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The Visigothic Code: (Forum judicum)

ed. S. P. Scott



Book III: Concerning Marriage

Title IV: Concerning Adultery

[94]
I. Where a Woman Commits Adultery with, or without, the Connivance of her Husband.
II. Where a Girl or a Woman who has been Betrothed is found Guilty of Adultery.
III. Concerning the Adultery of a Wife.
IV. Where an Adulterer, along with an Adulteress, is Killed.
V. Where her Father, or her Relatives, Kill a Girl who has been Guilty of Adultery in their House.
VI. It is not Lawful for Slaves to put Persons to Death who are taken in Adultery.
VII. Where a Girl, or a Widow, goes to the House of Another, in order to comnuit Adultery, and The Man should wish to Marry Her.
VIII. Where a Freeborn Woman commits Adultery with Any One.
IX. Where a Freeborn Woman commits Adultery with the Husband of Another.
X. Slaves of Both Sexes may be Tortured to reveal the Adultery of their Masters.
XI. Whether it shall be Lawful to set a Slave at Liberty, in order to Conceal the Crime of Adultery.
XII. Concerning the Property of Husbands or Wives who have committed Adultery.
XIII. Concerning those Persons who have a Right to bring Accusations of Adultery, and what Proof of the Crime should be Made.
XIV. Where a Freedman, or a Slave, has been Convicted of having committed Adultery, with Violence, upon a Freeborn Virgin, or Widow.
XV. Where a Freeman, or a Slave without the Knowledge of his Master, commits Adultery with the Female Slave of Another.
XVI. Where a Female Slave is proved to have committed Adultery with Another by Force.
[95]
XVII. Concerning Freeborn Women, or Female Slaves, of Bad Character; and Where Judges Refuse to Investigate, Punish their Crimes.
XVIII. Concerning the Impurity of Priests and other Ministers of Religion.

ANCIENT LAW.
I. Where a Woman Commits Adultery with, or without, the Connivance of her Husband.

If any one should have intercourse with the wife of another by force, and the party who committed the crime should have legitimate children by a former marriage; he himself, without his property, shall be delivered up to the husband of the woman. But if he should have no legitimate children to whom his property can legally descend, he shall be surrendered, with all his possessions, into the power of the husband, to be disposed of at his pleasure. And if the woman should have consented to the act, both of them shall be delivered up to the husband.

ANCIENT LAW.
II. Where a Girl or a Woman who has been Betrothed is found Guilty of Adultery.

If a marriage contract has been entered into between an intended husband and the parents of an intended wife; or with the woman herself, if she has the right to make the contract; the dowry being duly given, and an agreement made in writing, before witnesses, according to custom, and as is prescribed by law; and, afterwards the girl or the woman is convicted of having committed adultery, or of having betrothed herself to another man, or of having married, she, along with her unlawful husband, or adulterer, or betrothed to whom she has given herself contrary to her solemn agreement, shall be delivered up as slaves, with all their property, to the person to whom she was first betrothed; in case the adulterer, or violator of the law, should have no children by a former marriage, or the woman herself should not have any. [96] But if it should be proved that they have legitimate children, then all their possessions shall belong to those children. But the man and the woman who have committed adultery, or have betrothed themselves, or have married, shall both be delivered up as slaves into the power of him to whom the aforesaid woman bound herself by her marriage contract.

ANCIENT LAW.
III. Concerning the Adultery of a Wife.

If the wife of any one should commit adultery, and not be caught in the act, her husband may accuse her before a judge by the introduction of competent evidence. And if the adultery of the woman should be plainly manifest, both adulterer and adulteress, according to the provisions of a former law, shall be given up to the husband, to be disposed of in any way he may select.

ANCIENT LAW.
IV. Where an Adulterer, along with an Adulteress, is Killed.

If the husband, or the man who was betrothed to the woman, should kill the adulterer along with the adulteress, it shall not be considered criminal homicide.

FLAVIUS RECESVINTUS, KING.
V. Where her Father, or her Relatives, Kill a Girl who has been Guilty of Adultery in their House.

If a father should kill his daughter, while she is in the act of committing adultery in his own house, he shall be liable to no penalty or reproach. But if he should wish to spare her life, he shall have full power to dispose of her and the adulterer, according to his will. Likewise, her brothers or her uncles, after the death of her father, shall have the same power.
[97]

ANCIENT LAW.
VI. It is not Lawful for Slaves to put Persons to Death who are taken in Adultery.

While parents have the undoubted right to kill adulterers caught in their houses, slaves have no such authority. But if slaves should discover them, they may keep them in honorable custody, until they can be delivered over to the master of the house, or to the judge; and, after having been found guilty by reliable evidence, the legal penalty shall be inflicted upon them.

ANCIENT LAW.
VII. Where a Girl, or a Widow, goes to the House of Another, in order to commit Adultery, and the Man should wish to Marry Her.

If a freeborn girl, or a widow, should go to the house of another for the purpose of committing adultery, and the man who is implicated should wish to marry her, and her parents, if she has any, should acquiesce; he shall give to the parents of the girl as large a sum as they may demand, or as much as shall be agreed upon between him and the woman herself. But the woman shall not share with her brothers in the inheritance of her parents, unless the latter desire it.

ANCIENT LAW.
VIII. Where a Freeborn Woman commits Adultery with Any One.

If any freeborn woman should be detected in having voluntarily committed adultery with any man, and if, afterwards, he should wish to marry her, he shall be permitted to do so. But if he should be unwilling, she shall be considered guilty of having voluntarily committed a crime.
[98]

ANCIENT LAW.
IX. Where a Freeborn Woman commits Adultery with the Husband of Another.

If any freeborn woman should commit adultery with the husband of another, and should be convicted of it by conclusive evidence, she shall be surrendered to the wife of the husband with whom she was guilty, that the revenge of the woman injured may be fully satisfied.(1)

ANCIENT LAW.
X. Slaves of Both Sexes may be Tortured to reveal the Adultery of their Masters.

In order to prove the commission of adultery by either a master or a mistress, their slaves of both sexes may be put to the torture, in order that the truth may be the more certainly discovered and established, beyond question.
[99]

ANCIENT LAW.
XI. Whether it shall be Lawful to set a Slave at Liberty, in order to Conceal the Crime of Adultery.

If any one, for the sake of concealing the truth, and for fear a slave may be tortured in order to prove an act of adultery, should liberate that slave, his act shall be void.

XII. Concerning the Property of Husbands or Wives who have committed Adultery.

We have already decreed, by a former law, that an adulterous wife, as well as the adulterer, shall be delivered up to her husband. And, because doubt concerning the disposition of their property may sometimes arise in the minds of the judges, therefore we consider it necessary to especially provide, that if the adultery of the wife should be manifest upon evidence introduced by her husband, and if neither adulteress nor adulterer should have legitimate children by a former marriage, the entire inheritance of both of them, along with their persons, shall be delivered up into the power of the husband of the woman. But if the adulterer should have legitimate children by a former marriage, his property shall belong entirely to them, and only his person shall be surrendered to the husband of the adulteress. But if the adulterous wife should be known to have legitimate children, either by a former. or later marriage, the portion belonging to the children of the former marriage shall be set apart and delivered to them; but the husband shall have the portion which would otherwise belong to her children born after she had been convicted of adultery, and he may bequeath it, after his death, to those children. And, after the adulterous wife has been brought back into the power of her husband it shall not be lawful for any marital relations to exist between them. If, in violation of this, such relations should thereafter exist, he himself shall have none of her property, and all of it shall be given to her legitimate children; or, if there are no children, to her other heirs. A similar decree is hereby made concerning persons who have been betrothed.
[100]

FLAVIUS CHINTASVINTUS, KING.
XIII. Concerning those Persons who have a Right to bring Accusations of Adultery, and what Proof of the Crime should be Made.

If the law does not punish the perpetrators of crime, their audacity will have no bounds. For this reason, and because certain wives who hate their husbands abandon themselves to adultery, and so affect the minds of their husbands, either by the administration of drugs, or by the devices of witchcraft, that they are unable to publicly accuse their wives or to leave them, on account of the affection they bear them; therefore, in such cases it is hereby decreed, that if the adulterers or her husband have any legitimate sons who are of age, it shall be lawful for them to act in the place of the husband and to prove the fact of adultery in court. But if there are no sons, or they have not the proper age or experience to conduct this matter lawfully; in order that there may be no delay in the punishment of adultery; or for fear that the adulteress may kill her husband; or her children or relatives may, for this reason, be deprived of her property; it is hereby decreed that the relations of the husband, shall have the power, under such circumstances, of accusing the said adulteress. And if, after accepting this trust, the adultery of the woman should be plainly proved in court, then both parties who have been convicted of this crime shall be at once given up, with all their property, to serve as slaves those who, according to the provisions of the law, have proved this accusation.

We make, however, an exception in favor of such as have manifested signs of repentance, and seem to be worthy of pity; and we hereby decree that they shall receive the punishment of the scourge. And if the sons of the adulteress were not of sufficient age, at the time the crime was committed, to appear in court, the relatives of the husband, after the death of the latter, if there are no sons, shall be entitled to the property of the woman. If the sons should be unwilling, or not of a sufficient age or experience to prosecute the adulteress; [101] then the nearest relative of the husband, who produced evidence of the crime, shall have the fifth part of the property of the adulteress for his pains, and the other four-fifths shall belong to the sons aforesaid. If there should be any lukewarmness on the part of the relatives, or negligence on the part of the sons, or if the parties should be corrupted by gifts; the conduct of such matters shall not be committed to persons of this character; and should the cause come to the knowledge of the king, he shall determine, according to his mercy, either by whom the case must be prosecuted, or how much of the property of the woman the prosecutor shall have as a fee for his trouble. But because it is difficult to prove the adultery of a woman by the evidence of persons who are free, as generally this crime is perpetrated in secret; henceforth, whenever the evidence of a freeborn person is not available to prove adultery, it shall be lawful for the person aforesaid, to whom it is granted by the present law to bring an accusation of this kind, to put the slaves of both parties to the torture, that the crime may be proved in court.

ANCIENT LAW.
XIV. Where a Freedman, or a Slave, has been Convicted of having committed Adultery, with Violence, upon a Freeborn Virgin, or Widow.

If any one should compel a virgin or widow, who is freeborn, to commit adultery or fornication; if he should be freeborn, he shall be scourged with a hundred lashes, and be given forever to serve as a slave her whom he has injured. A slave convicted of such a crime shall be burned. And a freeman who has been proved to be guilty of a crime of this kind, shall never be permitted to marry her whom he has violated. But if the woman herself, after she has received the man as a slave, should marry him, she shall then undergo the penalty of her base action, and shall, along with all her property, be delivered over to her own heirs, to forever serve as a slave.
[102]

ANCIENT LAW.
XV. Where a Freeman, or a Slave without the Knowledge of his Master, commits Adultery with the Female Slave of Another.

If any one should be convicted of having committed adultery with a female slave outside the house of her master, the latter shall have the power of punishing only the female slave. Where either a freeman or a slave is convicted of the commission of such a crime with a female slave in the house of her master; if he should be freeborn, and the slave of good reputation and superior rank, he shall receive a hundred lashes, without any imputation of infamy. If the slave is of inferior rank, she shall receive fifty lashes; and a male slave, guilty of such an offence with the female slave of another, shall receive a hundred and fifty lashes.

ANCIENT LAW.
XVI. Where a Female Slave is proved to have committed Adultery with Another by Force.

If any one should violate the person of a female slave, and should be seized in the house of her master; or if he should be convicted of having committed the crime anywhere else; if a slave, he shall receive two hundred lashes; if a freeman, fifty; and the latter shall be compelled to pay, in addition, thirty solidi to the master of the female slave. But if the master should have ordered the slave to commit the act, the latter shall undergo the penalty and scourging prescribed by a former law.
[103]

ANCIENT LAW.
XVII. Concerning Freeborn Women, or Female Slaves, of Bad Character; and Where Judges Refuse to Investigate or Punish their Crimes.

If any freeborn girl or woman should publicly practice fornication, be known as a harlot, and be shamelessly given to soliciting men; after having been arrested by the governor of the city, she shall receive in public two hundred lashes, and shall be sent away, under the condition that she shall not, afterwards, be guilty of similar conduct, or ever again enter the city. And if she should ever return, she shall be sentenced by the governor to receive three hundred hashes more, and shall be given as a slave to some pauper and never be permitted to go freely about the city again. And if she should admit that she has pursued her evil life with the knowledge of her father and mother, and thus should seem to have acquired her degradation through association with her parents, and her father and mother should be convicted of having had such guilty knowledge; each of them shall receive a hundred lashes.

If a female slave should be convicted of leading such a life, she shall be arrested by order of the judge; shall receive three hundred lashes in public; and, having had her head shaved, shall be returned to her master, with the understanding that he will cause her to he removed to such a distance from the city, or will sell her in such a locality, that she shall be unable to return. But if he should be unwilling to send her away, or to sell her, and she should return, he shall receive fifty lashes in public; and the said female slave shall be given to some pauper whom the king, judge, or governor may select, with the admonition that she be not again permitted to enter the city. If she should declare that she had acted with the consent of her master, gaining money for him through her vicious practices, and he should be publicly convicted of this, he shall receive the same number of lashes as she would otherwise have received.
[104] And, in like manner, we decree that all others should be dealt with, who either in villages or towns, have been arrested for similar crimes. If any judge should be unwilling to investigate such offences, or prosecute, or correct them, he shall receive a hundred lashes by order of the governor of the city, and shall pay thirty solidi to him whom the king shall designate.

FLAVIUS RECESVINTUS, KING.
XVIII. Concerning the Impurity of Priests and other Ministers of Religion.

As sacred authority demands purity of life, so it should also be required of its ministers; and it is our duty to put an end to all unlawful conduct, and attempt to act in compliance with the Divine commandments. Therefore, if it should be established by undoubted evidence, that any priest, deacon, or sub-deacon, has married or committed fornication or adultery with a widow doing penance, a virgin, a wife, or any other woman, as soon as the fact shall come to the knowledge of the bishop, or the judge, he shall put an end to such a connection at once.

When the offender has been brought back under the power of his ecclesiastical superior, he shall be placed in confinement, and compelled to do penance according to the holy canons of the Church; and if the bishop, through indulgence, should neglect to place him under restraint as aforesaid, he shall pay two pounds of gold to the royal treasury, and shall no longer be permitted to delay the punishment of the offender. Where the bishop is unwilling to act, he shall either call a council, or bring the matter to the attention of the king.

Such women as are implicated in the aforesaid enormities, shall be given a hundred lashes by order of the judge; and all access to them shall be prohibited; and the law, as established by the canons of the Church concerning this offence, shall be enforced by the bishops. In avenging such crimes, we do not grant the right to accuse or punish to every one [105] indiscriminately, unless the proof should be overwhelming, or the guilt of the parties fully established; as we disclaim all intention of opposing the precepts of the Holy Fathers, or of violating, in any way, their ancient and sacred privileges.(2)


Notes for Book III, Title IV

1. No one can doubt that, under such conditions, it was "fully satisfied." This is another instance where the punishment of a personal injury was regarded, not as an offence against the community, and a breach of good morals, but as a case demanding private retribution, as is specifically stated in the law itself.

The distinctions between the crimes of rape, adultery and fornication, as now established, are not clearly set forth in the Visigothic Code. Intercourse with a widow is designated adultery. The rape of a woman of any condition, is frequently called adultery with violence. The excessively harsh penalties prescribed for such offences, and which, as a rule, were only limited by the caprice or compassion of the party injured, are a relic of the customs of the Northern barbarians, with whom female chastity was as much the rule as, on the other hand, it was the exception among the warmer-blooded nations of Southern Europe. Most of the laws relating to crimes against women are termed "ancient," showing their derivation from a remote antiquity, or Roman origin. -- [ED.

2. The extraordinary leniency shown by this law to ecclesiastical culprits, as compared with laymen guilty of the same offence, openly displays the bias of the legislative power. There was one rule for the priest, and another, and a very different one, for his parishioners. It will be noted, also, that no provision is made for the punishment of the higher clergy; while it was notorious that the bishops and metropolitans were the greatest of all offenders, where women were concerned. As they framed the laws which governed the people, and were presumed to receive their inspiration from heaven, they naturally came to regard themselves as above their own decrees, and not liable to their penalties and restrictions. The dissolute character of the priesthood in those times, and long subsequently, is well known to every student of history. The indulgence with which the bishop was accustomed to regard the failings of his subordinates is disclosed by the fine imposed upon him for neglect to discipline the former. No mercy is shown to the women involved, and, what is unusual, no distinction is made where the latter belong to different castes, or stations in society. It is probable that this law, so far as the punishment of the clergy was concerned, "was more honor'd in the breach than the observance." -- [ED.