A girl who does not reject the will of her father is understood to consent. § A daughter is only permitted to refuse to consent to her father's wishes, when he selects a man who has been rendered unworthy by "mos"or who is guilty of disgraceful behavior (Sed quae patris voluntati non repugnat, consentire intellegitur.  §  Tunc autem solum dissentiendi a patre licentia filiae conceditur, si indignum moribus vel turpem sponsum ei pater eligat).

Where a son under paternal control refuses his consent, a betrothal cannot take place, so far as he is concerned (Filio familias dissentiente sponsalia nomine eius fieri non possunt).

Definition of Marriage

Where a girl under twelve years of age is married, she will not be a lawful wife until she has reached that age while living with her husband (Minorem annis duodecim nuptam tunc legitimam uxorem fore, cum apud virum explesset duodecim annos).
 

Dig. 23.2.19

Marcianus, Institutes, Book XVI.

In the Thirty-fifth chapter of the Lex Julia [Emperor Augustus in 18 B.C.], persons who wrongfully prevent their children from marrying who are subject to their authority, or who refuse to give them dowries, are compelled by the proconsuls or governors of provinces, under a constitution of the Divine Severus [193-211 A.D.] and Antoninus [i.e. Caracalla,  212-217 A.D.], to marry or to give them dowries. Moreover he seems to prohibit who did not seek the status  <of marriage> (Capite trigesimo quinto legis Iuliae qui liberos quos habent in potestate iniuria prohibuerint ducere uxores vel nubere, vel qui dotem dare non volunt ex constitutione divorum Severi et Antonini, per proconsules praesidesque provinciarum coguntur in matrimonium collocare et dotare.  Prohibere autem videtur et qui condicionem non quaerit).

*  *  *

Celsus, Digest, Book XV.

Where a son, being compelled by his father, marries a woman whom he would not have married if he had been left to the exercise of his own free will, the marriage will, nevertheless, legally be contracted; because marriage cannot be contracted between unwilling parties; consequently the son is held to have preferred to make this decision.  (Si patre cogente ducit uxorem, quam non duceret, si sui arbitrii esset, contraxit tamen matrimonium, quod inter invitos non contrahitur, maluisse hoc videtur).
 

*  *  *
 

Dig. 23.2.34

Papinianus, Opinions, Book IV.

A general commission to seek husband for a daughter in power is not sufficient ground for  marriage. Therefore it is necessary that the husband-to-be should be introduced to the father, and that the father should consent to the marriage, in order for the marriage to be contracted.  §  Where a man has accused his wife of adultery in accordance with his right as a husband, he is not forbidden, after the annulment of the marriage, to marry again. If, however, he does not accuse his wife as her husband, it will be held that the marriage that had been contracted will remain valid.  § Marriage can be contracted between stepchildren, even though they have a common brother, the issue of the new marriage of their parents.   § Where the daughter of a senator marries a freedman, the crime of her father does not render her a wife, for children should not be deprived of their rank on account of an offence of their father (Generali mandato quaerendi mariti filiae familias non fieri nuptias rationis est: itaque personam eius patri demonstrari, qui matrimonio consenserit, ut nuptiae contrahantur, necesse est.  § Ream adulterii, quam vir iure mariti postulavit, non prohibetur post abolitionem uxorem denuo ducere: sed et si non iure mariti ream postulavit, iure contractum matrimonium videbitur.  § Inter privignos contrahi nuptiae possunt, etsi fratrem communem ex novo parentium matrimonio susceptum habeant.  § Filiam senatoris nuptias libertini secutam patris crimen non faciat uxorem: nam quaesita dignitas liberis propter crimen patris auferenda non est.).


Dig. 23.2.43

Ulpianus, On the Lex Julia et Papia, Book I.

<12> §  Where a woman is caught in adultery, she is considered to have been publicly convicted of a criminal offence. Hence if she is proved to have been guilty of adultery, she will be branded with infamy, not only because she was caught flagrante delicto, but also because she was convicted of a criminal offence. If, however, she was not caught, but was, nevertheless, found guilty, she becomes infamous because she was convicted of a criminal offence; and, indeed, if she was caught but was not convicted, she would still be infamous. I think that even if she should be acquitted after having been caught, she will still remain infamous, because it is certain that she was taken in adultery, and the law renders the act infamous and does not make this dependent upon the judicial decision.  § It is not mentioned here, as in the Lex Julia on adultery, by whom or where the woman must be caught; hence she is considered infamous whether she was caught by her husband or by anyone else. She will also be infamous according to the terms of the law, even if she was not caught in the house of her husband  or her father's she will suffer infamia according to the terms of the statute. (Quae in adulterio deprehensa est, quasi publico iudicio damnata est.  Proinde si adulterii condemnata esse proponatur, non tantum quia deprehensa est erit notata, sed quia et publico iudicio damnata est. Quod si non sit deprehensa, damnata autem, idcirco notetur, quia publico iudicio damnata est, at si deprehensa quidem sit, damnata autem non sit, notata erit?   Ego puto, etsi absoluta sit post deprehensionem, adhuc tamen notam illi obesse debere, quia verum est eam in adulterio deprehensam, quia factum lex, non sententiam notaverit.  § Non adicitur hic ut in Lege Iulia de adulteriis a quo vel ubi deprehensam: Proinde sive maritus sive quis alius deprehendisse proponatur, videtur notata: sed et si non in domo mariti vel patris sui deprehensa sit, erit notata secundum verba legis.)

Dig. 24.2

Divorces and Repudiations (De divortiis et repudiis)

Marriage is dissolved by the divorce, death, captivity or either kind of slavery of either of the parties(Dirimitur matrimonium divortio morte captivitate vel alia contingente servitute utrius eorum).

*  *  *

Dig. 24.2.3

Paul, Edict, Book 35

The Lex Iulia on Punishing Adulteries (Ad legem Iuliam de adulteriis coercendis)

Dig. 48.5.12(11)<13>

Papinian, On Adultery, Book 1

I married a woman accused of adultery, and, as soon as she was convicted, I repudiated her. I ask whether I should be considered to have furnished the cause of the separation. The answer was that, since by the Julian Law you are prohibited from keeping a wife of this kind, it is clear that you should not be considered to have furnished the cause for the separation. Therefore, the law will be applied just as if a divorce had taken place through the fault of the woman (Ream adulterii uxorem duxi: eam damnatam mox repudiavi. Quaero, an causam discidii praestitisse videor.  Respondit: cum per legem iuliam huiusmodi uxorem retinere prohibearis, non videri causam te discidii praestitisse palam est. Quare ita ius tractabitur quasi culpa mulieris facto divortio).

Dig.48.5.21.(20)

A father is granted the right of killing an adulterer along with a daughter whom he has in power; no other father  may rightly do this, such as father who is a son-in-power (Patri datur ius occidendi adulterum cum filia quam in potestate habet: itaque nemo alius ex patribus idem iure faciet: sed nec filiusfamilias pater).

Dig. 48.5.23 (22).<2>

The right to kill is granted to the father in his own house, even if his daughter does not live there, or in the house of his son-in-law;  the term "house" is to be taken as meaning "domicile" as in the lege cornelia de iniuriis  (Ius occidendi patri conceditur domi suae, licet ibi filia non habitat, vel in domo generi: sed "domus" et pro "domicilio" accipienda est, ut in lege Cornelia de iniuriis).

Dig. 48.5.24(23)

Ulpian, On Adultery, Book I.

What the law says,  "If he [Paterfamilias] finds a man committing adultery with his daughter," does not seem to be superfluous; for it signifies that the father shall have this power only when he surprises his daughter in the very act of adultery. Labeo also adopts this opinion; and Pomponius says that the man must be killed while in the very performance of the sexual act (Quod ait lex " in filia adulterum deprehenderit", non otiosum videtur: voluit enim ita demum hanc potestatem patri competere, si in ipsa turpitudine filiam de adulterio deprehendat.  Labeo quoque ita probat, et Pomponius scripsit in ipsis rebus veneris deprehensum occidi: et hoc est quod Solo et Draco dicunt έη έρφω (in opera).  Sufficit patri, si eo tempore habeat in potestate, quo occidit, non quo in matrimonio collocavit: finge enim postea redactam in potestatem.  Quare non, ubicumque deprehenderit pater, permittitur ei occidere, sed domi suae generive sui tantum, illa ratio redditur, quod maiorem iniuriam putavit legislator, quod in domum patris aut mariti ausa fuerit filia adulterum inducere).


CODEX
 

Cod. 9.9

On the Lex Julia Relating to Adultery and Fornication.

Cod. 9.9.1 The Emperors Severus and Antoninus to Cassia. [198 A.D.]

The Lex Julia declares that wives have no right to bring criminal accusations for adultery against their husbands, even though they may desire to complain of the violation of the marriage vow, for while the law grants the faculty of the right of the husband to men it does not concede it to women (Publico iudicio non habere mulieres adulterii accusationem, quamvis de matrimonio suo violato queri velint, lex Iulia declarat, quae, cum masculis iure mariti facultatem accusandi detulisset, non idem feminis privilegium detulit. * sev. et ant. aa. cassiae. * <a 197 pp. xiii k. aug. laterano et rufino conss.>).


Cod. 9.9.3 The Emperor Antoninus to Julianus. [214 A.D.]

Not only the words of the Lex Julia concerning the repression of adultery, but also the spirit of the law, authorize a husband who desires to prove that his wife has been guilty of adultery to do so by torturing slaves and serving maids; and this applies only to the slaves of the persons specially mentioned in the law, that is to say, the woman, and her natural, not her adoptive father; and it forbids the said slaves to be either manumitted or sold within the term of sixty days, to be computed from the date of the dissolution of the marriage, and requires the husband to furnish a bond to the owners of said slaves to indemnify them, if the former should die under torture, or become deteriorated in value, and if the woman be acquitted (Verba legis Iuliae de adulteriis coercendis, sed etiam sententia per quaestionem quoque servorum sive ancillarum crimen admissum probari volentis ad earum tantum personarum servos ei rei exhibendos pertinet, de quibus specialiter comprehendit, id est mulieris et patris eius, non naturalis, sed iusti dumtaxat, quos intra sexagesimum diem ex dissolutione matrimonii numerandum manumitti vel distrahi prohibet et quorum dominis caveri praecipit, si defuncti fuerint in quaestione vel facti deteriores, secuta absolutione. * ant. a. iuliano. * <a 213 pp.Xv k.Aug.Antonino a iiii et balbino conss.>).

Cod. 9.9.4 The Emperor Alexander to Julian, Proconsul of the Province of Narbonne. [n.d.]

If Numerius, who killed Gracchus at night in the act of adultery, did so under such circumstances that he could have taken his life with impunity by virtue of the Lex Julia, what was lawfully done will incur no penalty.  The same rule applies to sons who have obeyed the orders of their father, in a case of this kind. If, however, the husband, rendered insane by grief, killed the adulterer without being legally authorized to do so, even though the homicide may have been excusable, still, because it was committed at night, and his just grief diminished the criminality of the act, he can be sent into exile (Gracchus, quem Numerius in adulterio noctu deprehensum interfecerit, si eius condicionis fuit, ut per legem Iuliam impune occidi potuerit, quod legitime factum est, nullam poenam meretur: idemque filiis eius qui patri paruerunt praestandum est.  Sed si legis auctoritate cessante inconsulto dolore adulterum interemit, quamvis homicidium perpetratum sit, tamen quia et nox et dolor iustus factum eius relevat, potest in exilium dari.* alex. a. iuliano procons. narbonensis. * <a xxx pp. sine die et consule.>).


Cod. 9.9.9 The Same Emperor to Proculus. [225 A.D.]

It is proper for the preservation of virtue during my reign that a woman convicted under the Lex Julia concerning chastity should suffer the legal penalty.  Moreover, anyone that knowingly marries, or takes back a woman convicted of adultery, who has in some way evaded the capital punishment prescribed for her crime, shall be punished by the same law as if he were a pimp (Castitati temporum meorum convenit lege Iulia de pudicitia damnatam in poenis legitimis perseverare. Qui autem adulterii damnatam, si quocumque modo poenam capitalem evaserit, sciens duxit uxorem vel reduxit, eadem lege ex causa lenocinii punietur. * alex. a. proculo. * <a 224 pp.Vii k.Febr.Iuliano et crispino conss.>).

Cod. 9.9.11 The Same Emperor to Narvanus.

No one doubts that a husband cannot accuse his wife of adultery if he continues to retain her in marriage (Crimen adulterii maritum retenta in matrimonio uxore inferre non posse nemini dubium est. * alex. a. norbano. * <a 226 pp.K.Sept.Alexandro ii et Marcello conss.>).

Cod. 9.9.18 The Same Emperors [Valerian and Gallienus] and the Caesar Valerian to Theodora. [259 A.D.]

There is no doubt that he who has two wives at once is branded with infamy, for, in a case of this kind, not the operation of the law by which our citizens are forbidden to contract more than one marriage at a time, but the intention, should be considered; and therefore he who pretended to be unmarried, but had another wife in the province, and asked you to marry him, can lawfully be accused of the crime of fornication, for which you are not liable, for the reason that you thought that you were his wife. You can obtain from the Governor of the province the return of all your property of which you deplore the loss on account of the fraudulent marriage, and which should be restored to you without delay. But how can you recover what he promised to give you as his betrothed (Eum qui duas simul habuit uxores sine dubitatione comitatur infamia.  In ea namque re non iuris effectus, quo cives nostri matrimonia contrahere plura prohibentur, sed animi destinatio cogitatur.  Verumtamen ei, qui te ficto caelibatu, cum aliam matremfamilias in provincia reliquisset, sollicitavit ad nuptias, crimen etiam stupri, a quo tu remota es, quod uxorem te esse credebas, ab accusatore legitimo sollemniter inferetur.  Imperat certe res tuas omnes, quas ab eo interceptas matrimonii simulatione deploras, restitui tibi omni exactionis instantia impetrabis a rectore provinciae: nam ea quidem, quae se tibi ut sponsae daturum promisit, quomodo repetere cum effectu potes quasi sponsa? <a 258 accepta id. mai. antiochiae tusco et basso conss.>)

20. The Same Emperors [Diocletian and Maximian] and Caesars to Didymus. [290 A.D.]

The laws punish the detestable wickedness of women who prostitute their chastity to the lusts of others, but does not hold those liable who are compelled to commit fornication through force, and against their will. And, moreover, it has very properly been decided that their reputations are not lost, and that their marriage with others should not be prohibited on this account (Foedissimam earum nequitiam, quae pudorem suum alienis libidinibus prosternunt, non etiam earum, quae per vim stupro comprehensae sunt, inreprehensam voluntatem leges ulciscuntur, quando etiam inviolatae existimationis esse nec nuptiis earum aliis interdici merito placuit. * diocl. et maxim. aa. didymo. * <a 290 pp. iii non. oct. ipsis iiii et iii aa. conss.>).

22. The Same Emperors and Caesars to Oblimosus. [290 A.D.]

If a woman whom you have carnally known indiscriminately sold herself for money, and prostituted herself everywhere as a harlot, you did not commit the crime of adultery with her (Si ea quae tibi stupro cognita est passim venalem formam exhibuit ac prostituta meretricio more vulgo se praebuit, adulterii crimen in ea cessat. * diocl. et maxim. aa. obrimo. * <a 290 pp. xii k. nov. ipsis iiii et iii aa. conss.>).

 

Cod. 5.17.8 

We decree that legal marriage may be contracted by consent, but this having once been done, that it cannot be dissolved unless by notice of repudiation, for the favor to which children are entitled demands that its dissolution should be rendered more difficult.  We clearly enumerate the causes of repudiation by this most salutary law, for as We (with proper limitations) forbid marriage to be dissolved without good cause, so that where one of the parties is compelled by necessity, or the other is oppressed by some misfortune, We desire that he or she shall be liberated by Our aid, when this becomes necessary.  Therefore, if a woman should ascertain that her husband is an adulterer, a murderer, a poisoner, or one who is plotting anything against our authority; or has been convicted of perjury or forgery, or is a violator of sepulchres, or has stolen anything from sacred buildings; or is a robber or a harborer of robbers, a cattle thief or a kidnapper; or, in contempt of his house and of her, or in her presence, has consorted with dissolute women (which is especially exasperating to females who are chaste) ; or if he has attempted to deprive her of life by poison, or by the sword, or in any other way; or if she should prove that he had beaten her (which is not allowed in the case of freeborn women), We then grant her permission to avail herself of the necessary aid of repudiation, and to present legal reasons for divorce  (Consensu licita matrimonia posse contrahi, contracta non nisi misso repudio solvi praecipimus. Solutionem etenim matrimonii difficiliorem debere esse favor imperat liberorum. Causas autem repudii hac saluberrima lege apertius designamus. Sicut enim sine iusta causa dissolvi matrimonia iusto limite prohibemus, ita adversa necessitate pressum vel pressam, quamvis infausto, attamen necessario auxilio cupimus liberari.  Si qua igitur maritum suum adulterum aut homicidam vel veneficum vel certe contra nostrum imperium aliquid molientem vel falsitatis crimine condemnatum invenerit, si sepulchrorum dissolutorem, si sacris aedibus aliquid subtrahentem, si latronem vel latronum susceptorem vel abactorem aut plagiarium vel ad contemptum sui domi suae ipsa inspiciente cum impudicis mulieribus ( quod maxime etiam castas exasperat) coetum ineuntem, si suae vitae veneno aut gladio vel alio simili modo insidiantem, si se verberibus, quae ab ingenuis aliena sunt, adficientem probaverit, tunc repudii auxilio uti necessariam ei permittimus libertatem et causas discidii legibus comprobare. <a 449 d.V id.Ian.Protogene et asterio conss.> ).

Justinian, Extract from Novel 134, Chapter 10 [556 A.D.]

At present, however, a woman convicted of adultery is placed in a monastery, from which her husband is permitted to remove her within the term of two years. After the two years have expired, without her husband having taken her back, or, before that, if he should have died, the adulteress, having had her head shaved, and assumed a religious habit, shall remain there during lifetime, and her property, if she has any, shall be divided into three parts, two of which should be given to her children, and the third to the monastery. When she has no children, and her parents are living and did not consent to her crime, they shall receive a third part of her property, and the monastery two-thirds of the same. If her aforesaid relatives are not living , all of her property shall be acquired by her monastery, and, in every instance, all rights under dotal agreements are reserved for the benefit of the husband.




Translation partially based on S.P. Scott, The Civil Law, (Cincinnati: The Central Trust, 1932), reprinted in Richard M. Golden and Thomas Kuehn, eds., Western Societies: Primary Sources in Social History, Vol I, (New York: St. Martin's Press, 1993), with indication that this text is not under copyright on p. 329.  Scott's translation can be found online at: http://www.constitution.org/sps/sps.htm


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(c)Paul Halsall Mar 1996
halsall@murray.fordham.edu