Page:Bury J B The Cambridge Medieval History Vol 2 1913.djvu/134

106 Adultery could be charged only by the nearest relatives: husband, father, brother, uncle, first cousin. The husband had precedence for sixty days, then the father having the woman in his power, then after the like time outsiders, who however could not accuse her while married, unless the adulterer had first been convicted.

A father was justified in killing his daughter (if in his power) if he caught her in adultery at his or his son-in-law's house, and in killing the adulterer also, but if he killed one and spared the other, he was liable for murder. A husband was justified in killing his wife so caught, but the adulterer only if he was a slave or freedman or pander or player or a condemned criminal. The husband was otherwise bound to repudiate his wife at once. Justinian (542) justified a husband's killing anyone suspected of illicit intercourse with his wife, if, after sending her three warnings supported by evidence of trustworthy persons, he found her conversing with the adulterer in his own or her house or in taverns or suburban places. For making assignations in church the husband after like warnings could send both the wife and man to the bishop for punishment as adulterers according to the laws.

A husband who retained a wife detected in adultery, or compounded for her release, was guilty of pandering. So also was anyone who married a woman convicted of adultery. One accused of adultery and escaping, if he consorted with the woman again, was to be seized by any judge and without further trial to be tortured and killed.

By a law of Augustus (Lex Julia) the punishment for adultery was banishment, and for the man, forfeiture of half his property, for the woman, forfeiture of half her dowry and a third of her property. Constantine and Justinian made the punishment death by the sword for the man. Justinian (556) sent the woman into a monastery after being flogged. The like punishments were ordained for stuprum, i.e. intercourse with an unmarried woman or widow, who was neither in the relation of concubine nor a person of disreputable life.

Anyone who without agreement with her parents carried off a girl was to be punished capitally, and the girl herself if she consented. A nurse who persuaded her to do so was to have her throat and mouth filled with molten lead. If the girl did not consent, she was still deprived of right of succession to her parents for not having kept within doors or raised the neighbors by her cries. The parents, if they overlooked the matter, were to be banished: other assistants to be punished capitally, slaves to be burnt. So Constantine in 320. Constantius limited the penalty of free persons to death (349). Eventually Justinian punished ravishers and their aiders with death and confiscated their property for the benefit of the injured woman.

were not the same for all persons. Three classes of persons were recognised in Justinian's Digest: honestiores, humiliores or tenuiores, servi.