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Justinian I · The Digest of Justinian §48.5.20.pr-48.5.20.3

Accusing the Wife upon the Adulterer's Death or Acquittal

Passage 8194 of 9271 · Latin

Summary

This section discusses whether and under what conditions a married woman can be accused of adultery when the adulterer dies, is removed from trial by another punishment, or is acquitted.

[ULPIANUS libro secundo ad legem Iuliam de adulteris. ] §48.5.20.pradulter diem suum obierit, constitutum est etiam mortuo adultero sine praescriptione mulierem posse accusari.
[ULPIAN, in the second book on the Julian Law on Adulteries.] if the adulterer has died, it has been established that even after the death of the adulterer, the woman can be accused without any prescription.
§48.5.20.1Sed et si non mors, sed poena alia reum subtraxerit, adhuc dicimus posse ad mulierem ueniri.
But even if not death, but another punishment has withdrawn the accused, we still say that it is possible to proceed against the woman.
§48.5.20.2Si eo tempore, quo eligebatur reus, adultera nupta non fuit, quo autem absoluatur, nupta inuenitur: dicendum est hanc absoluto quoque adultero posse accusari, quia eo tempore, quo adulter eligebatur, nupta non fuit.
If at the time when the accused was being selected, the adulteress was not married, but when he is acquitted, she is found to be married: it must be said that she can be accused even after the acquittal of the adulterer, because at the time when the adulterer was being selected, she was not married.
§48.5.20.3Nupta non potest accusari, non tantum ab eo, qui adulterum accusauit nec optinuit, sed nec ab alio quidem, si adulter absolutus est.
A married woman cannot be accused, not only by the one who accused the adulterer and did not succeed, but indeed not even by anyone else, if the adulterer has been acquitted.
proinde si per collusionem cum adultero constituerit² fueritque absolutus, dedit mulieri nuptae aduersus omnes securitatem.
Therefore, if through collusion with the adulterer a trial has been set up and he has been acquitted, this has given safety to the married woman against everyone.
plane si nupta esse desierit, accusari poterit: neque enim aliam lex tuetur quam eam, quae nupta est, quamdiu nupta erit.
Of course, if she ceases to be married, she can be accused: for the law protects no other woman than her who is married, as long as she is married.

Notes

  1. §48.5.20.prsine praescriptione — Here, "praescriptio" (prescription/procedural bar) refers to the procedural restriction under the Lex Iulia which prohibited accusing the wife unless the adulterer had been accused and convicted first. If the adulterer dies, this restriction does not apply, and the wife can be accused directly.
  2. §48.5.20.1posse ad mulierem ueniri — The impersonal passive ("ueniri", lit. "to be come to") is used here to indicate that "proceedings can be taken against the woman."
  3. §48.5.20.2eo tempore, quo eligebatur reus — "The time when the accused (reus) was selected (eligebatur)" refers to the moment when the accuser chose which of the suspects (in this case, the adulterer) to prosecute first and initiated the prosecution.
  4. §48.5.20.3constituerit — The manuscript reading `constituerit` (established or set up) is often considered a scribal error for `constiterit` (stood trial/appeared in court) or understood as having the sense of "colluding" with the adulterer to set up a sham trial.

Cite this passage

Justinian I, The Digest of Justinian §48.5.20.pr-48.5.20.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:48.5.20.pr-48.5.20.3

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