CASE 51: Killing the Adulterer...

D. 48.5.25 pr.-1 (Macer libro primo Publicorum )

(pr.) Marito quoque adulterum uxoris suae occidere permittitur, sed non quemli­bet, ut patri: nam hac lege cavetur, ut liceat viro deprehensum domi suae (non etiam soceri) in adulterio uxoris occidere eum, qui leno fuerit quive artem ludicram ante fecerit in scaenam saltandi cantandive causa prodierit iudiciove publico damnatus neque in integrum restitutus erit, quive libertus eius mariti uxorisve, pa­tris matris, filii filiae utrius eorum fuerit (nec interest, proprius cuius eorum an cum alio communis fuerit) quive servus erit.

(Macer in the first book of his On Public Trials)

(pr.) A husband is also allowed to kill his wife’s adulterer, but, unlike with her father, not just any (adulterer). For the statute (the lex lulia on adultery) pro­vides that the husband is permitted to kill a man taken in his home—but not in his father-in-law’s home—while in the act of adultery with his wife, provided that this man is a pimp or was previously an actor or went on the stage to dance or sing or was condemned in a public (criminal) trial and has not been restored to his former state or is the freedman of the husband or wife or of one of their parents or children—nor does it matter whether the slave was entirely theirs or held in common with another—or is a slave. (1) And it orders a husband who kills any of these persons to divorce his wife promptly.

1.      Legal Murder? It had long been customary at Rome for the husband to take some form of vengeance on an adulterer, but the lex lulia made this a matter of law. As this Case shows, the right is severely restricted: the adulterer must be caught in the act, and in the husbands home; further, the adulterer must fall into one of the unprotected classes.

2.      Outside the Rules. If the killing violated the rules, it was homicide; the Em­peror Alexander (reign: A.D. 222-235; C. 9.9.4.1), however, adds with regard to a particular case: “If, exceeding the law's authorization, he killed the adul­terer out of unthinking anger, although he committed homicide, still because both the night and his legitimate anger mitigated his act, he can be sent into exile” instead of suffering capital punishment. For similar leniency from Mar­cus Aurelius, see Paul, Coll. 4.3.6. In situations where the husband was not al­lowed or did not wish to kill the adulterer, the lex lulia permitted him to forcibly detain the adulterer for up to twenty hours in order to coerce a con­fession (Ulpian, D. 48.5.26 pr.).