposed on assassins by the Cornelian Law; for the Divine Pius made the following statements in a Rescript addressed to Appollonius: “If anyone does not deny that he has killed his wife, taken in adultery, he may be excused from suffering the extreme penalty, as it is very difficult to restrain justifiable grief; but because he has done more than he should to revenge himself, he must be punished. Therefore, if he is of inferior rank, it will be sufficient for him to be sentenced to hard labor for life; and if he is of superior station, he shall be relegated to an island.” 9A freedman is not readily permitted to attack the reputation of his patron, but he should be permitted to do so if he desires to accuse him of adultery by the right of a husband, just as if he had suffered some other atrocious injury. Where, however, the patron is of the number of those who, if surprised in the commission of this crime, can be killed by another, and if he is caught committing adultery with his wife, it should be considered whether the freedman can kill him with impunity. This seems to us to be rather hard, for reputation, much more than life, should be respected. 10Anyone who occupies a position of honor, or an office in the public service, can be prosecuted, but the accusation will be postponed; and if he furnishes a surety to appear, the case will be deferred until the expiration of his term of office. This was stated by Tiberius Cæsar in a Rescript.

40 The Same, Opinions, Book XV. The decision of the Governor of a province was that a certain woman had been violated. I held that she was not liable under the Julian Law relating to Adultery; although, for the purpose of protecting her modesty, she was prevented from immediately informing her husband of the injury which she had sustained. 1Even after the woman has married a second time, although her first husband may not have been prosecuted as her pander, the charge of adultery can be brought against the adulterer by a stranger. 2Even if the woman should die during marriage, her husband has a right to prosecute the adulterer. 3A woman who was married before the person who committed adultery with her has been convicted cannot be prosecuted for this offence, if notice was not served upon her at the wedding, or at her residence. 4I gave it as my opinion that a woman who has been exiled on account of her association with robbers could be retained in marriage without the fear of incurring a penalty, because she was not convicted of adultery. 5The crime of incest, joined with adultery, is not prescribed after the lapse of five years. 6It is settled that two persons, the man and the woman, cannot lawfully be prosecuted for adultery at the same time, even by the husband; but when both of them have been accused at once by someone who subsequently wished to desist, I hold that an acquittal will be necessary in the case of both parties. 7A common accusation for incest can be brought against two persons at the same time. 8I gave it as my opinion that where two masters were accused of incest, their slaves could only be put to the torture where the incest was alleged to have been committed by adultery.

41 Paulus, Opinions, Book XIX. The question was asked whether a woman, whose husband had threatened to accuse her of the crime of adultery, but had not done so either in the capacity of husband or under the common law, could marry the man whom he had indicated as being guilty of adultery? Paulus answered that in the case in question there was nothing to prevent her from marrying the man whom her husband had suspected. 1It was likewise asked whether the same husband should be considered to have desisted, or to have acted as a pander, if he afterwards took back the same wife? Paulus answered that he who took back the same wife, after having brought an accusation of adultery against her, was considered to have desisted; and hence, under the same law, he had no longer the right to accuse her.

42 The Same, Sentences, Book I. No delay should be granted in an accusation of adultery, unless to compel the appearance of the persons in court; or where the judge, induced by the circumstances of the case, permits it, after proper cause has been shown.

43 Tryphoninus, Disputations, Book II. If he who has obtained the right to wear a gold ring should commit adultery with the wife of his patron; or with his patroness; or with the wife of him, or of the father of him from whom he obtained his freedom; or with the mother, or the son’s wife; or with the daughter of any of these persons, shall he be punished as a freedman? And if he is surprised in adultery, can he be killed with impunity? I am inclined to think that he should be subjected to the penalty imposed upon freedmen; because, by the Julian Law for the suppression of Adultery, and with a view to the protection of marriage, it is settled that they should be considered as freedmen; and, as the result of this advantage, the case of patrons should not be rendered any worse.

44 Gaius, On the Law of the Twelve Tables, Book III. If the notice of repudiation was not served in accordance with law, and therefore the woman is still considered to be married; yet, if anyone takes her as his wife, he will not be an adulterer. Salvius Julianus was the author of this opinion; because, as he says, adultery cannot be committed without malicious contrivance. It should, however, be held that he is guilty of malicious contrivance who knew that she had not been legally repudiated.

45 Papinianus, Opinions, Book IV. If his mother-in-law is dead, a son-in-law can be prosecuted for incest with her, just as an adulterer can be prosecuted after the death of the woman.