De adulteriis libri
Ex libro singulari
Dig. 22,5,14Idem libro singulari de adulteriis. Scio quidem tractatum esse, an ad testamentum faciendum adhiberi possit adulterii damnatus: et sane iuste testimonii officio ei interdicetur. existimo ergo neque iure civili testamentum valere, ad quod huiusmodi testis processit, neque iure praetorio, quod ius civile subsequitur, ut neque hereditas adiri neque bonorum possessio dari possit.
The Same, On Adultery. I am aware that it has also been discussed whether one who has been convicted of adultery can give evidence for the purpose of proving a will; and it is clear that he is justly forbidden from testifying in court. Therefore I think that a will which must be proved by a witness of this kind is not valid, either by the Civil Law, or by the Prætorian Law which follows it; so that neither an estate can be entered upon, nor the possession of the property of the deceased be granted on such testimony.
Dig. 48,5,12Idem libro singulari de adulteris. Miles, qui cum adultero uxoris suae pactus est, solvi sacramento deportarique debet. 1Militem, qui sororis filiam in contubernio habuit, licet non in matrimonium, adulterii poena teneri rectius dicetur. 2Ea, quae inter reas adulterii recepta esset, absens defendi non potest. 3Socer cum nurum adulterii accusaturum se libellis praesidi datis testatus fuisset, maluit accusatione desistere et lucrum ex dote magis petere. quaeritur, an huiusmodi commentum eius admitti existimes. respondit: turpissimo exemplo is, qui nurum suam accusare instituisset, postea desistere maluit contentus lucrum ex dote retinere tamquam culpa mulieris dirempto matrimonio: quare non inique repelletur, qui commodum dotis vindictae domus suae praeponere non erubuit. 4Adulterii reum intra quinque annos continuos a die criminis admissi defuncta quoque muliere postulari posse palam est. 5Quidam accusare volebat adulterii mulierem et postulabat, ne sibi computarentur dies, quos in custodiam fecisset: me hoc admittente exstitit qui mihi contradiceret. cuius opinionem an tu probes, rogo maturius mihi scribas. respondit: opinionem tuam et verba legis et sententia adiuvant, cui placuit utiles dies accusatori computandos esse, id est quibus potuit accusationis sollemnia implere. quare sine dubio dies, quibus quis in custodia fuit, extra computationem utilium dierum existimanti tibi constitutos contradici non debuit. 6Sexaginta dies, qui marito accusanti utiles computantur, feriatis quoque diebus, si modo facultatem praesidis adeundi accusator habuit, numerari certum est, quoniam de plano quoque libellus dari potest. quod privilegium si amisit, non prohibetur intra alios quattuor menses querellam suam apud iudicem deferre. 7Quaerebatur, an iure mariti possit accusare vir eam feminam, quae, cum ei desponsa fuisset, alii in matrimonium a patre fuisset tradita. respondit: novam rem instituere huiusmodi accusatorem existimo, qui adulterii crimen obicere desiderat propter hoc tantum, quod priori sibi desponsa puella a patre in matrimonium alii fuerit tradita. 8Defuncto marito adulterii rea mulier postulatur, 9quae propter impuberem filium vult dilationem ab accusatore impetrare: an debeat audiri? respondi: non videtur mihi confugere ea mulier ad iustam defensionem, quae aetatem filii praetendit ad eludendam legitimam accusationem: nam non utique crimen adulterii, quod mulieri obicitur, infanti praeiudicat, cum possit et illa adultera esse et impubes defunctum patrem habuisse. 10Volenti mihi ream adulterii postulare eam, quae post commissum adulterium in eodem matrimonio perseveraverit, contradictum est. quaero, an iuste responsum sit. respondit: ignorare non debuisti durante eo matrimonio, in quo adulterium dicitur esse commissum, non posse mulierem ream adulterii fieri: sed nec adulterum interim accusari posse. 11Licet ei mulier, qui in suspicionem adulterii incidit, nupsisse dicatur, non ante accusari poterit, quam adulter fuerit convictus: alioquin ad hoc vel maxime viri confugient volentes bene concordatum sequens matrimonium dirimere, ut dicant cum adultero mulierem nuptias contraxisse. 12Mulier cum absentem virum audisset vita functum esse, alii se iunxit: mox maritus reversus est. quaero, quid adversus eam mulierem statuendum sit. respondit tam iuris quam facti quaestionem moveri: nam si longo tempore transacto sine ullius stupri probatione falsis rumoribus inducta, quasi soluta priore vinculo, legitimis nuptiis secundis iuncta est, quod verisimile est deceptam eam fuisse nihil vindicta dignum videri potest: quod si ficta mariti mors argumentum faciendis nuptiis probabitur praestitisse, cum hoc facto pudicitia laboretur, vindicari debet pro admissi criminis qualitate. 13Ream adulterii uxorem duxi: eam damnatam mox repudiavi. quaero, an causam discidii praestitisse videor. respondit: cum per legem Iuliam huiusmodi uxorem retinere prohibearis, non videri causam te discidii praestitisse palam est. quare ita ius tractabitur quasi culpa mulieris facto divortio.
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.
Dig. 48,16,11Idem libro singulari de adulteris. Quaerebatur, an hi, qui ab accusatione tempore exclusi essent, in senatus consultum Turpillianum inciderunt. respondit non oportere dubitari calumnia non puniri eos, qui praescriptione temporis exclusi causam adulterii perferre non potuerunt.
The Same, On Adultery. The question was asked whether those who had been excluded from bringing an accusation by lapse of time come within the scope of the Turpillian Decree of the Senate. The answer was that there is no doubt that persons who are prevented by prescription from bringing a charge of adultery can be punished for calumny.