[IDEM libro trigesimo sexto quaestionum. ] §48.5.39.prSi adulterium cum incesto committatur, ut puta cum priuigna nuru nouerca, mulier similiter quoque punietur: id enim remoto etiam adulterio eueniret.
[BY THE SAME AUTHOR, Questions, Book XXXVI.] If adultery is committed in conjunction with incest, for example, with a stepdaughter, a daughter-in-law, or a stepmother, the woman shall likewise be punished; for this result would occur even if adultery were set aside.
§48.5.39.1Stuprum in sororis filiam si committatur, an adulterii poena sufficiat mari, considerandum est.
If illicit intercourse is committed with a sister's daughter, it must be considered whether the penalty for adultery is sufficient for the man.
occurrit, quod hic duplex admissum est, quia multum interest, errore matrimonium illicite contrahatur an contumacia iuris et sanguinis contumelia concurrant.
It occurs to us that a double offense has been committed here, because there is a great difference between whether a marriage is unlawfully contracted through error, or whether defiance of the law and insult to the blood-tie concur.
§48.5.39.2Quare mulier tunc demum eam poenam, quam mares, sustinebit, cum incestum iure gentium prohibitum admiserit: nam si sola iuris nostri obseruatio interueniet, mulier ab incesti crimine erit excusata.
Therefore, a woman will only then undergo the same penalty as men when she has committed incest prohibited by the law of nations; for if only the observance of our own law is involved, the woman will be excused from the crime of incest.
§48.5.39.3Nonnumquam tamen et in maribus incesti crimina, quamquam natura grauiora sunt, humanius quam adulterii tractari solent: si modo incestum per matrimonium illicitum contractum sit.
Sometimes, however, even in the case of men, the crimes of incest, although by nature more severe, are accustomed to be treated more leniently than those of adultery, provided that the incest was contracted through an unlawful marriage.
§48.5.39.4Fratres denique imperatores Claudiae crimen incesti propter aetatem remiserunt, sed distrahi coniunctionem illicitam iusserunt, cum alias adulterii crimen, quod pubertate delinquitur, non excusetur aetate.
Finally, the brother emperors remitted the crime of incest to Claudia on account of her age, but ordered the unlawful union to be dissolved; whereas otherwise the crime of adultery, which is committed after puberty, is not excused by age.
nam et mulieres in iure errantes incesti crimine non teneri supra dictum est, cum in adulterio commisso nullam habere possint excusationem.
For it has been said above that women who err in law are not held liable for the crime of incest, whereas they can have no excuse when adultery has been committed.
§48.5.39.5Idem imperatores rescripserunt post diuortium, quod cum nouerca bona fide priuignus fecerit, non esse crimen admittendum incesti.
The same emperors wrote in a rescript that after a divorce, which a stepson had entered into in good faith with his stepmother, the crime of incest is not to be admitted.
§48.5.39.6Idem Pollioni in haec uerba rescripserunt: 'Incestae nuptiae confirmari non solent: et ideo abstinenti tali matrimonio poenam praeteriti delicti, si nondum reus postulatus est, remittimus'. §48.5.39.7Incestum autem, quod per illicitam matrimonii coniunctionem admittitur, excusari solet sexu uel aetate uel etiam puniendi correctione, quae bona fide interuenit, utique si error allegetur, et facilius, si nemo reum postulauit.
The same emperors wrote in a rescript to Pollio in these words: 'Incestuous marriages are not accustomed to be confirmed; and therefore we remit to anyone abstaining from such a marriage the penalty of the past offense, if he has not yet been accused as a defendant.' On the other hand, incest which is committed through an unlawful marital union is accustomed to be excused by sex or age, or even by a correction of punishment which occurs in good faith, especially if error is alleged, and more easily if no one has accused the defendant.
§48.5.39.8Imperator Marcus Antoninus et Commodus filius rescripserunt: 'Si maritus uxorem in adulterio deprehensam impetu tractus doloris interfecerit, non utique legis Corneliae de sicariis poenam excipiet'. nam et diuus Pius in haec uerba rescripsit Apollonio: 'Ei, qui uxorem suam in adulterio deprehensam occidisse se non negat, ultimum supplicium remitti potest, cum sit difficillimum iustum dolorem temperare et quia plus fecerit, quam quia uindicare se non debuerit, puniendus sit.
The Emperor Marcus Antoninus and his son Commodus wrote in a rescript: 'If a husband, carried away by an impulse of grief, kills his wife caught in adultery, he does not indeed escape the penalty of the Cornelian Law on Assassins.' For the Divine Pius also wrote in a rescript to Apollonius in these words: 'To him who does not deny that he killed his wife caught in adultery, the ultimate punishment may be remitted, since it is extremely difficult to moderate a just grief, and because he should be punished because he did more than he ought, rather than because he should not have avenged himself.
sufficiet igitur, si humilis loci sit, in opus perpetuum eum tradi, si qui honestior, in insulam relegari'. §48.5.39.9Liberto patroni famam lacessere F(XYMOC) non facile conceditur: sed si iure mariti uelit adulterii accusare, permittendum est, quomodo si atrocem iniuriam passus esset.
It will therefore be sufficient, if he is of humble station, to be condemned to perpetual labor, and if of more honorable rank, to be relegated to an island.' A freedman is not easily permitted to attack the reputation of his patron F(XYMOC); but if he wishes to accuse him of adultery by the right of a husband, it must be permitted, just as if he had suffered an atrocious injury.
certe si patronum, qui sit ex eo numero, qui deprehensus ab alio interfici potest, in adulterio uxoris deprehenderit, deliberandum est, an impune possit occidere.
Certainly, if he should catch his patron in adultery with his wife—who is of that number who can be killed by another when caught—it must be considered whether he can kill him with impunity.
quod durum nobis esse uidetur: nam cuius famae, multo magis uitae parcendum est.
This seems harsh to us; for if a person's reputation is to be spared, much more is his life to be spared.
§48.5.39.10Si quis in honore ministerioue publico sit, reus quidem postulatur, sed differtur eius accusatio et cautionem iudicio sistendi causa promittit in finem honoris.
If anyone is in a public office or service, he is indeed accused as a defendant, but his prosecution is deferred, and he promises security for appearing in court until the end of his office.
et hoc ita Tiberius Caesar rescripsit.
And Tiberius Caesar wrote a rescript to this effect.