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Legal Status in the Roman World


125. Adultery (Digest 48.5.1; 48.5.2.2, 8; 48.5.9; 48.5.11; 48.5.12.8-9, 12-13; 48.5.20. L)

48.5.1 (Ulpian, On Adultery, book 1) The Julian law on adultery was introduced by the divine Augustus ...

48.5.2 (Ulpian, Disputations, book 8) (2) The crime of pimping is included in the Julian law of adultery, as a penalty has been preserved 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.

(8) If 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? 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 ...

48.5.9 (Papinian [21]) Anyone who knowingly lends his house to enable unlawful sexual intercourse 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 ...

48.5.11 (Papinian, On Adultery, book 2) (pr.) A matron [22] means not only a married woman but also a widow. (1) Women who lend their houses, or have received any compensation for (revealing) unlawful intercourse which they know, are also liable under this section of the law. (2) A woman who gratuitously acts as a procuress 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.

48.5.12 (Papinian, Adultery, sole book) (8) A woman, prosecuted for adultery after the death of her husband, (9) asks for delay on account of the youth of her son. 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 necessarily prejudice the child, since she herself may be an adulteress, and the child still have the deceased for his father.

(12) A 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 both law and of fact; for if a long time had elapsed without any proof of unlawful sexual intercourse having been made, and the woman, having been induced by false rumours, 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.

(13) I 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 rupture. 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 divorce. Therefore, the law will be applied just as if a divorce had taken place through the fault of the woman.

48.5.20 (Ulpian, Lex Julia on Adultery, book 2) (3) If the adulterer should be acquitted, a married woman cannot be accused, either by the person who prosecuted the adulterer and was defeated, or even by another. So also if the accuser agrees with the adulterer through collusion and the adulterer is acquitted, he has given to the married woman immunity against all other accusers. She can be accused if she should cease to be married, for the law only protects a woman as long as she is married.


Notes

21. Aemilius Papinianus, Papinian, had a career in the imperial bureaucracy. In A.D. 198 he took over the office a libellis (for Petitions) under Septimius Severus (A.D. 193-211) and Caracalla (A.D. 211-217). He was Praetorian Prefect from 205 to 211 with Paul and Ulpian acting as his clerks. He was executed in 212, perhaps in the aftermath of Caracalla's murder of his brother Geta.

22. 'A matron, materfamilias, is a decent or respectable free woman, whether married or a mother or widowed or not,' Honoré, 1991.