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

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.

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.

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.

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.

Ulpianus, On Adultery, Book I. A father cannot kill his son without his having been heard; but he should accuse him before the Prefect or the Governor of the province.

Ulpianus, On Adultery, Book I. The penalty for peculation originally was the interdiction of water and fire, for which, at present, deportation has been substituted. Moreover, anyone who is placed in this position loses not only all his former rights but also his property.

Ulpianus, On Adultery, Book I. We call those persons prevaricators who assist the cause of their adversaries, and while on the side of the plaintiff favor that of the defendant; for the term “prevaricator” is derived from the verb “varico,” to straddle.

Ulpianus, On Adultery, Book II. A man who has been condemned in a criminal prosecution has no right to accuse anyone himself, unless, under the terms of the decision he is authorized to institute criminal proceedings for the death of his children or his patrons, or the loss of his own property. The right of accusation is also taken away from those who have been rendered infamous on account of malicious prosecution, as well as from those who have entered the arena for the purpose of contending with wild beasts, or who follow the profession of buffoons, or keep women for prostitution, or have been convicted of prevarication or calumny, or of having received money in consideration of their accusing anyone, or injuring his business.

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.

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.

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.

Ulpianus, On Adultery, Book II. Where a public dismissal of a criminal case has occurred under the Decree of the Senate, as ordinarily happens; or on account of some public rejoicing; or to honor the Imperial House; or for some reason for. which the Senate decreed that the defendants should be discharged, and the accuser did not renew the accusation within the prescribed time, it must be said that the Turpillian Decree of the Senate does not apply, for he is not held to desist who does not accuse a person that is exempt from criminal liability. He, however, becomes exempt from prosecution by the discharge of the defendants.

The Same, On Adultery, Book III. The actions for embezzlement and the exploitation of estates include an accusation, but they are not criminal prosecutions.

The Same, On Adultery, Book III. There is no doubt that slaves can also be accused of adultery. Those, however, who are forbidden to accuse freemen of adultery are themselves forbidden to accuse slaves. A master, however, can, under a Rescript of the Divine Marcus, bring an accusation against his own slave for this offence. Therefore, since the promulgation of this rescript, the master is obliged to accuse his slave, but if his wife is legally married she can plead an exception in bar.

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.

Ulpianus, On Adultery, Book III. The judges must determine the measure of torture, and therefore it should be inflicted in such a way that the slave may be preserved either for his acquittal, or his punishment.

Ulpianus, On Adultery, Book V. The legislator had in view that slaves should not by manumission be released from liability to torture; and therefore he forbade them to be manumitted, and prescribed a certain term within which it would not be lawful to set them free. 1Therefore, a woman who is separated from her husband is forbidden, under any circumstances, to manumit or alienate any of her slaves, because in the words of the law, “She cannot either manumit or alienate a slave who was not employed in her personal service, or on her land, or in the province,” which is, to a certain extent, a hardship, but it is the law. 2And even if the woman, after a divorce, purchases a slave, or obtains one in any way, she cannot manumit him under the provisions of the law. Sextus Cæcilius also mentions this. 3A father, however, whose daughter is under his control, is only forbidden to manumit or alienate such slaves as have been given to his daughter for her personal service. 4The law also prohibits a mother from manumitting or alienating any slaves which she has given for the service of her daughter. 5It also forbids a grandfather and grandmother fo manumit their slaves, as the intention of the law is that they also may be subjected to torture. 6Sextus Cæcilius very properly holds that the time prescribed by the law for alienating or manumitting slaves is too short. For he says, suppose a woman has been accused of adultery within the sixty days; how can the trial for adultery readily take place, so as to be concluded within the said sixty days? Still, according to the terms of the law the woman, even though she has been accused of adultery, is permitted, after this time, to manumit the slave who is suspected of having committed adultery with her, or another slave who should be put to torture. And, indeed, relief should be granted in this instance, so that slaves wlio are indicated as guilty, or who have knowledge of the crime, may not be manumitted before the trial is ended. 7If the father or mother of the woman should die within the sixty days, they can neither manumit nor alienate any of the slaves whom they have given to the daughter for her personal service.

Ulpianus, On Adultery, Book IV. If a husband should die within the sixty days, let us see whether the woman can manumit or alienate the slaves above referred to. I do not think that she can do so, although she may have no other accuser than her husband, as the father of the latter can accuse her. 1The law simply prohibits a woman from manumitting her slaves within sixty days after the divorce. 2Manumission is also prohibited whether she is divorced or repudiated. 3If the marriage is dissolved by the death of the husband, or on account of any penalty to which he has rendered himself liable, manumission will not be prevented. 4Even if the marriage is terminated by agreement, it is held that manumission or alienation is not prevented. 5When the woman, during the existence of the marriage but while she is contemplating divorce, manumits or alienates a slave, and this is established by conclusive evidence, the alienation or manumission will not be valid, as having been done to evade the law. 6We must understand every kind of alienation to be meant.

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.

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.

Ulpianus, On Adultery, Book V. If a husband should be reduced to slavery, cannot his owner alienate his land? I think the better opinion is that he cannot. Wherefore, if the property of the husband should be confiscated, the sale of the land would, nevertheless, be prevented; even though the Treasury is always held to be a good and solvent successor.

The Same, On Adultery, Book V. Freedom from a servitude due to an urban estate subject to dowry cannot be granted by the husband, for fear that by this the condition of the property may be deteriorated.

Ulpianus, On Adultery, Book V. We should understand dotal land to include both that situated in town and country, for the Lex Julia had reference to every kind of buildings. 1The term “land” also applies to a portion of the tract, hence, whether the entire tract has been given as dowry, or only a part of the same, it cannot be alienated. This is the law at present. 2We understand the term “dotal land” to refer to that of which the ownership is acquired by the husband, so that then only is he forbidden to alienate it. 3The same relief is granted by the law to the heir of the wife, as is granted to the wife herself. 4Where a wife is appointed heir to her husband, and the land belonging to the dowry is bequeathed, if, after the deduction of the legacy, the woman should have an amount of interest in the estate equal in value to the dowry, the legacy will be valid. The question arises whether it will be valid if the amount should be less. Scævola says that a portion can be recovered, if not all of it, if a certain amount is lacking to make up the dowry; and that only that much will remain in the hands of the woman which is required to supply the deficiency.