Justinian I · The Digest of Justinian §48.5.6.pr-48.5.6.3

Scope of the Julian Law, Definitions, and Rights of Accusation

Passage 8180 of 9271 · Latin

Summary

This section explains that the Julian law applies only to free persons while civil actions cover slaves, distinguishes the definitions of 'adulterium' and 'stuprum', and outlines the right of accusation for sons-in-power and husbands with multiple pending cases.

[PAPINIANUS libro primo de adulteris. ] §48.5.6.prInter liberas tantum personas adulterium stuprumue passas lex Iulia locum habet.

[PAPINIANUS, in the first book on Adulteries.] The Julian law applies only between free persons who have suffered adultery or illicit sexual intercourse.

quod autem ad seruas pertinet, et legis Aquiliae actio facile tenebit et iniuriarum quoque competit nec erit deneganda praetoria quoque actio de seruo corrupto: nec propter plures actiones parcendum erit in huiusmodi crimine reo.

But as far as female slaves are concerned, both the action under the Aquilian law will easily lie, and the action for injuries is also available, nor should the praetorian action for corrupting a slave be denied; nor, on account of multiple actions, should the defendant be spared in a crime of this kind.

§48.5.6.1Lex stuprum et adulterium promiscue et καταχρηστικώτερον appellat.

The law calls illicit sexual intercourse and adultery interchangeably and rather catachrestically.

sed proprie adulterium in nupta committitur, propter partum ex altero conceptum composito nomine: stuprum uero in uirginem uiduamue committitur, quod Graeci φθοράν appellant.

But properly speaking, adultery is committed against a married woman, being a compound name on account of a child conceived from another; whereas illicit sexual intercourse is committed against a virgin or a widow, which the Greeks call phthora.

§48.5.6.2Filius familiae maritus ab eo, qui sui iuris est, in ea lege non separatur.

A husband who is a son-in-power is not distinguished under this law from one who is independent.

diuus quoque Hadrianus Rosiano Gemino rescripsit et inuito patre filium hac lege reum facere.

The Divine Hadrian also replied by rescript to Rosianus Geminus that, even against his father's will, a son can make a defendant under this law.

§48.5.6.3Maritus etsi duo reos ex alio crimine habeat, poterit iure uiri tertium accusare, quoniam ea causa non cedit in numerum ceterarum.

Even if a husband has two defendants under another charge, he will be able by his right as a husband to accuse a third, since that case does not count towards the number of the others.

Notes

48.5.6.prpassas — The perfect participle of the deponent verb patior (to suffer, undergo), in the feminine accusative plural, agreeing with the preceding noun personas and retaining an active meaning.
48.5.6.2filium hac lege reum facere — An accusative and infinitive construction introduced by rescripsit, where filium is the subject of the infinitive facere. The direct object of reum facere (to make a defendant, i.e., to accuse) is omitted as it is clear from the context. Translating this passively as 'to make the son a defendant' would contradict the preceding sentence which establishes that a husband who is a son-in-power has the same right of accusation as an independent person.
48.5.6.3non cedit in numerum — An idiomatic use of cedere with in and the accusative, meaning 'to be counted towards' or 'to fall into the number of'. This refers to the privilege that an accusation of adultery brought by a husband is exempt from the statutory limit on the number of public prosecutions an individual could simultaneously undertake.

Cite this passage

Justinian I, The Digest of Justinian §48.5.6.pr-48.5.6.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:48.5.6.pr-48.5.6.3

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