Exerpted from: Emperor Justinian, CODEX JUSTINIANUS,
Book IX, Title IX., Book 14
Last Updated: Feb 15, 2009
(future section planned)
Collected Rulings on Social Issues
These are Selections from the CODEX JUSTINIANUS, Book IX, Title IX. On the Lex Julia Relating to Adultery and Fornication.
Selections from the
Book IX, Title IX. On the Lex Julia Relating to Adultery and Fornication
20. The Same Emperors [Diocletian and Maximian] and Caesars to Didymus.
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 [i.e., because of a forcible sexual assault]....
22. The Same Emperors and Caesars to Oblimosus.
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 [i.e., you are innocent of 'adultery' under law]...
25. The Same Emperors and Caesars to Sossianus.
Although it is established by the contents of certain documents that you are consumed with the lust of immoderate desire, still, as it as been ascertained that you confined yourself to female slaves, and did not have intercourse with free women, it is clear that by a sentence of this kind [only] your reputation suffers, rather than that you become infamous [i.e. branded a criminal]...
27. The Same Emperors and Caesars to Phoebus.
Adultery committed with a man whom a woman afterwards married is not extinguished by the fact of the marriage....
29. The Emperor Constantine to Africanus.
It should be ascertained whether the woman who committed adultery was the owner of the inn, or only a servant; and if, by employing herself in servile duties (which frequently happens), she gave occasion for intemperance, since if she were the mistress [owner/manager] of the inn, she will not be exempt from liability under the law.
Where, however, she served liquor to the men who were drinking [i.e., only a waitress], she would not be liable to accusation as having committed the offense, on account of her inferior rank, and any freemen who have been accused shall [also] be discharged, as the same degree of modesty is required of those women [inn owners] as of those who are legally married, and [often] bear the name [i.e. reputation] of mothers of families.
Those, also, are not subject to judicial severity who are guilty of fornication or adultery, but [where] the vileness [i.e. lowly status] of whose lives does not render them worthy of the attention of the law....
30. The (Same) Emperor to Evagrius.
Although the crime of adultery is included among public offenses, the accusation of which is granted to all persons without distinction, still, in order that those who inconsiderately wish to cause discord in households may not be allowed to do so, it is hereby decreed that only the nearest relatives of the guilty party shall have the power to bring the accusation; - that is to say, the father, the brother, and the paternal and maternal uncles, whom genuine grief may impel to prosecute. We also, however, give the said persons permission to revoke the accusation, by withdrawing it, if they should so desire.
The husband, above all others, should be considered the avenger of the marriage bed, for he is permitted to accuse his wife on suspicion, and he is not forbidden to retain her, if he only suspects her; nor will he be liable if he files a written accusation when he accuses her as her husband, a privilege which was established by former Emperors...
(circa 326 A.D.)
33. The Emperors Theodosius, Arcadius,
and Honorius to Rufinus, Praetorian Prefect.
When a charge of adultery has been made, We order that all civil exceptions by means of which a dowry may be claimed, or any other debt demanded, and which are ordinarily pleaded and examined, to be set aside, and that the progress of the case shall not be delayed through their inter-position.
But when the accusation has been formulated, that is to say, when it has been regularly instituted [formally registered], whether it was filed under the right of a husband, or under that of a stranger, the crime shall be investigated, the evidence produced, the more important matters in dispute settled, and [as per above] all civil actions be subordinated to the criminal prosecution.
The woman will afterwards have the right to begin any civil proceedings to which she is entitled, provided they do not interfere with the conduct of the criminal case...
Extract from Justinian, Novel 134, Chapter X. Latin Text.
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 for life, 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....
Headings for non-relevant sections are given to show the other contents of the edict.
This edict is a general one. No names are mentioned in it, and those who are conscious of innocence need take no offence at anything contained therein.
'For long an ominous whisper has reached our ears that certain persons, dispising eivilitae, affect a life of beastly barbarism, returning to the wild beginnings of society, and looking with a fierce hatred on all human laws. The present seems to us a fitting time for repressing these men, in order that we may be hunting down vice and immorality within the Republic at the same time that, with God's help, we are resisting her external foes. Both are hurtful, both have to be repelled; but the internal enemy is even more dangerous than the external. One, however, rests upon the other; and we shall more easily sweep doen the armies of our enemies if we subdue under us the vices of the age.
[This allusion to foreign enemies is perhaps explained by the hint in Jordanes ('De Reb. Get.' 59) of threatened war with the Franks. But he gives no sufficient indication of the time to enable us to fix the date of the Edictum.]
'I. Forcible Appropriation of Landed Property (Pervasio). ...
'II. Affixing Titles to Property...
'III. Suppression of Words in a Decree...
'IV Seduction of a Married Woman.
He who tries to interfere with the married rights of another, shall be punished by inability to contract a valid marriage himself.
[This punishment of compulsory celibacy is, according to Dahn, derived neither from Roman nor German law, but is possibly due to Church influence.]
The offender who has no hope of present or future matrimony shall be punished by confiscation of half his property; or, if a poor man, by banishment.
All the statutes of th elate King (divalis commonitio) in this matter are to be strictly observed.
[Edict. Theodoriei, Para. 38, inflicted the death penalty on both offenders and on the abettors of the crime.]
'VI. Bigamy is to be punished with loss of all the offender's property.
'VII Concubinage. If a married man forms a connection of this kind with a free woman, she and all her children shall become the slaves of the injured wife. IF with a woman who is a slave already, she shall be subjected to any revenge that the lawful wife likes to inflict upon her, short of blood-shedding.
'VIII Extorted Donations...
'IX. Magicians practising nefarious arts...
'X. Violence against the Weak...
'But lest, while touching on a few points, we should be thought not to wish the laws to be observed in other matters, we declare that all the edicts of ourself and of our lord and grandfather, which were confirmed by venerable deliberation, and the whole body of decided law, be adhered to with utmost rigour.
And these laws are so scrupulously guarded that our own oath is interposed for their defence. Why enlarge further? Let the usual rule of law and the honest intent of our precepts be everywhere observed.'