Chapter XIX: Book III: Concerning Marriage (2)

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 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.[19]

TITLE V. CONCERNING INCEST, APOSTASY AND PEDERASTY.

=I.= _Concerning Incestuous and Adulterous Marriages in
General._

=II.= _Concerning Incestuous and Adulterous Marriages and
Debauchery, either with Holy Virgins, or with Widows
and other Women while doing Penance._

=III.= _Concerning Men and Women who Illegally Assume the
Tonsure and Dress of Religious Orders._

=IV.= _Concerning the Restraint of Fraud Peculiar to Widows._

=V.= _Concerning Pederasty._

=VI.= _Concerning Sodomy, and the Manner in which the Law
should be Enforced._

=VII.= _Concerning Adultery committed with the Concubine of a
Father, or a Brother._

=FLAVIUS CHINTASVINTUS, KING.=

=I. Concerning Incestuous and Adulterous Marriages in General.=

No one shall marry, or maintain incestuous relations with, any woman belonging to the family of his father, or his mother; or of his grandfather, or his grandmother; or with the betrothed of his brother, or the widow of any of his relatives. Therefore, it shall not be lawful to defile the blood of such as are related even to the sixth degree, either by marriage or otherwise; those persons only being excepted, who have been married with the permission of the king, before the making of this law, and the said persons shall, in no way, be affected by its provisions. This law shall also apply to women. If any person should violate it, the judge shall immediately order them to be separated, and shall cause them to be placed in monasteries, according to their sex, there to perform perpetual penance. The disposition of the property of these offenders has been provided for by another law.

=FLAVIUS RECESVINTUS, KING.=

=II. Concerning Incestuous and Adulterous Marriages and Debauchery, either with Holy Virgins, or with Widows and other Women while doing Penance.=

It is our royal duty to promulgate laws to be enforced throughout all the provinces of our kingdom, to the end that crime may be prevented in the future, and that justice may put an end to the deeds of the wicked. Many persons, in defiance of the admonitions of the Divine Law, and in opposition to the honorable duties of life, are accustomed, either by violence, or with consent, to contract marriage with virgins who have been devoted in the service of God, and have taken the vow of chastity with the benediction of the priest, and according to the canons of the Church; or with other women nearly related to themselves; and, in this way, have polluted with vice that chastity which was dedicated to God, or which should have been respected on account of the ties of consanguinity. Such conduct, whether it relates to men or women, is both abhorrent to good morals, and a reproach to the True Faith. Therefore, in the name of God and the Holy Catholic Church, we decree that, hereafter, as is also provided by the ecclesiastical canons, no one, either by force or consent, shall take as a wife, any virgin devoted to God, or any widow who has assumed the habit of any order; or any one who is performing penance; or any near relative of their own; or any one with whom his connection might be branded with infamy; because that cannot be a true marriage, which from good becomes evil, and which, under a false name, is nothing more than incest and fornication. And if any other persons in our kingdom should attempt to commit a crime of this kind, they shall be separated, and condemned to perpetual exile, at the instance of the judge or priest, even if no one should accuse them; nor shall any time which may have elapsed, be pleaded in their defence.

The property of such persons which has been seized for the crime, shall belong to the children of a former marriage; and if there should be no such children, to those born of this marriage; and the latter shall not be liable to reproach on this account, for those who are born out of wedlock are purified by the ceremony of baptism. But if there should be no children whatever, the inheritance shall descend to those to whom the provisions of former laws have given legitimate succession. The same regulation shall apply to persons in orders, whom the Canon Law forbids to marry.

Those women are excepted from this decree who have been forced into marriage, and have not subsequently given their consent thereto. Any judge, or priest, who is aware that such an offence has been committed, and neglects to punish it, shall be compelled to pay five pounds of gold to the royal treasury; and, in case he should not be able or willing to inflict such punishment, he shall bring the matter before the king, in order that he may impose the penalty which is not in the power of the magistrate or priest to inflict.

=FLAVIUS CHINTASVINTUS, KING.=

=III. Concerning Men and Women who Illegally Assume the Tonsure and Dress of Religious Orders.=

We should eradicate the reproach of apostasy, in order that we may enjoy the favor of God. For if we think it is an evidence of piety to punish sins of less importance, to a much greater extent should we visit with severe censure any crime committed against the Divine Power. Therefore, we decree by this law, which shall remain perpetually in force hereafter; that whoever adopts the dress of a religious order, and assumes the honorable mark of the tonsure, either for the purpose of performing penance, or through the pious wishes of parents, and without any suspicion of fraud; or through their own will and devotion to the Church; and afterwards, apostatizing, resumes intercourse with the laity; shall, at the instance of any one, be brought again by force under the control of the religious order to which they belong; and, branded with infamy, shall be forever confined in monasteries, and subjected to the severest penance. In cases of this kind, indulgence shall only be shown to those who have been influenced by the deceit of others, or such as have returned to the order of their own accord; provided that among such persons a man has not taken another wife, or a woman another husband. And those also shall be exempt from the operation of this law, who assumed their vows when they neither knew what they were doing, nor remembered what they had done. The property of persons practising such deception shall belong to their sons and their relatives, as follows: if the man is married and has children, and should have received any gift from his wife, it shall be transferred to her, and, after her death, shall descend to their children. But if she should be dead, or they should have no children, the lawful heirs of the offender shall have the property. But whatever, at any time, the husband received through his wife, shall belong to her nearest heirs.

This law shall also apply to women; for instance, where any virgin or widow, as a penitent lays aside the clothing of the laity, and afterwards resumes it; or marries; she shall undergo the same penalty and loss of property as has been decreed concerning men, to wit: the children and heirs of such a woman shall have her property. The relatives of a husband, however, shall be entitled to any gift previously presented by him to his wife. And, since women are more frequently involved in the fraud of apostasy, we hereby decree that whatever should be given by a man to his betrothed, or to his wife, before or after the nuptials, by way of dowry, shall belong, not to the heirs of the wife, but to the heirs of him who gave the dowry. Persons guilty of such offences shall not have the right to accuse any one, or to testify, or to transact any business whatever in court; because those cannot be trusted in secular matters, who have been proved guilty of sacrilege in affairs relating to our Holy Religion.

=FLAVIUS EGICA, KING.=

=IV. Concerning the Restraint of Fraud Peculiar to Widows.=

Certain widows are accustomed to shrewdly mingle fraud with devotion, and, by the union of religious and secular garments, give themselves an opportunity for transgression at their will. Thus, during the time of their mourning, they put on a religious dress; and, afterwards, for purposes of deception, put on other garments under the religious habit; and for this reason, to those who see them, appear other than what they are. Wherefore, that an end may be put to fraud of this kind, we decree, by this law, that hereafter, when any widow wishes to excuse herself for practising this deception, that within she wears one kind of dress, and outside another; that portion which is visible, and which she has assumed for purposes of duplicity, shall be considered as designating her as a member of a religious order; and thus, not what she has adopted for the commission of sin, but what the eyes of every one perceive, is to be accepted as the sign of her religious profession. Any widow who, hereafter, attempts to excuse herself in this way, shall not only be subject to the penalties of the law, but shall also undergo the punishment prescribed by the canons of the Church, and shall not escape the justice of the king.

=FLAVIUS CHINTASVINTUS, KING.=

=V. Concerning Pederasty.=

That crime must not be unpunished which, in the violation of morality, has always been considered most execrable; we therefore decree, in cases of pederasty, where their guilt has been proved after proper investigation by the judge, that both parties shall be emasculated without delay, and be delivered up to the bishop of the diocese where the deed was committed, to be placed in solitary confinement in a prison; so that, against their will, they may expiate the crime which they are convicted of having voluntarily perpetrated.

If, however, any one should have been forced to commit this horrible offence, and is proved to have done so unwillingly, he shall then not be liable to punishment, if the person who discovered the crime should be present as a witness; but he who engaged in it voluntarily shall undergo the full penalty. The children, or legitimate heirs of married men who have been found guilty of this crime, shall have their property; and it shall be lawful for their wives, having received back their dowries, and retaining all their possessions, to afterwards marry whomsoever they will.

=FLAVIUS EGICA, KING.=

=VI. Concerning Sodomy, and the Manner in which the Law should be Enforced.=

The doctrine of the orthodox faith requires us to place our censure upon vicious practices, and to restrain those who are addicted to carnal offences. For we counsel well for the benefit of our people and our country, when we take measures to utterly extirpate the crimes of wicked men, and put an end to the evil deeds of vice. For this reason we shall attempt to abolish the horrible crime of sodomy, which is as contrary to Divine precept as it is to chastity. And although the authority of the Holy Scriptures, and the censure of earthly laws, alike, prohibit offences of this kind, it is nevertheless necessary to condemn them by a new decree; lest if timely correction be deferred, still greater vices may arise. Therefore, we establish by this law, that if any man whosoever, of any age, or race, whether he belongs to the clergy, or to the laity, should be convicted, by competent evidence, of the commission of the crime of sodomy, he shall, by order of the king, or of any judge, not only suffer emasculation, but also the penalty prescribed by ecclesiastical decree for such offences, and promulgated in the third year of our reign.

=FLAVIUS CHINTASVINTUS, KING.=

=VII. Concerning Adultery committed with the Concubine of a Father, or a Brother.=

It was decreed by a former law, what should be done in cases where incest was committed by persons related by blood. And because it is not of less importance that the bed of the father or brother be not polluted, we command, in addition, that no blood relative of theirs shall ever commit adultery with either the concubine of his father or his brother, nor with any one whom he knew his father or his brother had ever sustained intimate relations with, whether she be a freewoman or a slave; nor shall the father commit such adultery with the concubine of his son. And if any one should knowingly commit such an offence, his heirs, should he have no legitimate children, shall obtain his property; and he himself shall be subjected to penance, and shall undergo the punishment of perpetual exile.

TITLE VI.--CONCERNING DIVORCE, AND THE SEPARATION OF PERSONS
WHO HAVE BEEN BETROTHED.

=I.= _Where a Woman, justly or unjustly, is Separated from her
Husband._

=II.= _There shall be No Divorce between Married Persons._

=III.= _There shall be No Separation between Persons who are
Betrothed._

=I. Where a Woman, justly or unjustly, is Separated from her Husband.=

No one can legally marry a freewoman who has been repudiated by her husband, unless he knows that they have been divorced, either by written evidence, or in the presence of witnesses. And if any one should act otherwise, as soon as the governor of the city, or his deputy, or the judge of the district, shall become aware of the fact, where the parties are noble, and the judge is unable to imprison or separate them; he must straightway bring the affair to our attention, that they may receive the punishment which they deserve. But if they are persons of inferior rank, the judge shall immediately cause them to be separated. And the woman who, without the consent of her former husband, has married again, as well as the man who ventured to take her as a wife, shall be delivered up absolutely to her former husband, to be dealt with according to his pleasure. If, however, the case between the former husband and his wife has not yet been decided; or if her former husband has married another woman; or, indeed, if he has left his wife unjustly; he shall lose the dowry which he gave her, and it shall absolutely belong to her, nor shall he be entitled to receive any of her property. If he should have sold, or fraudulently disposed of, any of the property of his wife, the judge shall compel him to make restitution. Where the woman, through fear of her husband, or deceived by any of his representations, should have made any written agreement concerning her property for his benefit, her agreement shall be null and void, and all the property which it disposed of shall be restored to her.

=FLAVIUS CHINTASVINTUS, KING.=

=II. There shall be No Divorce between Married Persons.=

If the violation of the wife of another is a crime, how much more is she to be condemned who voluntarily commits this sin. For the reason that there are many reckless men who, either through ambition or desire, or induced by some fraud, and despising their own wives, seek those of others, we therefore decree by this law, which is to be perpetually observed; that no man, except for the manifest cause of fornication, shall at any time, leave his wife, nor shall he divorce himself from her, either in the presence of a witness, or by any instrument in writing, or under any pretext whatever. Where her husband is able to prove her guilty of adultery, the crime having been established by sufficient evidence, she shall be given up to him by the judge to be disposed of as he pleases; in accordance with the provisions of a former law. If, however, she should manifest a desire to enter a religious order, the priest shall ascertain the wishes of both of them, so that, afterwards, neither will be able to offer any excuse for their conduct, in case either should marry again. But if, under any other circumstances, a man, rejecting his wife, should fraudulently obtain from her a document in writing, relating to a separation, such document shall have no validity whatever, and the wife shall be entitled to recover the sum she received as a dowry; and if the unprincipled husband should have any property, it shall be given to their children. But if there should be no children by this marriage, or by a former one of the husband, the wife shall receive his entire property, in addition to her dowry, as aforesaid; and if she should be dead, her sons shall have the right to bring the matter before the court; so that, the crime being proved, the man may undergo the sentence of the law. All the children either by this marriage or by a preceding one of the husband, shall, as we have said, share equally in the property. But if the parties should have no children; and there should be none living of the first marriage of the husband; and it should appear that the woman has children by a previous marriage of her own; it shall be lawful for the latter to share in their mother’s rights in this property; and, on their application, under the present law, they may obtain the entire possessions of the man who has been condemned. Where there are no children of the aforesaid persons, husband and wife, her nearest relatives shall be entitled to the inheritance of her property, providing they should have instituted proceedings leading to the conviction of the husband. Where a husband, for the sake of divorce, or for security to himself, extorts any instrument in writing from his wife, or, without doing this, having abandoned his wife, should marry another; he shall receive two hundred lashes in public, and shall be scalped, as a mark of degradation; or he may be condemned to perpetual exile, or be given as a slave to any one whom the king may select. Any woman who, knowing at the time, or having discovered subsequently, that her husband has another wife living, shall make no objection to this; shall, at once, be given up to the former wife of her husband; so that, with the exception of depriving her of life, she may have the privilege of disposing of her as she pleases. And if, even after the death of the first wife, this crime should be proved by her children, or, if there should be no children, by such heirs as have the right to prosecute; the guilty woman shall be given into their power, to be disposed of in the same manner as the injured wife would have had a right to dispose of her, the infliction of death alone being excepted. And, for the reason that women are accustomed very frequently to cause scandal by leaving their own husbands, on account of their attachment to kings and judges; therefore, we decree that if any woman either by the aid of the king, or through inducements held out to her by any one else, should separate from her husband, or consent to marry another man; she shall be surrendered, with all her property, into the hands of her lawful husband, and shall be liable to the same penalty imposed upon the husband under similar circumstances, as hereinbefore stated, and her property shall be disposed of in a similar manner.

Likewise, this same rule shall apply to men, where one shall presume to marry the wife or the betrothed of another; the following cases being excepted: where the husband of the woman should have been found guilty of pederasty; or should have surrendered his wife to another man against her will; or should have permitted this to be done; and, for the reason that such villainy ought always to be condemned by Christians, that man shall never be permitted to marry another woman, if he should desire to do so. Where the spurious marriage has actually taken place, the husband must be delivered up as a slave to some one, according to due process of law; and if the woman should be unwilling to longer live with her legal husband, she must afterwards live a chaste life; nor shall she be permitted to marry again until her aforesaid husband is dead.

=FLAVIUS RECESVINTUS, KING.=

=III. There shall be No Separation between Persons who are Betrothed.=

We have elsewhere prescribed the same punishment for transgressions committed by persons of equal rank. Therefore, the provisions of a former law relating to the persons as well as property, of men and women who have been betrothed, shall be, and is, hereby confirmed; and if any person after the dowry has been given, or the marriage contract has been legally drawn up, in violation of his, or her, solemn obligations, should marry any one else, without the consent of all parties; he, or she, shall be liable to all the penalties of a former law; and if it should appear that on account of sickness, rather than through fraud, such person is desirous of entering some religious order, he or she shall be permitted to do so, subject to the regulations of the above-mentioned former law.