[IDEM libro secundo de adulteriis. ] §48.5.14.prSi uxor non fuerit in adulterio, concubina tamen fuit, iure quidem mariti accusare eam non poterit, quae uxor non fuit, iure tamen extranei accusationem instituere non prohibebitur, si modo ea sit, quae in concubinatum se dando matronae nomen non amisit, ut puta quae patroni concubina fuit.
[THE SAME, in the second book On Adultery.] If the woman was not a wife at the time of the adultery, but was nevertheless a concubine, she cannot indeed be accused under the right of a husband, since she was not a wife; however, he will not be prohibited from instituting an accusation under the right of a stranger, provided she is one who, by giving herself into concubinage, did not lose the name of a matron, as for example, one who was the concubine of her patron.
§48.5.14.1Plane siue iusta uxor fuit siue iniusta, accusationem instituere uir poterit: nam et Sextus Caecilius ait, haec lex ad omnia matrimonia pertinet, et illud Homericum adfert: nec enim soli, inquit, Atridae uxores suas amant. οὐ μόνοι φιλέους' ἀλόχους μερόπων ἀνθρώπων Ἀτρεῖδαι.
Clearly, whether she was a lawful or an unlawful wife, the husband will be able to institute an accusation; for Sextus Caecilius also says that this law applies to all marriages, and adduces that passage of Homer: "For not only," he says, "do the sons of Atreus, of mortal men, love their wives." οὐ μόνοι φιλέους' ἀλόχους μερόπων ἀνθρώπων Ἀτρεῖδαι.
§48.5.14.2Sed et in ea uxore potest maritus adulterium uindicare, quae uolgaris fuerit, quamuis, si uidua esset, impune in ea stuprum committeretur.
But the husband can also punish adultery in the case of a wife who has been common, although, if she were a widow, illicit intercourse with her would be committed with impunity.
§48.5.14.3Diui Seuerus et Antoninus rescripserunt etiam in sponsa hoc idem uindicandum, quia neque matrimonium qualecumque nec spem matrimonii uiolare permittitur.
The deified Severus and Antoninus replied by rescript that this same thing is to be punished also in the case of a betrothed woman, because it is permitted to violate neither a marriage of any kind nor the hope of marriage.
§48.5.14.4Sed et si ea sit mulier, cum qua incestum commissum est, uel ea, quae, quamuis uxoris animo haberetur, uxor tamen esse non potest, dicendum est iure mariti accusare eam non posse, iure extranei posse.
But even if she is a woman with whom incest has been committed, or one who, although she was held with the intention of a wife, yet cannot be a wife, it must be said that she cannot be accused under the right of a husband, but can under the right of a stranger.
§48.5.14.5Iudex adulterii ante oculos habere debet et inquirere, an maritus pudice uiuens mulieri quoque bonos mores colendi auctor fuerit: periniquum enim uidetur esse, ut pudicitiam uir ab uxore exigat, quam ipse non exhibeat: quae res potest et uirum damnare, non rem ob compensationem mutui criminis inter utrosque communicare.
A judge of adultery ought to have before his eyes and inquire whether the husband, living chastely, was himself an exemplar to the woman for cultivating good morals; for it seems extremely unjust that a husband should demand from his wife a chastity that he himself does not display; which circumstance can both condemn the husband, and not make the matter common to both by way of compensation for a mutual crime.
§48.5.14.6Si quis uxorem suam uelit accusare dicatque eam adulterium commisisse antequam sibi nuberet, iure uiri accusationem instituere non poterit, quia non, cum ei nupta est, adulterium commisit.
If anyone wishes to accuse his wife and says that she committed adultery before she married him, he cannot institute an accusation under the right of a husband, because she did not commit adultery when she was married to him.
quod et in concubina dici potest, quam uxorem quis postea habuit, uel in filia familias, cuius coniunctioni pater postea concessit.
Which can also be said in the case of a concubine whom someone afterwards had as a wife, or in the case of a daughter-in-power to whose union the father afterwards consented.
§48.5.14.7Si quis plane uxorem suam, cum apud hostes esset, adulterium commisisse arguat, benignius dicetur posse eum accusare iure uiri: sed ita demum adulterium maritus uindicabit, si uim hostium passa non est: ceterum quae uim patitur, non est in ea causa, ut adulterii uel stupri damnetur.
If, clearly, anyone asserts that his wife committed adultery when she was with the enemy, it will be said more leniently that he can accuse her under the right of a husband; but the husband shall punish the adultery only if she did not suffer force from the enemy; for she who suffers force is not in such a position as to be condemned for adultery or illicit intercourse.
§48.5.14.8Si minor duodecim annis in domum deducta adulterium commiserit, mox apud eum aetatem excesserit coeperitque esse uxor, non poterit iure uiri accusari ex eo adulterio, quod ante aetatem nupta commisit, sed uel quasi sponsa poterit accusari ex rescripto diui Seueri, quod supra relatum est.
If a girl under twelve years of age, having been brought into the house, committed adultery, and soon afterwards passed the age in his house and began to be a wife, she cannot be accused under the right of a husband for that adultery which she committed when married before the age, but she can be accused as if she were a betrothed woman according to the rescript of the deified Severus, which was mentioned above.
§48.5.14.9Sed et si qua repudiata, mox reducta sit non quasi eodem matrimonio durante, sed quasi alio interposito, uidendum est, an ex delicto, quod in priore matrimonio admisit, accusari possit.
But also if any woman, having been divorced, was soon taken back, not as if the same marriage were continuing, but as if another had intervened, it must be seen whether she can be accused of an offense which she committed in the prior marriage.
et puto non posse: aboleuit enim prioris matrimonii delicta reducendo eam.
And I think she cannot; for he abolished the offenses of the prior marriage by taking her back.
§48.5.14.10Idem dicendum est, si stupri uelit accusare eam quam postea duxit uxorem: sero enim accusat mores, quos uxorem ducendo probauit.
The same must be said if he wishes to accuse of illicit intercourse her whom he afterwards took as his wife; for he is too late to accuse the morals which he approved of by taking her as his wife.