[IDEM libro singulari de adulteriis. ] §48.5.12.prMiles, qui cum adultero uxoris suae pactus est, solui sacramento deportarique debet.
[BY THE SAME AUTHOR, in the single book On Adultery.] A soldier who has made an agreement with the adulterer of his wife must be released from his military oath and deported.
§48.5.12.1Militem, qui sororis filiam in contubernio habuit, licet non in matrimonium, adulterii poena teneri rectius dicetur.
It will be more correctly said that a soldier who has kept his sister's daughter in a domestic partnership, though not in marriage, is liable to the penalty for adultery.
§48.5.12.2Ea, quae inter reas adulterii recepta esset, absens defendi non potest.
A woman who has been registered among those accused of adultery cannot be defended in her absence.
§48.5.12.3Socer cum nurum adulterii accusaturum se libellis praesidi datis testatus fuisset, maluit accusatione desistere et lucrum ex dote magis petere.
A father-in-law, although he had declared by petitions presented to the governor that he would accuse his daughter-in-law of adultery, preferred to desist from the accusation and rather to seek a profit from her dowry.
quaeritur, an huiusmodi commentum eius admitti existimes.
The question is asked whether you think that a device of this kind on his part should be admitted.
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 uindictae domus suae praeponere non erubuit.
He answered: It is a most disgraceful example that he who had begun to accuse his daughter-in-law later preferred to desist, content to retain the profit from the dowry as if the marriage had been dissolved through the woman's fault. Therefore, he will not be unjustly repelled who did not blush to prefer the advantage of a dowry to the avenging of his own house.
§48.5.12.4Adulterii reum intra quinque annos continuos a die criminis admissi defuncta quoque muliere postulari posse palam est.
It is clear that a person accused of adultery can be prosecuted within five continuous years from the day the crime was committed, even if the woman is deceased.
§48.5.12.5Quidam accusare uolebat adulterii mulierem et postulabat, ne sibi computarentur dies, quos in custodiam fecisset: me hoc admittente exstitit qui mihi contradiceret.
A certain person wished to accuse a woman of adultery and requested that the days which he had spent in custody should not be counted against him. While I was admitting this, someone appeared who contradicted me.
cuius opinionem an tu probes, rogo maturius mihi scribas.
I ask that you write to me as soon as possible whether you approve of his opinion.
respondit: opinionem tuam et uerba legis et sententia adiuuant, cui placuit utiles dies accusatori computandos esse, id est quibus potuit accusationis sollemnia implere.
He answered: Both the words of the law and its intention support your opinion, for it was pleased that available days should be computed for the accuser, that is, those on which he was able to complete the formalities of the accusation.
quare sine dubio dies, quibus quis in custodia fuit, extra computationem utilium dierum existimanti tibi constitutos contradici non debuit.
Therefore, without doubt, it ought not to have been contradicted when you decided that the days on which someone was in custody are established outside the computation of available days.
§48.5.12.6Sexaginta 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.
It is certain that the sixty days which are computed as available days for a husband who accuses are counted also on holidays, provided only the accuser had the opportunity of approaching the governor, since a petition can also be presented informally.
quod priuilegium si amisit, non prohibetur intra alios quattuor menses querellam suam apud iudicem deferre.
If he has lost this privilege, he is not prohibited from bringing his complaint before the judge within another four months.
§48.5.12.7Quaerebatur, an iure mariti possit accusare uir eam feminam, quae, cum ei desponsa fuisset, alii in matrimonium a patre fuisset tradita.
The question was asked whether a man, by the right of a husband, could accuse a woman who, although she had been betrothed to him, had been given in marriage to another by her father.
respondit: nouam 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.
He answered: I think that an accuser of this kind, who desires to charge the crime of adultery solely because a girl previously betrothed to him was given in marriage to another by her father, is attempting to establish a novel precedent.
§48.5.12.8Defuncto marito adulterii rea mulier postulatur, quae propter impuberem filium uult dilationem ab accusatore impetrare: an debeat audiri? respondi: non uidetur 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.
After the death of her husband, a woman accused of adultery is prosecuted, and she wishes to obtain a postponement from the accuser on account of her underaged son; should she be heard? I answered: A woman who puts forward the age of her son to evade a lawful accusation does not seem to me to resort to a just defense. For the crime of adultery charged against the woman does not necessarily prejudice the infant, since she could both be an adulteress and the minor could have had the deceased as his father.
§48.5.12.10Uolenti mihi ream adulterii postulare eam, quae post commissum adulterium in eodem matrimonio perseuerauerit, contradictum est.
Objection was made to me when I wished to prosecute as accused of adultery a woman who, after the adultery was committed, continued in the same marriage.
quaero, an iuste responsum sit.
I ask whether the objection was justly made.
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.
He answered: You ought not to have been ignorant of the fact that, while that marriage lasts in which the adultery is said to have been committed, the woman cannot be made a defendant of adultery, nor can the male adulterer be accused in the meantime.
§48.5.12.11Licet ei mulier, qui in suspicionem adulterii incidit, nupsisse dicatur, non ante accusari poterit, quam adulter fuerit conuictus: alioquin ad hoc uel maxime uiri confugient uolentes bene concordatum sequens matrimonium dirimere, ut dicant cum adultero mulierem nuptias contraxisse.
Although a woman who has fallen under suspicion of adultery is said to have married him, she cannot be accused before the male adulterer has been convicted. Otherwise, husbands wishing to dissolve a subsequent, well-harmonized marriage will resort to this above all, namely, to say that the woman has contracted a marriage with her adulterer.
§48.5.12.12Mulier cum absentem uirum audisset uita functum esse, alii se iunxit: mox maritus reuersus est.
A woman, having heard that her absent husband had departed this life, joined herself to another; soon afterward, the husband returned.
quaero, quid aduersus eam mulierem statuendum sit.
I ask what should be decided against that woman.
respondit tam iuris quam facti quaestionem moueri: nam si longo tempore transacto sine ullius stupri probatione falsis rumoribus inducta, quasi soluta priore uinculo, legitimis nuptiis secundis iuncta est, quod uerisimile est deceptam eam fuisse nihil uindicta dignum uideri potest: quod si ficta mariti mors argumentum faciendis nuptiis babitur praestitisse, cum hoc facto pudicitia laboretur, uindicari debet pro admissi criminis qualitate.
He answered that a question of both law and fact is raised. For if, after a long time had elapsed, without any proof of illicit intercourse, she was led by false rumors and joined in a lawful second marriage as if released from her prior bond, since it is probable that she was deceived, nothing seems worthy of punishment. But if a fabricated death of the husband is shown to have provided a pretext for contracting the marriage, since chastity is violated by this act, she must be punished according to the quality of the crime committed.
§48.5.12.13Ream adulterii uxorem duxi: eam damnatam mox repudiaui.
I married a woman accused of adultery, and as soon as she was condemned, I divorced her.
quaero, an causam discidii praestitisse uideor.
I ask whether I seem to have provided the cause for the separation.
respondit: cum per legem Iuliam huiusmodi uxorem retinere prohibearis, non uideri causam te discidii praestitisse palam est.
He answered: Since under the Julian law you are prohibited from retaining a wife of this kind, it is clear that you do not seem to have provided the cause for the separation.
quare ita ius tractabitur quasi culpa mulieris facto diuortio.
Therefore, the law will be applied just as if the divorce had been made through the fault of the woman.