Some Remarks on the Criminal Liability of Slaves Based on Lex Iulia de adulteriis coercendis

The purpose of this article is to attempt to answer the question whether a slave or female slave were criminally responsible for adultery. The Lex Iulia de adulteriis coercendis promulgated in 18 B.C., belonged to the so-called Augustan marriage legislation, introduced the term adulterium understood as a crime of public law. This law was very widely commented on by Roman jurists. However, the opposite views on the criminal liability of slaves under this statute are noticed in accessible legal sources. In the literature devoted to the Julian Act, this issue has not been sufficiently analyzed.


INTRODUCTION
The statute Iulia de Adulteriis Coercendis was promulgated in 18 B.C. and was aimed to penalize socially unacceptable sexual relations, as well as behaviours related to adultery and fornication. This statute repealed the existing regulations in this area and it introduced the concepts of adultery and stuprum, recognizing these actions as public crimes. The reasons for the introduction of lex Iulia that belongs stuprum was used in a broad sense to describe abusive behaviour, which would justify the jurist's remark about terminological inaccuracies". 4 This observation is confirmed by Modestinus' testimony: D. 50.16.101 pr.: Modestinus libro nono differentiarum: Inter "stuprum" et "adulterium" hoc interesse quidam putant, quod adulterium in nuptam, stuprum in viduam committitur. sed lex iulia de adulteriis hoc verbo indifferenter utitur. 5 It is worth mentioning, however, that in the sources quoted further, regarding the criminal liability of slaves under the Julian statute, the term adulterium is used on a regular basis.
Referring to the subjective scope of the Julian statute, one should, first of all, cite Papinian's statement: D. 48.5.6 pr.: Papinianus libro primo de adulteriis: Inter liberas tantum personas adulterium stuprumve passas lex iulia locum habet. quod autem ad servas pertinet, et legis aquiliae actio facile tenebit et iniuriarum quoque competit nec erit deneganda praetoria quoque actio de servo corrupto: nec propter plures actiones parcendum erit in huiusmodi crimine reo. 6 So, at least in Papinian's view, the crimes provided by the statute could be committed only by free people. According to the Julian statute, adultery could only be committed by a married woman (who had the status of materfamilias or not) or by a woman cohabiting with her patron. Whereas the prerequisites of stuprum were fulfilled by sexual intercourse with a virgin or a widow (having the status of materfamilias). 7 The term materfamilias used in lex Iulia meant not only a married woman, but also a widow 8 and it referred to the women of good morals whose attribute was honestas. 9 The Roman law scholars expressed the opinion that the term adulterium was applied to any intercourse with a woman who was in any 4 D. Stolarek, Ustawa julijska…, p. 220. 5 "Modestinus, Distinctions, Book 9: Some people think that there is this difference between 'debauchment' and 'adultery', that adultery is committed against a married woman, debauchment against a widow, but the lex Iulia on adultery uses this word indifferently". 6 "Papinian, Adulterers, Book 1: The lex Iulia applies only between free persons who have suffered adultery or stuprum. But as far as female slaves are concerned, an action under the lex Aquilia will readily apply and that for injuria is also competent, nor must the praetorian action for the corruption of a slave be refused; nor shall someone accused of this kind of offence be spared because of the many actions [ relationship with a man, including a relationship prohibited by law, such as incestuous one. 10 As to the possibility of accusing the man of adultery, Papinian said: D.48.5.12.4: Papinianus, libro singulari de adulteris: Adulterii reum intra quinque annos continuos a die criminis admissi defuncta quoque muliere postulari posse palam est. 11 While referring to the status of men under the Julian statute, it should be pointed out that the prevailing view in the literature is that from the point of view of lex Iulia, the status of a man was irrelevant for the qualification of action as adultery. 12 However, it is necessary to consider whether the status of a man was only relevant to the qualification of the act of a woman as adulterium committed with that man, or whether it was relevant to the possibility of a man being charged. Thus, whether the question of the status libertatis of a man as a co-perpetrator of the adulterium was, or became important over time, allowing the initiation of a criminal trial also against the slave.
The purpose of these considerations is therefore to answer the question whether the slave may have been accused of adultery in a criminal trial or whether the slave was only a subject to the jurisdiction exercised by the owner under dominica potestas. It is difficult to answer this question on the basis of testimonies contained in the sources analyzed below. Sources directly or indirectly related to this issue are arranged in a certain sequence. Papinian's quoted opinion shows that the Julian statute was applicable only to free people who have committed the crime of adultery or fornication. However, Ulpian speaks clearly: servos quoque adulterii posse accusari nulla dubitatio est. 13 In his opinion, there is no doubt that a slave can be accused of adultery. Moreover, Ulpian mentions the slave accused of adultery when discussing the practice of torturing the slaves: D. 48.5.28 pr.: Ulpianus libro tertio de adulteriis: Si postulaverit accusator, ut quaestio habeatur de servo adulterii accusato, sive voluit ipse interesse sive noluit, iubent iudices eum servum aestimari, et ubi aestimaverint, tantam pecuniam et alterum tantum eum, qui nomen eius servi detulerit, ei ad quem ea res pertinet dare iubebunt. 14 10 M. Zabłocka, Początki przedawnienia ścigania przestępstw w rzymskim prawie karnym, "Zeszyty Naukowe Uniwersytetu Rzeszowskiego" 2018, no. 101, pp. 178-189. 11 "It is clear that a man charged with adultery can be prosecuted within the five years following the date of the offence being committed, even though the woman is dead". 12 D. Stolarek, Adultera…, p. 197. See T.A.J. McGinn, Prostitution, Sexuality and the Law in Ancient Rome, New York 1998, p. 144. 13 "Ulpian, Adulteries, Book 3: There is no doubt that slaves also can be accused of adultery". 14 "Ulpian, Adulteries, Book 3: If an accuser demands that an interrogation [under torture] be made of a slave accused of adultery, whether he himself has wished to be present or not, the judges [shall] order that slave to be valued, and when they have valued him, they shall order the man who has named the slave in his accusation to convey to him to whom this matter pertains as much money [as the slave is worth] and as much again". The cited texts of Ulpian were already the subject of scholarly analysis regarding the criminal liability of slaves on the basis of lex Iulia. 16 The key question in this context is whether the Julian statute explicitly recognized the slave as a potential perpetrator of the adulterium, or whether the liability of the slaves developed later, and if so, as a consequence of what kind of circumstances.
When analyzing the quoted statements of both Papinian and Ulpian, one should first of all pay attention to the fact that slaves, at the time when the Julian statute was established, were not subject to state justice courts. Roman criminal law for a long time did not recognize slaves as a subject of public law offences. Slaves were punished for crimes by their owners as a result of the domestic judiciary (iudicium domesticum). 17 The owners of slaves had been entitled to ius vitae ac necis since archaic times. 18 On the other hand, the subjectivity of slaves as perpetrators of public crimes began to take shape only from the beginning of the 1 st century C.E. 19 The gradual development of their liability may be indicated by Senatus consultum from 20 C.E. ordering the treatment of slaves in criminal proceedings as free people. 20 Venuleius Saturninus talked about this decree in his monograph on public criminal proceedings, saying: "If a slave be cited as accused, the same procedures shall be observed as if he were a freeman in accordance with the Senatus consultum given in the consulship of Cotta and Messala". 22 However, in the criminal trials used slave testimonies, although they were never referred to as testes. As in W. Litewski,op. cit.,p. 94. There is also an abundant source of information about torture Pobrane z czasopisma Studia Iuridica Lublinensia http://studiaiuridica.umcs.pl Data: 02/09/2021 20:23:49 U M C S criminal liability, attention should also be paid to changes that have taken place in the area of Roman criminal jurisdiction. Crimes provided by the Julian statute were within the jurisdiction of the permanent tribunal -quaestio de adulteriis. 23 Quaestiones perpetue, jury tribunals, began to be created from the half of the 2 nd century B.C., replacing the iudicia populi and quaestiones extraordinariae. The first such tribunal was created on the basis of lex Calpurnia de repetundis in 149 B.C. 24 In the scholarly literature, the disadvantages of the quaestiones system are indicated. One of the disadvantages was that the tribunal could not assess the crime that was not penalized by the statute which was establishing particular tribunal. 25 For the purposes of this analysis, this means that if lex Iulia did not impose criminal liability for the act committed by a slave, then in the trial before the quaestio de adulteriis his accusation was impossible. Thus, not only the establishing of criminal subjectivity of slaves, but also the development of the system of criminal justice influenced the formation of slave liability based on the Julian statute. Already in the time of August, the extraordinary process (cognitio extra ordinem) started to develop and marginalized importance of the quaestiones perpetue. 26 Assuming that over time slaves also become liable under lex Iulia, it is worth to consider, whether slaves of both sexes were subjects to this liability. As for the male slave, the matter seems obvious. However, the question naturally arises, whether adultery could have been committed by a free woman having intimate intercourse with a female slave. This seemingly simple matter, however, seems to be quite complex. There is a well-established view in Roman law science that the status of a woman, as a criterion of criminal liability for crimes punished by the Julian statute, caused that she could not violate this law by having sex with a female slave. 27 The already mentioned Papinian wrote that in the case of female slaves complaints were used: actio legis Aquiliae, actio iniuriarum, actio servi corrupti. However, some terminological consideration should be added to the above. Modestinus noticed that servis legatis etiam ancillas deberi quidam putant, quasi commune nomen utrumque sexum contineat. 28 Ulpian uses the term servus in the texts cited above. However, only when adultery is considered heterosexual, then it should be assumed of slaves in criminal proceedings instituted for crimes criminalized by the Julian Act. Regarding the testimony of slaves in criminal proceedings, see E. Loska, Kilka uwag na temat zeznań niewolników w procesie karnym, "Zeszyty Naukowe KUL" 2017, no. 3, pp. 449-464. 23  that Ulpian uses the term servus in reference to a man. If it is assumed that the adulterium could be committed by a married woman through sexual contact with a female slave, then, in that case, one should consider the criminal liability of the female slave. However, this hypothesis does not appear in the scholarly literature, which is probably the result of the lack of sufficient sources concerning this issue.
As a side note, with respect to the liability of female slaves, it is also worth paying attention to the regulations contained in two texts quoted by Th. Mommsen. 29 The first one is the constitution of the Emperors Diocletian and Maximian from 291 C.E. 30 It contains the guidelines for imposing infamy in the case of maintaining sexual contact with female slaves. The content of this constitution shows that, in this case, the man was not a subject to infamy. However, the above-cited excerpt from Justinian's Code clearly indicates that Roman public law was not indifferent to the relationship of free men with female slaves. Besides, there are no grounds to state anything about the female slave's criminal liability. However, men having sexual contact with female slaves certainly did not incur criminal liability. From Paulus' testimony, it should be understood that in relation to female slaves one can speak only about the delictual liability of a person who, having sex with a slave girl, caused harm to her owner, thereby reducing the value of the female slave, or when such an attitude was directed against the owner himself. The jurist's position therefore matches Papinian's view cited above.
Moving on to the analysis of other available sources, one should point out an interesting decision comprised in the constitution of Emperors Diocletian and Maximian from 293 C.E., which also touches the issue of the slave's criminal liability for adultery. 31 The constitution deals with the procedural issues when the accused of adultery pleads in defense. From the content of the imperial constitution, it fol- lows that in such a case the defendant's status libertatis should first be examined and if it is established that he is a slave, then the procedural obstacle caused by the allegation will be removed, which will allow the slave to be tried and sentenced in the event that he is found guilty of the alleged crime.
Further sources are a good addition to the above-quoted statement of Ulpian, because their content shows that there is no doubt about the possibility of accusing the slave of adultery. It is therefore important to pay attention to Marcianus statement: D. 48.5.34 pr.: Marcianus libro primo de publicis iudiciis: Si quis adulterium a servo suo commissum dicat in eam, quam uxorem habuit, divus pius rescripsit accusare potius mulierem eum debere, quam in praeiudicium eius servum suum torquere.32 Marcianus explicitly refers to the situation when the slave is accused of committing adultery. This is indicated by the used wording: "[…] if someone accuses of committing adultery on his slave, with the one who was his wife". In the following part of his statement, Marcianus presents the following view: This statement does not directly refer to the key issue discussed in this article, but it is a helpful clue in determining whether the criminal liability of slaves was regulated in lex Iulia, or whether it was formed later, through the gradual formation of the subjectivity of slaves as perpetrators of public law crimes. Attention should be paid to the phrase used in this statement: Si quis adulterum non dimiserit … ex sententia legis tenetur, quamvis verbis non continetur. The jurist writes about the situation in which the victim of adultery "does not send the adulterer but stops him" (e.g., a slave) and is, therefore, punished in accordance with the statute, even if the statute does not mention who was detained. The jurist's remark may thus indicate the primary lack of regulation in lex Iulia of the issue of criminal liability of slaves for adultery. 32 "Marcianus, Criminal Proceedings, Book 1: The deified Pius wrote in a rescript that if anyone states that a slave of his own has committed adultery with her who was his wife, he ought rather to accuse the woman than to torture his slave as a preliminary to an action against her". 33  However, this does not also prejudge the possibility of accusing a slave of adultery in a public criminal trial. It should be borne in mind that the owners were entitled to punish their slaves for the crimes they committed within the scope of their dominica potestas. Paulus' quoted views concern the rights of the adulterer's father and the harmed husband to take advantage of their ius occidendi. 37 Nevertheless, it should be noted that Paulus allowed the applicability of ius occidendi against a slave who had committed adultery. Since ius occidendi was a right, the question arises: Could the father or the harmed husband be able to prosecute the slave if he did not exercise his right? For if the adulterer was not killed under ius occidendi, criminal proceedings could be instituted against him. It seems that the quoted 34 "Thus, the husband, even if he is a filius familias, is permitted, according to the Statutes, to kill a man whom he has taken in adultery in his house, if the adulterer is a slave, a paid gladiator, or one who has let out his services to fight with wild beasts". Translation of the cited fragments of Collatio Legum Mosaicarum et Romanarum is given after the English edition: Mosaicarum et Romanarum Legum Collatio, transl. M. Hyamson, Oxford 1913. 35 "An adoptive or a natural father is permitted to kill with his own hand the adulterer taken with his daughter in his house or in that of his son-in-law, whatever be the adulterer's rank".
36 "The husband has the right to kill the adulterer taken in the act only when he belongs to one of the following classes: Persons branded with infamy, public performers, slaves and freedmen. The wife is excepted by an express prohibition". 37 More broadly, see K. Amielańczyk,op. cit., Pobrane z czasopisma Studia Iuridica Lublinensia http://studiaiuridica.umcs. Despite the considerable amount of testimonies, especially those inserted by Justinian compilers in the Digest, regarding issues related to ius occidendi on the basis of lex Iulia, we do not find among them any that would explain procedural issues in the event of non-exercise of this right in relation to the slave.
An interesting view was expressed by Papinian in the 1 st Book of the monograph on adultery. The jurist writes as follows: Since adulterium and stuprum were offences of public law and their prosecution was carried out in a public trial, one may wonder whether the view expressed by Papinian as a general norm was also updated in the application of the Julian statute. It is also significant that Papinian's view was taken from his monograph on adultery. Papinian's message is about accusing a slave of committing a crime punishable by death. However, the death penalty for adulterers was only used since the time of Constantine the Great 40 -a contrario, at the time when Papinian was active, death penalty was not imposed on adulterers. There is no evidence from which it would appear that in the case of slaves such punishment was imposed in Papinian's time. Paulus mentions the death penalty for a stuprum committed with 38 "Macer, Criminal Proceedings, Book 1: A husband also is permitted to kill his wife's adulterer, but not, as a father is, whoever it may be; for it is provided by this statute that a husband is permitted to kill a man whom he catches in adultery with his wife in his own house (not also [in that] of his father--in-law) if the [paramour] is a pimp or if he was previously an actor or performed on the stage as a dancer or singer or if he has been condemned in criminal proceedings and is not yet restored to his former status, or if he is a freedman of the husband or wife or of the father, mother, son, or daughter of either of them (and it is of no consequence whether he was the sole property of one of them or was owned jointly with someone else) or if he is a slave". More broadly, see K. Amielańczyk,op. cit.,p. 120. 39 "If a slave be accused on a capital charge, the statute on criminal proceedings provides that bail must be pledged for his appearance either by his master or by another; but if he is not defended, he is required to be thrown into a public prison so as to plead his case in chains". 40  In turn, the aforementioned Venuleius Saturninus in the 2 nd Book of the monography on public criminal proceedings expressed the view that slaves can become accused under all statutes, except of those which were explicitly enumerated by the jurist or those which provide the penalties that do not apply to the slave, such as relegation. Importantly, lex Iulia was not mentioned by the jurist in the exclusion catalog: Hence, it can be concluded that the jurist's statement is not explicit, but nevertheless indicates the admissibility of the slave's charge of adultery.
The constitution of Emperor Constantine on punishment for adultery committed with a slave, provided in the title De mulieribus quae se servis propriis junxerunt belonging to the 9 th Book of the Theodosian Code, also provides some clues. 44 According to it, the relationship of a free woman with a slave was prohibited by law. The constitution states that anyone could bring charges of adultery. Both the 41 PS. 2.26.12 = Coll. 5.2.1: "He who debauches a free male against his will shall suffer capital punishment". 42 As in K. Amielańczyk,op. cit.,p. 294. 43 "Slaves are liable to be charged under all laws except the lex Iulia de vi privata, because those condemned under that law are punished by the confiscation of one third of they property, a penalty which does not apply to a slave. The same must be said of other laws under which a pecuniary penalty is inflicted, or even a capital penalty, such as relegation, which is not suitable as a penalty for a slave. Again, the lex Pompeia on parricide is not [applicable] since its first chapter covers those who have killed their parents, blood relations, or patrons; so far as the words go these do not apply to slaves, but when the essence of the case is the same, a similar punishment will be imposed on them also. Again, under the [lex] Cornelia on injuria, Cornelius Sulla was the authority [for saying] that a slave should not be accused; but a more severe penalty extra ordinem will threaten him". See R.A. Bauman,op. cit.,p. 117. 44  woman and the slave were punished with death. The phrase servus etiam, qui in adulterio dominae convictus fuerit, ignibus exuratur was used here. It does not mean upon the content of the constitution that the accusation could only be brought against adulterers. It is therefore justified to conclude that the accusation of a slave was also admissible.
An excellent illustration of the problem is the divorce of Emperor Nero and Octavia. 45 Briefly, the facts were as follows. One of Octavia's servants reported her alleged relationship with the slave Eucareus. Eucareus was accused of adultery, and as noted by A. Tarwacka, it should be concluded from Tacitus that a criminal trial was carried out in this case. 46 Tacitus writes: "Her waiting-maids, in pursuance of the scheme, were examined under torture; and, although a few were forced by their agony into making groundless admissions, the greater number steadfastly maintained the honour of their mistress". 47 Failed to prove guilt of Octavia. Still, as Tacitus writes, "she was removed, however, first under colour of a civil divorce, […]. A little later, she was banished to Campania and put under military supervision". 48 Then Nero brought Octavia to Rome, where he accused her again of adultery, urging Prefect Anicetus to plead guilty. Suetonius writes about this matter rather laconic: