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Adulterium

The Roman section only (p17)
of an article by George Long, M.A., Fellow of Trinity College
on pp16‑17 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

ADULTER′IUM, adultery.

[. . .]

p17 2. Roman. Adulterium properly signifies, in the Roman law, the offence committed by a man, married or unmarried, having sexual intercourse with another man's wife. Stuprum (called by the Greeks φθορά) signifies the commerce with a widow or a virgin.º It was the condition of the female which determined the legal character of adultery; there was no adultery unless the female was married. It is stated, however (Dig.48 tit. 5 s13), that a woman might commit adultery whether she was "justa uxor sive injusta," the meaning of which is not quite certain; but probably it means whether she was living in a marriage recognised as a marriage by the Roman law or merely by the jus gentium. The male who committed adultery was adulter, the female was adultera. The Latin writers were puzzled about the etymology of the word adulterium; but if we look to its various significations besides that of illegal sexual commerce, we may safely refer it to the same root as that which appears in adultus. The notion is that of "growing to," "fixing," or "fastening to," one thing on another and extraneous thing: hence, among other meanings, the Romans used adulterium and adulteratio as we use the word "adulteration," to express the corrupting of a thing by mixing something with it of less value.

In the time of Augustus a lex was enacted (probably B.C. 17), intitled Lex Julia de Adulteriis coërcendis, the first chapter of which repealed some prior enactments on the same subject, with the provisions of which prior enactments we are, however, unacquainted. Horace (Carm. IV.5.21) alludes to the Julian law. In this law, the terms adulterium and stuprum are used indifferently; but, strictly speaking, these two terms differed as above stated. The chief provisions of this law may be collected from the Digest (Dig. 48.5), from Paulus (Sentent. Recept. II. tit. 26 ed. Schulting), and Brissonius (Ad Legem Juliam De Adulteriis, Lib. Sing.).

It seems not unlikely that the enactments repealed by the Julian law continued special penal provisions against adultery; and it is also not improbable that, by the old law or custom, if the adulterer was caught in the fact, he was at the mercy of the injured husband, and that the husband might punish with death his adulterous wife (Dionys. II.25; Suet. Tib. 35). It seems, also, that originally the act of adultery might be prosecuted by any person, as being a public offence; but under the emperors the right of prosecution was limited to the husband, father, brother, patruus, and avunculus of the adulteress.

By the Julian law, if a husband kept his wife after an act of adultery was known to him, and let the adulterer off, he was guilty of the offence of lenocinium. The husband or father in whose power the adulteress was, had sixty days allowed for commencing proceedings against the wife, after which time any other person might prosecute (Tacit. Ann. II.85). A woman convicted of adultery was mulcted in half of her dos and the third part of her property (bona), and banished (relegata) to some miserable island, such as Seriphos, for instance. The adulterer was mulcted in half his property, and banished in like manner, but not to the same island as the woman. The adulterer and adulteress were subjected also to civil incapacities; but this law did not inflict the punishment of death on either party; and in those instances under the emperors in which death was inflicted, it must be considered as an extraordinary punishment, and beyond the provisions of the Julian law (Tacit. Ann. II.50, Ann. III.24; J. Lips., Excurs. ad Tacit. Ann. IV.42; Noodt, Op. Omn. I.286, &c.). But by a constitution of Constantine (Cod. IX.30, if it is genuine), the offence in the adulterer was made capital. By the legislation of Justinian (Nov. 134 c10), the law of Constantine was probably only confirmed; but the adulteress was put into a convent, after being first whipped. If her husband did not take her out in two years, she was compelled to assume the habit, and to spend the rest of her life in the convent.

The Julian law permitted the father (both adoptive and natural) to kill the adulterer and adulteress in certain cases, as to which there were several nice distinctions established by the law. If the father killed only one of the parties, he brought himself within the penalties of the Cornelian law De Sicariis. The husband might kill persons of a certain class, described in the law, whom he caught in the act of adultery with his wife; but he could not kill his wife. The husband, by the fifth chapter of the Julian law, could detain for twenty hours the adulterer whom he had caught in the act, for the purpose of calling in witnesses to prove the adultery. If the wife was divorced for adultery, the husband was intitled to retain part of the dos (Ulp. Frag. VI.12). The authorities for the Lex Julia de Adulteriis, but ancient and modern, are collected by Rein, Das Criminalrecht der Römer, 1844.

[G.L.]


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