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.

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.

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.

Papinianus, On Adultery, Book I. I know that the question has arisen whether those who have been convicted of calumny in public trials can testify in a public prosecution. They are not, however, forbidden to do so by the Lex Remmia; and the Lex Julia relating to violence, extortion, and peculation, does not prohibit such persons from giving evidence, nevertheless, what is omitted by the laws should not be omitted by the conscientious judge, whose duty it is to carefully weigh the credibility of the witness and determine whether he gives his testimony as a man of integrity should do.

Papinianus, On Adultery, Book I. Even though the marriage should be dissolved, the land is still understood to be dotal. 1The consent of a father-in-law to the sale of land belonging to a dowry is of no force or effect.

Papinianus, On Adultery, Book I. Where one party who has given the other notice of divorce repents, and the other is ignorant of the change of mind, the marriage must be held to continue to exist; unless the one who received the notice and is aware of the change of mind, himself or herself desires to dissolve the marriage, for then it will be dissolved by the one who received the notice.

Papinianus, On Adultery, Book I. Where a creditor is accused of a crime, there is nothing to prevent the payment of money by his debtors; otherwise, many innocent persons would be deprived of the necessary means of defence.

Papinianus, On Adultery, Book I. Women are permitted to bring a public accusation for certain causes, for instance, if they do so on account of the death of any of those persons of either sex against whom they, if unwilling, can not be compelled to appear as witnesses, under the provisions of the law relating to public testimony. The Senate arrived at the same conclusion with reference to the Cornelian Law on Evidence. Women, however, are allowed to testify publicly in a criminal prosecution concerning the will of a freedman of their father or their mother. 1By the law relating to testaments, the right was conceded to wards, with the advice of their guardians, to institute a prosecution for the death of their father, just as a female ward is allowed to institute one for the death of her grandfather, since the Divine Vespasian permitted wards to bring suit with reference to the will of their father; but they could proceed by means of the interdict just as if the will had not been produced.

Papinianus, On Adultery, Book I. Where a slave is accused of a capital offence, it is provided by the law of criminal prosecutions that he must furnish security for his appearance in court, even though his surety be a stranger. If he is not defended in this way, he should be thrown into the public prison, so that he may defend himself while under restraint. 1Therefore, the question is usually discussed whether the master should afterwards, by giving security, be permitted to release his slave from confinement. The Edict of Domitian, by which it is provided that releases obtained under the Decree of the Senate are not applicable to slaves of this kind, increases the already existing doubt, for the law itself forbids him to be discharged before his case has been disposed of. This interpretation, which is somewhat hard, is too severe when applied to a slave whose master is absent, or who, through poverty, was at that time unable to furnish security. For it cannot be said that a slave is left without defence whose master is present, or is ready to defend him, but is too poor to do so. This can the more readily be admitted, if too long a time to find security has not been taken. 2Those who are required to appear in court on account of some other crime previously committed are not included in the number of accused persons, according to a Decree of the Senate. This rule is also observed in private cases, where the parties have given sureties, unless on this account a temporary action is in danger of being extinguished through lapse of time.

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.

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.

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.

Papinianus, On Adultery, Book II. Where a slave is accused he shall be put to torture, if this is demanded; and if he is acquitted, the accuser shall be condemned to pay his master double his value; and, in addition to double his value, an inquiry shall be made as to whether the prosecution was instituted for the purpose of annoyance, as the crime of illegal prosecution is separate from any loss which has been sustained by the master through the torture of the slave.

The Same, On Adultery, Book II. The Divine Hadrian exiled for the term of three years a man who, while on a journey, took the wife of another man to his house, from which she sent to her husband a notice of repudiation.

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.

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.

Papinianus, On Adultery, Book II. The dismissal of a criminal case is either made publicly on account of some memorable occasion, or because of some public rejoicing,

Papinianus, On Adultery, Book II. Or privately, at the request of the accuser. There is a third kind of dismissal made in accordance with law, that is, when the accuser dies, or is prevented by some good reason from bringing the accusation. 1When a dismissal is made in accordance with a public decree, the husband, in bringing the charge a second time, will not forfeit any of his rights. 2The Divine Hadrian stated that the thirty days prescribed for reviving an accusation should be understood to be available days, that is to say they should be computed from the date on which the festivals terminated. The Senate decreed that these days began at the time when anyone could resume the prosecution of the defendant. This time to revive the case does not begin to run except where the accuser can institute proceedings.

Papinianus, On Adultery, Book II. When a father or a husband brings an accusation of adultery, and a demand is made that the slaves of the party accused be put to the question, if an acquittal should result, after the case has been argued, and the witnesses produced, an estimate must be made of the value of the slaves who have died; but if a conviction should be obtained, the surviving slaves shall be confiscated. 1When the case is one involving a forged will, the slaves belonging to the estate can be tortured.

Papinianus, On Adultery, Book II. Every husband is always entitled to actions against the Treasury.