Adultery in Ancient Rome | Early European History And Religion

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HARD LINE AGAINST ADULTERY IN ANCIENT ROME

Augustus's daughter Julia and an athlete

In attempt to boost the declining birth rate Augustus (27 B.C.– A.D. 14), in the A.D. 1st century, imposed strict marriage laws and changed adultery from an act of indecency to an act of sedition, decreeing that a man who discovered his wife's infidelity must turn her in or face charges himself. Adulterous couples could have their property confiscated, be exiled to different parts of the empire and be prohibited from marrying one another. Augustus passed the reforms because he believed that too many men spent their energy with prostitutes and concubines and had nothing for their wives, causing population declines.

Constantine (A.D. 307–337) also took a hard line against adultery. He wrote 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 of the inn, she will not be exempt from liability under the law. [Source: Codex Justinianus, Book IX, Title IX. On the Lex Julia Relating to Adultery and Fornication, University of Calgary] [Lex Julia is an ancient Roman law that was introduced by any member of the Julian family. Most often it refers to moral legislation introduced by Augustus in 23 B.C., or to a law from the dictatorship of Julius Caesar]

“Where, however, she served liquor to the men who were drinking, 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 be discharged, as the same degree of modesty is required of these women as of those who are legally married, and bear the name of mothers of families. Those, also, are not subject to judicial severity who are guilty of fornication or adultery, and the vileness of whose lives does not render them worthy of the attention of the law.... [A.D. 326]

Constantine wrote 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, however, also 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.... [A.D. 326]”

Romans Laws on Adultery and Debauchery

Claudius I's wife Messalina

Paul Halsall of Fordham University wrote: “Roman law developed as a mixture of laws, senatorial consults, imperial decrees, case law, and opinions issued by jurists. One of the most long lasting of actions” of the Byzantine Emperor Justinian' (A.D. 482-566) “was the gathering of these materials in the 530s into a single collection, later known as the Corpus Iuris Civilis [The Code of Civil Law]. The texts here address the issue of marriage, and date back particularly to the time of Augustus [ruled 27 B.C. - A.D. 14] who was very concerned about family matters and ensuring a large population. In the selections that follow the first part comes from the Digest and contain the opinions on marriage law of famous lawyers - Marcianus, Paulus, Terentius Clemens, Celsus, Modestinus, Gaius, Papinianus, Marcellus, Ulpianus, and Macer. Note that the most important were Papinianus (executed by the Emperor Caracalla in 212), who excelled at setting forth legal problems arising from cases, and Ulpianus (d. 223), who wrote a commentary on Roman law in his era. All these were legal scholars of the Roman imperial period whose works were considered important enough to keep in the Digest. [Source: “The Civil Law”, translated by S.P. Scott (Cincinnatis: 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)]

Papinianus, On Adultery, Book II: “Anyone who knowingly lends his house to enable debauchery or adultery to be committed there with a matron who is not his wife, or with a male, or who pecuniarily profits by the adultery of his wife, no matter what may be his status, is punished as an adulterer.”

“10. Papinianus, On Adultery, Book II: “A matron means not only a married woman, but also a widow. 1) Women who lend their houses, or have received any compensation for debauchery which they have committed, are also liable under this Section of the law. 2) A woman who gratuitously acts as a bawd for the purpose of avoiding the penalty for adultery, or hires her services to appear in the theatre, can be accused and convicted of adultery under the Decree of the Senate....11) Although a woman may be alleged to have married him with whom she is suspected of having committed adultery, she cannot be accused before the adulterer has been convicted. Otherwise, husbands desiring to have marriages, which have subsequently been contracted, annulled, would have recourse to this pretext, and say that their wives had married men with whom they had committed adultery.

“(12) A woman, having heard that her absent husband was dead, married another, and her first husband afterwards returned. I ask, what should be decided with reference to this woman? The answer was that the question is one of law and not of fact; for if a long time had elapsed without any proof of debauchery having been made, and the woman, having been induced by false rumors, and, as it were, released from her former tie, married a second time in accordance with law, as it is probable that she was deceived, and she can be held to have done nothing deserving of punishment. If, however, it is established that the supposed death of her husband furnished an inducement for her marrying a second time, as her chastity is affected by this fact, she should be punished in proportion to the character of the offence.

Roman Laws on Adultery and Women

Ulpianus, On the Lex Julia et Papia, Book I: “12) Where a woman is caught in adultery, she is considered to have been 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 [ie in the act of committing an obvious wrong], 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 of fence; 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 bee caught, she will still remain infamous, because it is certain that she wa taken in adultery, and the law renders the act infamous and does not make this dependent upon the judicial decision. 13) It is not mentioned here, as in the Lex Julia on adultery, by who 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.” [Lex Julia is an ancient Roman law that was introduced by any member of the Julian family. Most often it refers to moral legislation introduced by Augustus in 23 B.C., or to a law from the dictatorship of Julius Caesar]

rape of Lucretia

Papinianus, On Adultery, Book I: “The Julian Law only applies to free persons who have been the victims of adultery or debauchery. With reference to female slaves, recourse can easily be had to the action authorized by the Aquilian Law [a basic law of delicts from the 3rd century BCE], and that for injury will also lie, and the Praetorian action for the corruption of a slave will not be refused; so that the person guilty of this crime will not escape on account of the multiplicity of actions. [In Roman law, action is the term for a legal remedy and the procedures to pursue it.] 1) The law promiscuously and incorrectly designates the same crime by the terms debauchery and adultery. Properly speaking, adultery is only committed with a married woman; this name having been adopted on account of the child being begotten by another than the husband. Debauchery, which the Greeks call "corruption," is committed with a virgin, or a widow.”
Papinianus, On Adultery, Book II.” “13) 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.”
Ulpianus, On Adultery, Book II: “Where a wife did not commit adultery, but a concubine did, the husband cannot accuse her as such, because she is not his wife; still, he is not prohibited by law from bringing an accusation as a stranger, provided that she, in giving herself as a concubine, did not forfeit the name of a matron, as, for instance, a woman who had been the concubine of her patron....5) The judge who has jurisdiction of adultery must have before his eyes, and investigate whether the husband, living modestly, has afforded his wife the opportunity of having good morals; for it would be considered extremely unjust for the husband to require chastity for his wife, which he himself does not practice. This, indeed, may condemn the husband, but cannot afford a set-off for mutual crime when committed by both parties. 6) If anyone wishes to accuse his wife, and alleges that she committed adultery before he married her, he cannot bring the accusation by his right as a husband, because she did not commit adultery while she was married to him.

“26. Ulpianus, Disputations, Book III: “A woman cannot be accused of adultery during marriage by anyone who, in addition to the husband, is permitted to bring the accusation; for a stranger should not annoy a wife who is approved by her husband, and disturb a quiet marriage, unless he has previously accused the husband of being a pander. 1) When, however, the charge has been abandoned by the husband, it is proper for it to be prosecuted by another....

Romans Law: Father Can Kill Adulterer of His Daughter

Papinianus, On Adultery, Book I: “The right is granted to the father to kill a man who commits adultery with his daughter while she is under his control. Therefore no other relative can legally do this, nor can a son under paternal control, who is a father, do so with impunity.” 21. Ulpianus, On Adultery, Book I.: “Hence it happens that neither the father nor the grandfather can kill the adulterer. This is not unreasonable, for he cannot be considered to have anyone under his control who has not control of himself.” [Source: “The Civil Law”, translated by S.P. Scott (Cincinnatis: 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)]

brothel bedroom in Pompeii

Papinianus, On Adultery, Book I: “In this law, the natural father is not distinguished from the adoptive father. 1) In the accusation of his daughter, who is a widow, the father is not entitled to the preference. 2) The right to kill the adulterer is granted to the father in his own house, even though his daughter does not live there, or in the house of his son- in-law.... 4) Hence the father, and not the husband, has the right to kill the woman and every adulterer; for the reason that, in general, paternal affection is solicitous for the interests of the children, but the heat and impetuosity of the husband, who decides too quickly, should be restrained.”
Ulpianus, On Adultery, Book I. “What the law says, that is, "If he 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....1) It is sufficient for the father for his daughter to be subject to his authority at the time when he kills the adulterer, although she may not have been at the time when he gave her in marriage; for suppose that she had afterwards come under his control. 2) Therefore the father shall not be permitted to kill the parties wherever he surprises them, but only in his own house, or in that of his son-in law. The reason for this is, that the legislator thought that the injury was greater where the daughter caused the adulterer to be introduced into the house of her father or her husband. 3) If, however, her father lives elsewhere, and has another house in which he does not reside, and surprises his daughter there, he cannot kill her.

“(4) Where the law says, "He may kill his daughter at once;" this must be understood to mean that having to-day killed the adulterer he can not reserve his daughter to be killed subsequently; for he should kill both of them with one blow and one attack, and be inflamed by the same resentment against both. But if, without any connivance on his part, his daughter should take to flight, while he is killing the adulterer, and she should be caught and put to death some hours afterwards by her father, who pursued her, he will be considered to have killed her immediately.”

Romans Law: Husband Can Kill Adulterer of His Wife

Macer, Public Prosecutions, Book I: “A husband is also permitted to kill a man who commits adultery with his wife, but not everyone without distinction, as the father is; for it is provided by this law that the husband can kill the adulterer if he surprises him in his own house, but not if he surprises him in the house of his father-in law; nor if he was formerly a pander; or had exercised the profession of a mountebank, by dancing or singing on the stage; or had been convicted in a criminal prosecution and not been restored to his civil rights; or is the freedman of the husband or the wife, or of the father or mother, or of the son or the daughter of any of them; nor does it make any difference whether he belonged exclusively to one of the persons above mentioned, or owed services to two patrons in common, or was a slave. [Source: “The Civil Law”, translated by S.P. Scott (Cincinnatis: 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)]

Augustus's daughter Julia and an athlete

“1) It is also provided that a husband who has killed any one of these must dismiss his wife without delay. 2) It is held by many authorities to make no difference whether the husband is his own master, or a son under paternal control. 3) With reference to both parties, the question arises, in accordance with the spirit of the law, whether the father can kill a magistrate; and also where his daughter is of bad reputation, or has been illegally married, whether the father or the husband will still retain his right; and what should be done if the husband is a pander, or is branded with ignominy for some reason or other. It may properly be held that those have a right to kill who can bring an accusation as a father or a husband.

Ulpianus, On the Julian Law Relating to Adultery, Book II.: “It is provided as follows in the Fifth Section of the Julian Law: "That where a husband has surprised an adulterer with his wife, and is either unwilling or unable to kill him, he can hold him for not more than twenty consecutive hours of the day and night, in order to obtain evidence of the crime, and make use of his right without endangering it." 5) The following clause, "In order to obtain evidence of the crime," means that he can introduce witnesses who will afterwards testify that the offender was taken in adultery.”

Roman Emperors’ Positions on Adultery and Fornication

This section, from the Codex Justinianus, Book IX, Title IX. On the Lex Julia Relating to Adultery and Fornication, contain the later receipts of emperors concerning marriage law and punishments. Lex Julia is an ancient Roman law that was introduced by any member of the Julian family. Most often it refers to moral legislation introduced by Augustus in 23 B.C., or to a law from the dictatorship of Julius Caesar.

Emperors Severus and Antoninus to Cassia (A.D. 198): “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 this privilege to men it does not concede it to women.” 2. The Same Emperors to Cyrus. (A.D. 200): “Those are guilty of the crime of pimping who allow their wives taken in adultery to remain in marriage, and not those who merely suspect their wives of having committed adultery” [Source: “The Civil Law”, translated by S.P. Scott (Cincinnatis: 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)]
Emperor Antoninus to Julianus. (A.D. 214): “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 of both sexes; 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 the woman be acquitted.”
Emperor Alexander to Julian, Proconsul of the Province of Narbonne (A.D. 3rd century): “If Numerius, who killed Gracchuss 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....
Emperor Alexander to Heruclanus. (A.D. 224): “The man who afterwards married her cannot be a lawful accuser, where an adult virgin was violated before her marriage; and therefore he cannot prosecute the crime as her husband, unless he was betrothed to the girl who was violated. If, however, she herself, with the assistance of her curators by whom her affairs were transacted, should prosecute for the injury committed upon her, the Governor of the province will impose a severe sentence in accordance with what is required by law for a crime of this kind, if its commission should be established....”
Emperor Alexander tto Proculus. (A.D. 225): “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 penalty prescribed for her crime, shall be punished by the same law as a procurer....”
Emperor Alexander to Demetrianus. (A.D. 226): “It is not lawful to condone the crime of adultery, and he who is guilty of collusion is in the same position as one who refuses to reveal the truth. Moreover, he who accepts a sum of money to desist from prosecution, in a case where adultery has been discovered, is liable to the penalty imposed by the Lex Julia.” 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.”
Emperor Alexander Emperor to Bassus. (A.D. 241): “Although, as you allege, he who was convicted of the crime of adultery was not restored to his civil rights; still, since your sister, with whom the adultery was said to have been committed, was not accused, she could not have been subjected to any penalty, or rendered infamous, especially as you state that the accuser afterwards died....
Emperors Valerian and Gallienus and the Caesar Valerian to Theodora. (A.D. 259): “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 fornification, 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 u recover what he promised to give you as his betrothed?”
Emperors Diocletian and Maximian and Caesars to Didymus. (A.D. 290): “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.” 22. The Same Emperors and Caesars to Oblimosus. (A.D. 290): “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.” 25. The Same Emperors and Caesars to Sossianus. (A.D. 291): “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 your reputation suffers, rather than that you become infamous.” 27. The Same Emperors and Caesars to Phoebus. (A.D. 292): “Adultery committed with a man whom a woman afterwards married is not extinguished by the fact of the marriage.”
Emperors Theodosius, Arcadius, and Honorius to Rufinus, Praetorian Prefect. (A.D. 392): “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, 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 all civil actions be subordinated to the criminal prosecution. The woman will afterwards have the right to begin any civil proceedings to which he is entitled, provided they do not interfere with the conduct of the criminal case.”

Image Sources: Wikimedia Commons

Text Sources: Internet Ancient History Sourcebook: Rome sourcebooks.fordham.edu ; Internet Ancient History Sourcebook: Late Antiquity sourcebooks.fordham.edu ; “Outlines of Roman History” by William C. Morey, Ph.D., D.C.L. New York, American Book Company (1901) ; “The Private Life of the Romans” by Harold Whetstone Johnston, Revised by Mary Johnston, Scott, Foresman and Company (1903, 1932); BBC Ancient Rome bbc.co.uk/history/ ; Project Gutenberg gutenberg.org ; Metropolitan Museum of Art, National Geographic, Smithsonian magazine, New York Times, Washington Post, Los Angeles Times, Live Science, Discover magazine, Archaeology magazine, Reuters, Associated Press, The Guardian, AFP, The New Yorker, Wikipedia, Encyclopædia Britannica, Encyclopedia.com and various other books, websites and publications.

Last updated October 2024