Some Roman law on adultery

From Julius Paulus, book 2, title 26:

(1) In the second chapter of the Lex Julia concerning adultery, either an adoptive or a natural father is permitted to kill an adulterer caught in the act with his daughter in his own house or in that of his son-in-law, no matter what his rank may be.

(2) If a son under paternal control, who is the father, should surprise his daughter in the act of adultery, while it is inferred from the terms of the law that he cannot kill her, still, he ought to be permitted to do so.

(3) Again, it is provided in the fifth chapter of the Lex Julia that it is permitted to detain witnesses for twenty hours, in order to convict an adulterer taken in the act.

(4) A husband cannot kill any one taken in adultery except persons who are infamous, and those who sell their bodies for gain, as well as slaves, and the freedmen of his wife, and those of his parents and children; his wife, however, is excepted, and he is forbidden to kill her.

(5) It has been decided that a husband who kills his wife when caught with an adulterer, should be punished more leniently, for the reason that he committed the act through impatience caused by just suffering.

(6) After having killed the adulterer, the husband should at once dismiss his wife, and publicly declare within the next three days with what adulterer, and in what place he found his wife.

(7) An angry husband who surprises his wife in adultery can only kill the adulterer, when he finds him in his own house.

(8) It has been decided that a husband who does not at once dismiss his wife whom he has taken in adultery, can be prosecuted as a pander.

(9) ….<illegible in manuscript>….

(10) It should be noted that two adulterers can be accused at the same time with the wife, but more than that number cannot be.

(11) It has been decided that adultery cannot be committed with women who have charge of any business or shop.

(12) Anyone who debauches a male who is free, against his consent, shall be punished with death.

(13) ….

(14) It has been held that women convicted of adultery shall be punished with the loss of half of their dowry and the third of their estates, and by relegation to an island. The adulterer, however, shall be deprived of half his property, and shall also be punished by relegation to an island; provided the parties are exiled to different islands.

(15) It has been decided that the penalty for incest, which in case of a man is deportation to an island, shall not be inflicted upon the woman; that is to say when she has not been convicted under the Lex Julia concerning adultery.

(16) Fornication committed with female slaves, unless they are deteriorated in value or an attempt is made against their mistress through them, is not considered an injury.

(17) If a delay is demanded in a case of adultery it cannot be obtained.

These are portions of Roman law that our modern politicians might not entirely find welcome.

Digest of Roman Law online in English; and Hadrian on castrating your slaves

I’d like to highlight that an out-of-copyright translation of the Pandects, otherwise known as the Digest of Roman Law by Justinian, is actually online here as part of the Corpus Juris Civilis, under the  misleading title of “The Civil Law”.  Few people seem to know about this.

I thought that I would look at the comments on the Lex Cornelia, in 48.8, which I was discussing earlier in connection with legislation against magic.  The law is mainly concerned with assassination and poisonings, and so are the comments.  But there were clearly further provisions:

4. Ulpianus, On the Duties of Proconsul, Book VII. …

(2) The Divine Hadrian also stated the following in a Rescript: “It is forbidden by the Imperial Constitutions that eunuchs should be made, and they provide that persons who are convicted of this crime are liable to the penalty of the Cornelian Law, and that their property shall with good reason be confiscated by the Treasury.

“But with reference to slaves who have made eunuchs, they should be punished capitally, and those who are liable to this public crime and do not appear, shall, even when absent, be sentenced under the Cornelian Law. It is clear that if persons who have suffered this injury demand justice, the Governor of the province should hear those who have lost their virility; for no one has a right to castrate a freeman or a slave, either against his consent or with it, and no one can voluntarily offer himself to be castrated. If anyone should violate my Edict, the physician who performed the operation shall be punished with death, as well as anyone who willingly offered himself for emasculation.”

All this is interesting, considering that the priests of the state cult of Magna Mater (Cybele) were eunuchs!

A further interesting provision appears further down:

11. Modestinus, Rules, Book VI.

By a Rescript of the Divine Pius, Jews are permitted to circumcise only their own children, and anyone who performs this operation upon persons of a different religion will incur the penalty for castration.

This rescript of Antoninus Pius is second century, so cannot relate to Paul and Christianity; but if a similar attitude was around, it may explain why circumcision was not favoured by gentile converts.

Finally we get to something related to magic:

By a decree of the Senate it is ordered that anyone who offers sacrifices for the purpose of causing misfortune shall be subjected to the penalty of this law.

But the whole discussion relates to murder, rather than magic; clearly the latter was a minority concern.

Searching further for comments by Ulpian, I find this: 2. Ulpianus, On the Duties of Proconsul, Book VII.  This is in 48.22, concerning associations, but again may relate to Christians.

Anyone who becomes a member of an unlawful association is liable to the same penalty to which those are subject who have been convicted of having seized public places or temples by means of armed men.