Common Places, Part 2 · Chapter 11 · Section 5
Of the punishments of Adulterie.
In 2. Sam. 12, 14.22 Somewhat we will declare in this place of the puniſhments of adulterie. And this I thinke to be neceſſarie for me: for by the gréeuouſneſſe of puniſhments, we know the weightineſſe of ſinnes. By rewards and puniſhments Common-weales are preſerued. But puniſhments muſt be applied, according to the heauineſſe of offenſes. It is verie well written in the 24. cauſe, queſtion 1. in the chapter Non afferamus (which words be aſcribed vntounto Ierom, but rather they are the words of Auguſtine; The greeuouſneſſe of Schiſme.) How gréeuous a ſinne is Schiſme, or to be diuided from the church, it is perceiued by the puniſhments laid vponupon men for other gréeuous ſinnes. The idolatrie doone vntounto the molten calfe, Exo. 22, 27. Iere. 36, 29.God puniſhed by a kind of death. Bicauſe Zedechias burned the booke of the prophet, God did reuenge it with captiuitie. But the rebellion done againſt Moſes and Aaron he puniſhed more gréeuouſlie: Num. 16,he ſent a fire, wherewith thoſe, which conſpired with Chore, were conſumed, and the earth ſwallowed vp the ſeditious perſons. A diuiſion of this placeWe will firſt then conſider the puniſhments of adulterie, that we may vnderſtand how heinous a ſinne it is. Secondlie we will ſée, whether the adulterer and the adultereſſe, ſhould hauehave equall puniſhments; and whether they be bound to like puniſhments, and whether of them is the greater ſinner. Thirdlie, what euils maie come by reaſon that theſe puniſhments are either neglected or vtterlie taken awai…. As touching the firſt; we muſt ſearch in the holie ſcriptures, what may be found touching the puniſhments of adulterie; after that we will deſcend to the reckoning vp of puniſhments of diuers nations; then will we come to the Romane lawes; and laſt of all vntounto the eccleſtiaſticall and Canon lawes.
Of the firſt we muſt vnderſtand, that the diuine ſcriptures teach vsus, that The wages of ſin is death. Rom. 6, 23.Séeing therefore that death is due vntounto ſinnes; foorthwith, after a man hath tranſgreſſed, he might be put to death by the iuſtice of the lawe. But God is not ſo ſtrict an exactor, he granteth as yet ſome ſpace vntounto life: the which neuertheleſſe is ſomtime broken off by the ſword of magiſtrates; if gréeuous crimes be committed, which can by no meanes be ſuffered. But there are other ſinnes of leſſe weight, for which it is not lawfull to put men to death. Further, we will ſée whether adulterie may be reckoned among thoſe ſinnes, wherevnto death is due. Certeinlie it was a ſinne, wherevnto death belonged: as the holie ſcriptures declare vntounto vsus, and that for good cauſe. For by this wickedneſſe is hurt that ſocietie, from whence is deriued the fountaine of all friendſhip among men. Gen. 26, 11In the booke of Geneſis, when Abimelech the king of Gerar had ſéene Iſaac plaieng ſomewhat familiarlie with Rebecca, he perceiued him to be hir huſband and not hir brother. Death for adulterie before the lawe. Gen. 39, 20.So then he charged, that none vponupon the paine of death ſhould touch that woman. Therefore we ſée, that before the law of Moſes, adulterie was by the Ethniks puniſhed with death. Ioſeph after that it had béene laid to his charge in Aegypt, that he committed adulterie with his miſtreſſe, was deliuered to the head officer of capitall crimes; and was caſt into priſon. Thamar, Gen. 38, 24.when ſhe had buried two huſbands, and waited for the third, vntounto whom ſhe was betrothed, did commit adulterie, and was iudged to be burnt. And vndoubtedlie, when a woman that is betrothed, dooth abuſe hir ſelfe, ſhe committeth adulterie. For although it be not a full marriage, yet is there ſuch hope of marriage, as it ought not to be polluted.
This did the emperour Seuerus perceiue. The lawe may be read Ad legem Iuliam de adulterio, in the Digeſts, the lawe Sivxor, in the Paraph Dinus. In the 22. chapter of Deuteronomie, Deut. 22, 22 Leuit. 20, 10and in the 20. of Leuiticus: by the lawe that is there giuen, the adulterer & adultereſſe are commanded to be put to death. Which ſentence, God in the 16. chapter of Ezechiel confirmeth, verſe. 38.where he ſaith, that he would bring puniſhment vponupon the adulterous Iſraelits. The ſame lawe is confirmed in the eight chapter of Iohn. When the Scribes and Phariſies had brought vntounto Chriſt a woman, which was taken in adulterie, they ſaid; Moſes commanded vsus in the lawe, verſe. 5.that ſuch a woman ſhould be ſtoned, &c. So greatlie did God eſtéeme chaſtitie, and vnſpotted wedlocke; as he would not hauehave ſo much as a ſuſpicion to remaine betwéene them, which were man and wife. For in the booke of Numbers, Num. 5, 14. The lawe of gelouſie.there is ordeined a lawe touching gelouſie. She which was ſuſpected of adulterie, was brought vntounto the prieſt; curſſes were denounced, a drinke was giuen hir, and ſtraitwaie it was knowne whether ſhe was an adultereſſe or no. And if a man had married a wife, and had béene able to gather and prooue by certeine ſignes, that ſhe was not a virgine; ſhe was puniſhed. Puniſhments for abuſing a maid betrothed.If a maiden betrothed to a huſband, had béene forced by anie abroad in the field, the rauiſher ſhould hauehave béene puniſhed with death: if in the citie, the damſell ſhould alſo hauehave had the ſame puniſhment. Deuteronomie 22. So then great ſeueritie was vſed héerein. verſe. 13, 25Howbeit the reuenge was not committed to priuate perſons: the huſband killed not his wife, nor the father his daughter; but the matter was brought before a iudge. verſe. 27.So read we to be doone in Suſanna, although that hiſtorie be Apocryphall. In the prophet Ieremie, we read that Nabuchadne-zar roſted Zedechias and Achabus, Iere. 29, 22.two vnchaſt prieſts. Theſe things we hauehave in the holie ſcriptures, eſpeciallie of the old teſtament.
The Ethniks lawes for puniſhment of adulterie.23 The lawes of the Gentils alſo ſuffered not this miſchéefe to eſcape vnpuniſhed. If we giuegive credit to Strabo, in the 16. booke of his Geographie, the Arabians made it death. In Arabia, where ſpices growe, the ſame puniſhment was prouided for adulterers; Of the Arabians.as Euſebius ſaith in his ſixt booke, & eight chapter, De praeparatione euangelica. Of the Aegyptians.The Aegyptians (as Diodorus Siculus reporteth in the firſt booke of his Bibliotheca) did cut off the noſe of an adultereſſe; that the face of hir, which was ſo pleaſing, might be deformed. The adulterer was beaten with a thouſand ſtripes, euen well néere vntounto death. Aelianus in his hiſtorie of Varietie, the 13. booke, writeth, Of them of Locris.that Zeleucus the lawe-maker of Locris ordeined, that an adulterer ſhould hauehave both his eies put out. The ſame was thought to be a hard lawe. Within a while after it happened, that his owne ſonne was taken in adulterie: the people would hauehave releaſed him from puniſhment, but the father would not. And to the intent the ſame lawe might after ſome ſort be kept; he willed, that one of his ſonnes eies, and another of his owne ſhould be pulled out. There were a people, which Suidas calleth Laciadae, Of the Laciade.and others Placiadae, among whom adulterers were tormented with puniſhments and ignominies about the ſecret parts.
Of the Germans.Alſo the Germans (if we beléeue Cornelius Tacitus) were moſt ſeuere puniſhers of adulteries. For the adultereſſe, being taken with the maner, was ſet naked in the ſight of hir kindred: the haire of hir head was cut off, and after that ſhe was by hir huſband beaten through the towne with a cudgell. Of the Gortinei.Plutarch in his Problems writeth, that the Gortinaei, when they had apprehended an adulterer; they brought him foorth openlie, and crowned him with wooll: whereby they might ſhew him to be a wanton and effeminate perſon. After which time he liued in perpetuall infamie among them. Of the Cumei.The people called Cumaei ſet an adultereſſe in the market place, vponupon an infamous ſtone, and there of the people was put to ſhame: then being ſet vponupon an aſſe, ſhe was carried through the citie. Afterward in waie of ignominie, it was ſaid vntounto hir, foreign. Saletus a citizen of Croton (as Lucianus writeth of them, Of the men of Croton.which being hired ſerue for reward) made a lawe, that adulterers ſhould be burned aliue. Within a while after, he himſelfe was taken in adulterie with his brothers wife: he being accuſed, made an oration, wherein he ſo defended himſelfe, that all men bent their minds to pardon him. But he, conſidering with himſelfe how ſhamefull an offenſe he had committed, leapt of his owne accord into the fire. And among the philoſophers, Plato, Platos lawe.in his eight booke De legibus, ſaith; that Adulterie is a great & horrible offenſe, when the huſband goeth to another than his owne wife, and the wife vntounto another than hir owne huſband. Further, that we ought to kéepe our bodies chaſt, and not to beſtowe them vponupon ſtrumpets and harlots. They (ſaith he) that ſhall doo that, are in perpetuall infamie.
Ariſtotle, in his ſeuenth booke of Politiks, Of Ariſtotle.in the laſt chapter ſaue one, writeth thus; If anie man ſhall hauehave carnall copulation with hir that is not his owne, or anie woman with him that is not hir owne; let that be counted among moſt ſhamefull things. So as they noted adulterers, both men and women, to be infamous. Diogenes the Cynik was of another mind. For it happened that a certeine man, called Didymus, was taken in adulterie: Of Diogenes.and Diogenes being demanded what ſhould become of him, anſwered; that according to his owne name, he ought to be hanged. For foreign with the Graecians be the ſtones of a man or of a beaſt. In old time among the Atheniens, Of the Atheniens.adulterie was a capitall crime: as Pauſanias in his Boetiks ſheweth. He citeth the lawe of Draco. And it was lawfull among the Atheniens to ſlaie an adulterer, that was taken with the déed dooing.
And euen this dooth the oration of Lyſias teſtifie, wherin it is ſpoken of the death of Eratoſthenes the adulterer. The adultereſſe was not ſtrait waie put to death, but it was not lawfull for hir to come into holie aſſemblies. Otherwiſe ſhe might hauehave all maner of ignominie doone vntounto hir by anie perſon, onelie the puniſhment of death excepted: not for that they did take pitie of hir, but that they might giuegive hir the longer torment. Which may be gathered by the oration of Demoſthenes againſt Neaera, if the ſame be his. Polybius in the ſecond booke of his hiſtorie; If an adulterer be ſlaine (ſaith he) let the executioner go frée. He ſéemeth to ſpeake this by the lawes of the Graecians: for he was a Graecian borne▪ How greatlie the Graecians were moued for the adulterie and violent taking awaie of Helene, all men knowe, Of the Greekes.which hauehave anie ſmall ſkill of the poets. Of Mahumet.Mahumet (as appéereth by his owne lawes) would hauehave adulterers to be whipped in a maner to death. The Goths made a lawe of death againſt adulterers, Of the Goths.as it is read in the firſt booke of Procopius De bello Gothico. Manie things of ſundrie nations might be recited; but theſe for this time ſhall ſuffice.
24 I come now to the Romane lawes. The Roman lawes touching adulteris.Dionyſius Halicarnaſſaeus commendeth Romulus the firſt king of the Romans; for that he would hauehave, by his lawes, matrimonie to be inuiolate; and yet (ſo farre as we can find) he made not adulterie to be puniſhable by death. Diuorſe was permitted for the cauſe of adulterie. Yea and afterward, for the ſuſpicion of adulterie, a putting awaie of the adultereſſe was admitted. And ſo did Caeſar: for he put awaie his wife Pompeia, finding hir with Clodius in the houſe of the head biſhop. But he being afterward bidden to declare againſt hir ſome witneſſe of adulterie, he would not: and being demanded wherfore he had then put hir awaie, he anſwered; that his houſe ſhould not onlie be frée from the filthineſſe of adulterie, but alſo from the verie ſuſpicion thereof. The lawes of the twelue tables.By the lawes of the twelue tables, an adulterer was put to death. But in ſo much as belongeth to publike puniſhments, it ſéemeth that in thoſe former ages, they were more eaſie. Tacitus in his ſecond booke declareth, Other old lawes of this thing.that a certeine man was accuſed of treaſon and of adulterie, in the time of Tiberius Caeſar. And touthing adulterie, it ſéemed that it was warilie enough prouided for, by the lawe Iulia. But Tiberius, who about the beginning of his reigne was gentle, did by intreatie put awaie thoſe great puniſhments, and ſaid; After the maner of our anceſtors, let the adultereſſe be remooued two hundred miles from the citie, and the adulterer be baniſhed both out of Italie and Aphrica.
We read in the tenth booke of Titus Liuius, that one Fabius Gurges, which was Cenſor, had condemned manie matrons of adulterie. The amercement that they paid was monie, of the which monie he afterward builded a temple vntounto Venus. Out of the oration of M. Cato, which is rehearſed by Aulus Gellius in the tenth booke, Aulus Gellius.and the title is De dote; we may perceiue, that before the lawe Iulia was made, it was lawfull to ſlaie both the adulterer and the adultereſſe. Auguſtine, in the third booke and fift chapter De ciuitate Dei ſaith; Women buried quicke for whooredome.that The ancient Romans vſed to burie the veſtall virgins aliue, if they had committed whooredome; but that they did not deale ſo ſeuearelie in puniſhing of adulterers. He ſaith, that they rather protected the temples of their idols, than their owne wedlocke. And no maruell it is: for they worſhipped adulterous gods; Iupiter, Mars, and Venus. After that time was the lawe Iulia made, whereof there is mention in the Digeſts, and in the Code. Manie did falſelie imagine that the ſame lawe had béene made by Iulius Caeſar.
It was made by Auguſtus, who was alſo called Iulius; for ſo much as he was the adopted ſonne and heire of Iulius Caeſar. Suetonius ſaith, that he made this lawe, and he made it vponupon iuſt cauſe; for his daughter Iulia, and a néece that he had, were moſt licentious monſters. The emperour vſed to call them, his rotten impoſtems. When he had made the lawe, there was brought vntounto him a yong man taken in adulterie with his daughter Iulia. The which the emperour tooke in ſo euill part, as he flue at him with his fiſts. The yong man with a lowd voice cried out; Thou Caeſar onelie haſt ſet downe this lawe. Caeſar, for that he was blamed, as if he had béene an inconſtant man, would not eate his ſupper for ſorrowe. By this Iulian lawe, where firſt, When the power of killing the adulterers was taken from the huſband.in the time of Cato, it had bin lawfull to thruſt through both the adulterer and the adultereſſe; then was this power taken from the huſband: and it was lawfull to kill the adulterer onelie. In the Digeſts Ad legem Iuliam, in the lawe Marito; and in the Code, in the ſame title, in the lawe Gracchus.
Yet I read in Suetonius, that Claudius Caeſar killed Meſſalina, vnderunder the name of adulterie: but for ſo much as he was an emperour, he did what he would. It was lawfull for an huſband to kill the adulterer, although not abſolutelie; but when he ſhould be taken with the maner, and in his owne houſe. Neither might he doo it to euerie one, but to one of the common ſort: for if it had béene a noble man, vntounto whom he ought a reuerence, it was not lawfull: yet might he kéepe him ſhut vp in his houſe 24. houres, vntill he did bring witneſſes. We ſée, that there was ſome exception of perſons. Why leaue was taken awaie from the huſband to kill his wife, a reaſon may be giuen. Huſbands doo ſomtime beare hatred vntounto their wiues, when they be contentious or deformed. They might couet to gaine a dowrie and to marrie an other woman: therefore the lawe would not condeſcend, that the wife ſhould be ſlaine. Howbeit, it was lawfull for the father of the adultereſſe, to ſlaie both; as well in his owne houſe, as in the houſe of his ſonne in lawe: as may be ſéene in the Digeſts Ad legem Iuliam. But it was not lawfull for him to kill the adulterer, vnleſſe he alſo killed his daughter; the reaſon was this, that Nature teacheth the parents to louelove their children hartilie: whereby it is probable, that he would not ſlaie his daughter, vnleſſe ſhe were taken in adulterie.
25 Seneca, in his firſt Declamation, Seneca.ſéemeth to affirme, that it ſhould be lawfull to kill them both. For he put this caſe. A certeine ſoldier, which had loſt his hands in war, found his wife to hauehave fellowſhip with an adulterer: euen while the act was committed, he called his ſonne to ſlaie them. The ſonne refuſed to obeie, wherefore the father reiected his ſonne: it is demanded, whether he did this iuſtlie or no? But perhaps Seneca had reſpect vntounto the time of Cato. But if ſo be the huſband, when he was in a furie, had killed his wife being an adultereſſe; he, by the Romane lawes, ſhould hauehave eaſier puniſhment, than if he had béen an abſolute murther…e. For he fell not into the danger of the lawe Cornelia of murtherers: his puniſhment was erile. Which is to be ſéene in the Pandects, Ad legem Corneliam de ſicarijs, in the firſt and third lawes. Whervpon, when it is ſaid by the Canoniſts, the 33. cauſe, queſtion the ſecond, in the chapter Inter haec; that Sometime it was lawfull by the Romane lawes to kill a wife, being taken in adulterie, & not by the Eccleſiaſticall lawes; ye muſt vnderſtand, that the matter is not altogither ſo; but bicauſe the puniſhment was light, after a ſort it was ſaid to be lawfull. Or elſe perhaps, they which made thoſe canons, had reſpect vntounto the lawes of Lombardie, in the which that was lawfull.
Let vsus alſo adde, that the huſband might, by the Romane lawes, ſlaie the adulterer; not onelie when he tooke him at home with the maner, ſo as he could not denie it; but alſo out of the houſe, when the caſe were ſo, that he was ſuſpected, and that the huſband could bring teſtimonie, that he had giuen him warning once, twiſe, & thriſe, that he ſhould not hauehave communication with his wife. Howbeit, if he had found them talking familiarlie togither in the temple or place of praier, then it was not lawfull ſo to doo: but they were deliuered vntounto the biſhop or defender of the church. But the biſhops were manie waies againſt the putting of them to death: neither would they giuegive licence to kill them. It ſéemeth, that thoſe firſt Canoniſts were led with a deſire of ſauing ſoules; that they ſhould not die vponupon the ſudden, without repentance. The latter Canoniſts fauoured this matter, perhaps bicauſe they, more than others, laie in wait for the chaſtitie of other mens wiues. Wherefore there were manie puniſhments for adulterie prouided by this lawe Iulia. The effect of the lawe Iulia touching adulterie.Firſt, the crime was brought before publike aſſemblie: the accuſation was admitted, not raſhlie (forſooth) but by a certeine order. The wife, if ſhe accuſed hir huſband of adulterie, was not heard; but ſhe hir ſelfe was accuſed. The firſt place was giuen to the huſband, the ſecond to the father; brethren and vncles alſo might accuſe: and afterward, at certeine times, place was giuen vntounto ſtrangers. Diuorſement was ordeined betwéene them, they leſt the dowrie and donation, which came by marriage. Both the adulterer and adultereſſe became infamous, but after ſundrie faſhions: the adulterer, not, vnleſſe he were condemned; the adultereſſe, ſo ſoone as ſhe was attached.
And there was ſome certeine peculiar thing in the crime it ſelfe, It was not lawfull in this crime to make an accord with the accuſer.which could not be accorded with the accuſer: as it appéereth in the Code De tranſactionibus, in the lawe Tranſigere. It is the lawe of Diocleſian & Maximinian: they would not hauehave it agréed vponupon, that monie, being giuen to the accuſer, he ſhould ceaſe from [purſuing] this wicked fact. Which yet was lawfull in other crimes of death; namelie, to redéeme the ſoule for monie, or for anie thing elſe. Moreouer, the huſband might not reteine the adultereſſe, nor yet call hir home, after he had put hir awaie: otherwiſe, he ſhould hauehave incurred the crime of brothelrie. Beſides this, when a woman was thus conuicted, no other man might take hir to wife. In deteſtation of this crime, this alſo was added; that not onelie they, Not onelie adulterie, but alſo the intiſer there to was puniſhed.which had committed adulterie, were puniſhed; but they alſo, which had intiſed anie woman, though they could not atteine to their purpoſe. In the Digeſts. De criminibus extraordinarijs, in the firſt lawe, we read; that the intiſer ought to be puniſhed without order of lawe. Moreouer, The puniſhment of ſoldiers for adulterie.if ſoldiers had béene conuicted of adulterie, they were diſmiſſed from the oth of war, they were put out of paie with ſhame; whereof the lawiers beare record, in the Digeſts Dere militari. Plinius ſecundus, in his ſixt booke of epiſtles, in his epiſtle vntounto Cornelianus, writeth; that Traianus did ſtraitwaie for adulterie diſcharge a ſoldier of his oth, and diſmiſſed him with ſhame.
But theſe puniſhments otherwhile were mitigated, and it came to paſſe, The puniſhment of adulterie mitigated.that it was commonlie ſaid (as Iuuenal writeth) Thou lawe Iulia, what art thou aſléepe? They made but a ſcorne of it. Sometimes they were contented with this ſhame, that the adultereſſe ſhould be brought foorth openlie in the garment of a man. Wherevpon the poet Martial ſaith; When Numa ſawe the adulterous …ade a far off in hir gowne, then he ſaid that ſhe was a condemned adultereſſe. At Rome, in the daies of Theodoſius, there was a more ſhamefull cuſtome. An adultereſſe being taken and condemned, was brought to the brothell houſe: as Socrates in the fift booke of hiſtories, & third chapter writeth. Theodoſius comming to Rome, tooke awaie this moſt ſhamefull cuſtome; leaſt ſinnes ſhould be added vntounto ſinnes. Conſtantinus lawe.Conſtantinus Magnus (as we read in the lawe Iulia de adulterijs, in the Code, in the lawe Quamuis adulterij) appointed a verie ſeuere puniſhment of adulterie. He calleth adulterers, ſacrilegers, or robbers of matrimonie; and therfore thinketh them to be vnwoorthie of this life. Then was that lawe receiued, which did endure vntounto the time of Ierom: as we read in the epiſtle to Innocentius De muliere ſepties icta Vercellis. There be ſome alſo, which affirme, Whether at Rome deth was due for adulterie before Conſtantine.that adulterie, euen before Conſtantine, was puniſhed with death by the Romane lawes: and they alledge a lawe woorthie to be knowne, which was made by Alexander Seuerus the ſonne of Mammea, in the Code Ad legem Iuliam de adulterijs. Thus it beginneth; It is agréeable to the chaſtitte of our times, that adulterers be puniſhed. If anie woman did by anie means eſcape capitall puniſhment, he ordeined, that none ſhould marrie hir. And yet the ſame Alexander was long before the time of Conſtantine.
26 Some ſéeke for this ſhift, and ſaie; that by capitall puniſhment, according to the ancient lawes, is ment baniſhment. But that maketh no matter: for there is an other lawe of Diocleſian and Maximinian (who were before Conſtantine, though not long) where it is thus read in the Code, in the title De tranſactionibus, in the lawe Tranſigere; There is no let, but there may be compoſition made for capitall crimes, except it be for adulterie. Crimes for the which death is due.In capitall crimes, the lawes doo permit, that a man might redéeme bloud for monie, if néed ſhould be, and might compound with the accuſer, to ceaſe his accuſation. If by this word Caput, thou ſaie is ment baniſhment; the words that followe doo forbid it. In the reſidue he ſaith; In thoſe faults, which cauſe not the puniſhment of death, it is not lawfull to make compoſition. Howbeit, the common opinion of the lawiers is, that by the lawe of the Digeſts, it is no crime of death: but by the lawe of the Code it is, by reaſon of that lawe of Conſtantine. Which opinion if we ſhould followe, and ſaie, that the lawe Iulia ordeined gréeuous puniſhments, and yet not the puniſhment of death: I will ſhew in hiſtories the contrarie. Iulius Caeſar had a franchiſed man, whom he loued dearelie; this man being knowne to hauehave committed adulterie with a matrone belonging to a certeine gentleman, he put to death.
Opilius Macrinus (as writeth Iulius Capitolinus) was accuſtomed to burne in the fire the adulterer and the adultereſſe, both their bodies being ioined togither. Aurelianus (as teſtifieth Vopiſcus) hauing a ſoldier, which rauiſhed the wife of his hoſt, tied him faſt vntounto the top of two trées, which he had bended downe: the ſame being let ſlip againe with great violence, plucked the bodie in ſunder in two parts. Auguſtus, for adulterie, put to death Proclus his franchiſed ſeruant. If therefore the lawe Iulia did not condemne adulterers to death, it appéereth héereby, that emperours (as the circumſtances required) might increaſe the puniſhments. That law of Conſtantine, which decréed death againſt adulterers (as we hauehave it in the Authentiks) is rehearſed in the Code Ad legem Iuliam de adulterijs: The lawe of Conſtantine mitigated by Iuſtinian.it beginneth; Sed bodie. Iuſtinian ſomewhat mitigated that ſeueritie, who ſuffered the puniſhment to continue, as touching the adulterer; but he dealt ſomewhat more fauourablie towards the adultereſſe. He permitted them to hauehave their life, but yet after ſuch a ſort, as they ſhould be beaten with cudgels, and driuen to a monaſterie, from whence the woman might be demanded again of hir huſband within the ſpace of two yeares. If the huſband did not demand hir againe, but were dead in the meane time, ſhe was conſtrained to liue there during hir life.
After this, adulterie was ſo ſmallie regarded, as they made a mocke thereof, A neglecting of theſe lawes.and would doo it in a maner of ſet purpoſe. In ſome place they made it to be a penaltie of monie; whereby the poorer ſort (in déed) might be reſtrained, but the richer had a greater occaſion to ſinne. Euen in like maner as it happened of a law, which Gellius ſpeaketh of; that for paieng a certeine ſumme of monie, one man might ſtrike another. Whervpō a certeine man giuing a blow to a citizen, whom he met by the way, commanded his ſeruant that followed him, to go paie the iudge that ſumme of monie which he had forfeited. By this meanes it came to paſſe, that men ſaid; He is a vile man that ſéeketh for law at the chéefe iuſtices hand againſt adulterie: as if he might ſaie; He hath ſmall courage, that thruſteth not through both the adulterer and the adultereſſe. But although the lawes are ſilent, yet the iuſtice of God ſheweth it ſelfe: for it puniſheth adulterers with madneſſe, with furie, and with other moſt gréeuous puniſhments; euen as we ſée in Dauid. A diſtribution of the puniſhments of adulterie.Theſe things had I to declare of ciuill puniſhments, which if they were diſtributed into a certeine method, were either puniſhable by death; ſo as the magiſtrate himſelfe puniſhed them: or it was appointed to be doone by priuate perſons; as by the huſband, & the father of the adultereſſe; or elſe, if they eſcaped the puniſhment of death, they were noted with ſome infamie. The infamie was ſometime, naked [without outward tokens] ſometime it had certeine outward tokens [of ſhame] otherwhile the adultereſſe was ſet vponupon an aſſe, and crowned with wooll. Sometime there was added a chaſtiſing of the bodie. The wiues were beaten with cudgels, their noſes were cut off. Or elſe the puniſhment was of an other kind: they were baniſhed, they forfeited a ſumme of monie, they loſt their dowrie, they were diuorſed, and might no more be married.
27 Now we will ſpeake of eccleſiaſticall puniſhments. And wheras manie things be ſhewed by the fathers and the councels, we will vſe this method: that firſt we will declare what they hauehave diſallowed in the ciuill lawes; ſecondlie, what eccleſiaſticall puniſhments they themſelues hauehave laid vponupon adulterers. They allowed not death for adulterie.Firſt, the puniſhment of death liked them not. In the Councell of Tribure, chapter 46. it is ordeined; that If an adultereſſe ſhall flie vntounto the church, ſhe may not be deliuered vntounto hir huſband, or to the iudge, or preſident. The firſt councell of Orleans, which was held vnderunder Clodouaeus, in the 3. canon, hath in a maner decréed the ſame; namelie, that Adulterers may be ſafe, if they flie to the church, & ſhall not be deliuered; or elſe, if they be deliuered, they ſhall take an oth that they will not hurt them; and if ſo be they had not ſtood to their oth, but violated the ſame, they were excommunicated. The biſhops challenge the puniſhment hereof to themſelues.At the length it came to that paſſe, that the biſhops, to ſaue them from death, would hauehave the iudgement of that crime to perteine vntounto their Court. And this they will hauehave to be the cauſe thereof. If this examination be permitted to laie men, they would be too negligent therein: as who ſhould ſaie, that they themſelues are moſt ſeuere. And what I beſéech you doo they by their epiſcopall examinations? They ſet a fine vponupon their heads, and ſeparate them from the marriage bed. Hereof ariſe innumerable whooredomes; yea and the naughtie men themſelues ſometimes abuſe theſe wiues being ſeparated.
They allow not the adultereſſe to be ſlaine by hir huſband.Moreouer, they allow not, that the adulterer or the adultereſſe ſhould be ſlaine, either by the huſband or father. Of this mind was Auguſtine in his treatiſe De adulterinis coniugijs ad Pollentium, in manie places of the ſecond booke. He would, that thoſe priuate men ſhould forgiue adulteries committed. Reaſons why the adultereſſe ſhould not be killed by hir huſband. verſe. 7.Theſe reaſons he bringeth; We be all infected with ſinne, we hauehave néed of merciemercy; Therfore vntounto ſinners we muſt ſhew merciemercy. And he vſeth the ſaieng of Chriſt in the eight of Iohn; He which among you is free from ſin, let him caſt the firſt ſtone againſt the adultereſſe. He that is thus vrged, let him thinke with himſelfe, whether he be guiltie of ſinne. Matth. 6, 12Forgiue ye (ſaith our Sauiour) and it ſhall be forgiuen vntounto you. We praie; Forgiue vsus our treſpaſſes, euen as we forgiue them that treſpaſſe againſt vsus. With what face can we ſpeake theſe things, if we be ſo cruell in reuenge? God will not the death of a ſinner, Ezec. 18, 32but that he ſhuld turne and liue. Why then wouldeſt thou his death?
Theſe reaſons be not firme in all reſpects. For if they ſhould be vnderſtood concerning ciuill magiſtrates, no malefactor ſhould be puniſhed; and to what end ſhould magiſtrates then beare the ſword? As touching priuate men, I agrée with Auguſtine; that they ought not to take ſuch power vponupon them, as to ſlaie the adultereſſe and the adulterer. If anie man will ſaie; The publike lawes doo there giuegive authoritie vntounto the huſband, An obiection.he is no priuate perſon: euen as when they command the ſoldiers to fight, or the executioner to put a man to death, who be priuate men. But if by the commandement of the magiſtrate, they doo that, which they are comanded, they be not priuate perſons anie more. It is lawfull for a traueller, by the waie, to defend himſelfe againſt théeues, if they aſſaile him: if he ſlaie them, he is diſcharged. For the magiſtrate, at ſuch a time, armeth him; he cannot be ſued at the common lawe: the prince would not that his ſubiect ſhould periſh.
I anſwer: that the ciuill lawes hauehave giuen no ſuch authoritie to the huſband and the father of the adultereſſe; but onlie hath pardoned their gréefe conceiued: they command not that this ſhould be doone, but they command the ſoldiers and executioners [to doo their duties.] Wherefore the ſimilitude is not alike. So alſo it may be anſwered of the trauelling man, which is ſet vponupon by théeues: if he defend himſelfe with a mind to kill the théefe, he is not abſolued; but if he kill him by chance, or (as they ſaie) by accident, then he is abſolued. The caſe is not all one: for he hath no time to call vponupon the magiſtrate, he cannot ſue him at the lawe. But the huſband might ſhut vp the adulterer in his houſe, he might call for witneſſes, and deale with him by the lawe. Alſo the Eccleſiaſticall writers, and the Canoniſts doo not allow, that when accuſation is had, the adulterous huſbands ſhould be heard, and not the adulterous wiues. Neither would they allow accepting of perſons; to wit, that onelie the common perſons, and not the nobler ſort ſhould be put to death.
28 Alſo they are againſt that rigour, that if the adulterer or adultereſſe eſcape, there ſhould be no reconciliation had. Auguſtine, Looke art. 30.in his booke a little before alledged, will hauehave it to be otherwiſe; If the woman (ſaith he) repent, let there be a reconciliation. He alledgeth reaſons thereof; God muſt be followed, his church dooth oftentimes commit fornication, as we knowe was doone in the time of the Iudges and Kings: yet he ſaith by Ieremie; Ierem. 3, 1.Ye will not receiue your adulterous wiues, I doo otherwiſe. The ſame dooth Hoſea affirme in the name of God. Hoſe. 1, 14. and 2, 3.If examples ſhall beare ſtroke, Dauid did ſo. Michol the daughter of Saule was giuen vntounto another: 2. Sam. 3, 14that, which was committed, was adulterie; for in that meane while there was no diuorſe: Dauid required to hauehave hir againe. Alſo Iuſtinian did moderate that auſteritie: for when the adultereſſe had béene thruſt into a monaſterie, the huſband might demand hir againe within the ſpace of two yéeres. But thou wilt tell me: Auguſtine ſaith; She is not woorthie to be my wife, ſhe is vnpure and polluted. Why dooſt thou caſt hir vnpure, which hath repented hir ſelfe? She is reſtored vntounto the kingdome of heauen by the keies; and may ſhe not be reſtored to thy bed? Wouldeſt thou hauehave thy ſelfe to be ſo ſerued?
On this wiſe did the Councell of Arles determine: which we read in the Extrauagants De adulterijs, in the chapter Si vir ſciens. The words of the Councell be theſe; If an adultereſſe be penitent, the man ought to take hir againe. The gloſſe ſaith; Is it the part of honeſtie, or of neceſſitie? He ſaith: of honeſtie. I infer; If it be of honeſtie, in reſpect of godlineſſe, it is alſo of neceſſitie. For we muſt doo all things, which apperteine to honeſtie: as we hauehave in the fourth chapter to the Philippians; Phil. 4, 8.Whatſoeuer things be true, whatſoeuer things be honeſt, whatſoeuer things be iuſt, thinke vponupon them. He ſaith, that it is not of neceſſitie, bicauſe he cannot be compelled thereto by an outward lawe. It is added; But not often. That ſéemeth (ſaith the Gloſſe) to be repugnant to the Goſpell, when it ſaith; Seuentie times ſeuen. He anſwereth, that he may forgiue hir ſo often as he will; but the church will not often put it ſelfe to be a meane for the obteining of this reconciliation, leaſt it ſhould ſéeme to open a windowe vntounto wickedneſſe. Moreouer, the church thinketh that it ſhould be but feigned repentance, if this ſhould be often doone. He addeth; Peraduenture theſe things are ſpoken for terror ſake. But if ſo be ſhe doo not repent hir, ſhe ought not to continue in matrimonie: for then the huſband might ſéeme to be the mainteiner of adulterie. And in the Councell of Arles, it is ſaid; he ſhould ſéeme to be a partaker of iniquitie.
Ierom, vponupon the 19. chapter of Matthew, writeth; She that hath diuided one fleſh into an other, ought not to be kept; leaſt the huſband ſhould be vnderunder the curſſe. For he that reteineth an adultereſſe with him, wanteth wiſdome. If he be vniuſt, which accuſeth an innocent, he ſéemeth vnwiſe that reteineth an offender. But theſe things muſt be vnderſtood [with this exception; Whether the huſband hauing diſmiſſed his wife, may accuſe hir of adulterie] that vnleſſe repentance be had. Moreouer, it is demanded; whether the huſband ſhall accuſe his wife of adulterie, when ſhe is diſmiſſed? Some thinke, that of charitie ſhe ought not to be accuſed; if ſhe repent. But others ſaie, that the crime is not to be forborne; and that priuate magiſtrates ſhould put to their helping hand, to the rooting out of wickedneſſe; and that publike weales cannot ſtand, vnleſſe that great offenſes be puniſhed; Deut. 13. 5.alſo that the lawe of God would hauehave euill to be rid from amongſt men. It is certeine in déed, that if adulterie ſhould continue ſtill, the adulterer ought to be accuſed; that at the leaſt wiſe, by that meanes, he might be made the better, if other conuenient remedies were vſed before: as if he had warning giuen him by his fréends. But admit, that the partie which ſinned doo repent, ought he notwithſtanding to be accuſed? Surelie, if the crime were openlie knowne, and the partie innocent receiue the adultereſſe into fauour by reaſon of repentance, he ſhall ſéeme to mainteine ſinne. Men knowe of the adulterie, but of the repentance they knowe not; they will thinke that he vſeth brothelrie. If he accuſe hir, he ſhall at the leaſt wiſe purge himſelfe, and auoid the blame of infamie.
Admit that the crime be not ſo commonlie knowne, and that the partie in fault be repentant: but ſhe hath conceiued, and is to be deliuered of a child: if the huſband accuſe hir not, the iſſue ſhall be his ſuppoſed heire; it ſhall not be lawfull for him to diſherit him: there will be an iniurie doone vntounto his lawfull begotten children. What ſhall be doone in this caſe? In theſe two latter caſes; namelie, if the crime be openlie knowne, and the child conceiued; counſell is giuen of the more learned ſort, that the huſband ſhall not go vntounto the magiſtrate, to deſire the puniſhment to be executed on hir, which is penitent; but that, for the auoiding of his owne infamie, he ſhall repaire to the church, and ſignifie the cauſe: whereby they may vnderſtand, that the partie dooth repent. Alſo, if the caſe be ſhewed to certeine perſons; not for puniſhment ſake, but to the intent they may knowe that the fruit is conceiued by an adulterer, which afterward alſo he might diſherit, there is found a remedie for theſe euils. Ioſeph, Matt. 1, 19when he ſawe his wife Marie to be great with child, not by him, was troubled, he would not defame hir, and yet was he a iuſt man. On the one part he ſaw it belonged vntounto iuſtice to accuſe hir; on the other part, he was troubled in himſelfe, not without the ſpeciall prouidence of God. While he was in a perplexitie, which waie to take; GOD was at hand with him. So will he likewiſe doo vntounto the godlie in theſe caſes, he will be preſent with them, and will comfort them. Theſe queſtions we fall into, by reaſon that adulterie is not puniſhed by death.
29 Thus hauehave we ſéene what the fathers hauehave diſallowed in the ciuill lawes. Now, Eccleſiaſticall puniſhments of adulteriehéereafter let vsus ſée, what maner of eccleſiaſticall puniſhments they hauehave béene accuſtomed to laie vponupon adulterous perſons. Cyprian, in the fourth booke, and ſecond epiſtle vntounto Antonianus, writeth; that There were certeine biſhops, which gaue no peace vntounto adulterers; that is, they admitted them not to the communion, but would hauehave them perpetuallie to be excluded. Others gaue them peace, but yet after a certeine time. Cyprian thinketh, that a moderation muſt be vſed; leaſt they be vtterlie excluded from Chriſt, and caſt awaie all louelove of religion. He ſaith alſo, that there muſt be a triall made of their repentance for a certeine time: the ſpace of time he appointeth not. The Synod of Ancyra, in the 19. chapter, appointed ſeuen yeares: which ſpace of time the Eliberine Councell abbridged vntounto fiue years. Whereby it may appéere, that it was in the choiſe of the prelats of the church. The Councell of Neocaeſaria decréed, concerning Clergie men; that If the wife of a Clergie man fall into adulterie, he is at his choiſe, whether he will ſtraitwaie refuſe hir, or elſe depart from the miniſterie. They ſéeme to admit no reconciliation in the clergie. I thinke the cauſe ſéemeth to be, Reconciliation not admitted in the clergie.for that the familie of the miniſter ought to be of good report. Moreouer, they added; that a laie-man, whoſe wife was fallen into adulterie, ſhould not be admitted into the miniſterie. I thinke the cauſe to be this; for that he firſt ought to hauehave gouerned well in his owne houſe. 1. Tim. 3, 4.But there was a ſuſpicion of negligence, ſéeing his wife did fall into adulterie. If a clergie man had not reiected his wife, when ſhe fell into adulterie, the Eliberine Councell gaue him no peace or fellowſhip with others, during his life.
The Councell of Toledo decréed otherwiſe (as we hauehave it in the Decrées, 32. cauſe, queſtion the ſixt, in the chapter Placuit; to wit, that A clergie man, whoſe wife did fall into adulterie, might kéepe hir at home; howbeit tied for certeine yéeres, with a faſting that ſhould ſerue to kéepe hir in health, but not that ſhould make hir to die. In the Decrées, the 81. diſtinction, in the chapter Romanus, the chapter Presbyter, and the chapter Diaconus; Adulterous miniſters be vtterlie remooued from the miniſterie. And the Eliberine Councell did giuegive no peace vntounto biſhops, prieſts, or deacons (being fallen into adulterie) no not when they ſhould die: no more alſo did they to the common ſort of men, which had committed adulterie more than once or twiſe. They found alſo another kind of remedie, but that was in caſes of ſuſpicion. In the Extrauagants De iudicijs, in the chapter Significasti; If a miniſter were ſuſpected of adulterie, and the crime could not be prooued, Canonicall purgation.they vſed the canonicall purgation; namelie, that he ſhould find out other fiue miniſters, which would affirme by oth, that they could not beléeue this of him. But ſuch it behooued theſe miniſters to be, as they might be ſure would not forſweare themſelues. They vſed alſo another thing; namelie, that an adulterer ſhould not contract matrimonie with the adultereſſe, if hir firſt huſband had béene dead. But this they vnderſtood [conditionallie] if ſo be they had contracted while the other ſpouſe were aliue; or had conſpired the death of the huſband.
A decree of Iuſtinian.There reſteth to declare what we are to thinke of the decrée of Iuſtinian. As touching that, that a woman, after ſhe were beaten, ſhould be driuen into a monaſterie, and not be puniſhed with death as an adulterer: I perceiue not by what reaſon that might be prooued. The crime belongeth vntounto both, as well to the man as to the woman: why then is the puniſhment vnlike? The ſinne of the woman dooth no leſſe ſtaine the familie, than the ſinne of the man; yea and that more. Perhaps it will be ſaid, that ſhe is weake: but if that reaſon ſhould take place, no woman ought to be puniſhed with death. Wherefore vnderunder correction of ſo notable a man, the inequalitie of the puniſhment can hardlie be allowed: but I thinke he did this in fauour of the biſhops. Moreouer, he is blamed, inſomuch as he ordeined; that If a huſband ſhall not demand his wife againe within two yéeres; or elſe that he die, ſhe ſhould be conſtreined to liue continuallie in the monaſterie without marriage. Vndoubtedlie that is againſt the holie ſcriptures. What if ſhe be incontinent, as ſhe gaue a token thereof by reaſon of the crime of adulterie? If ſo be that the magiſtrate grant life vntounto a malefactor, he ought alſo to grant thoſe things, which perteine to a godlie life. Otherwiſe, what profit commeth by putting hir awaie; vnleſſe it be to make hir woorſe? I hauehave declared what I thinke concerning the decrée of Iuſtinian.
30 Now let vsus come vntounto the other queſtion; namelie, Whether women doo ſinne in adulterie more greeuouſlie than men.whether a man and a woman doo ſinne, the one as gréeuouſlie as the other, in the caſe of adulterie; and whether they both are to be driuen vntounto one puniſhment, ſo that in all reſpects they ſhould be in all things equall. VntoUnto verie manie it hath not ſo ſéemed good; and that verelie for diuers cauſes. They would hauehave the caſe to be more gréeuous touching women than touching men: and the cauſes, which lead them thereto, are theſe. [Firſt] bicauſe they perceiued that the ciuill lawes doo admit no accuſation of the huſband againſt his wife, or of the father againſt his daughter; but not ſo of the woman, although ſhe take hir huſband with the ſhamefull act, and hauehave witneſſes of the ſame: as we hauehave in the Code, within the title Ad legem Iuliam de adulterijs, in the firſt lawe. Wherefore they in old time accounted the fault to be more gréeuous [in the woman.] Alſo they weigh this, that a woman being taken, is ſtraitwaie infamous: but a man muſt be firſt accuſed and condemned, before that he be ſtained with infamie. Thirdlie, it was ſometime lawfull, before the lawe Iulia, for huſbands to kill their wiues: as Cato teſtifieth in the place aboue recited; The lawe (ſaith he) is to ſlaie hir that is taken. But it is not lawfull for hir to touch thée once with hir finger, if ſhe perceiue thée to commit adulterie. Herevnto Plautus pleaſantlie alluded in the comedie Mercator. In verie déed women are here bound to ouer-ſtreict a lawe: as Plutarch (vponupon the life of Romulus) reporteth, that it was lawfull for the huſband to put awaie his wife for adulterie; but not ſo on the contraie part. Which lawe ſéemed alſo to like Conſtantine: as we read in the Theodoſian Code, De adulterijs, in the chapter Placuit; Let the huſband (ſaith he) put awaie his wife for adulterie, but let not hir doo the ſame vntounto hir huſband, though he be an effeminate perſon, or a muliercularian. For this terme he vſeth.
Alſo they héerby conſider of an inequalitie; for that the woman, if ſhe kept ill companie with an other mans bond-man, ſhe was made a bond-woman; but it is not taught that it was ſo doone vntounto men, if they ſinned againſt bond-women. Moreouer, they ſaie, that luſt is alwaies counted to be more ſhamefull in women, and that therfore the crime ſhould be more gréeuous in them. Further, they ſuppoſe that a man, although he liue in matrimonie, if he kéepe ill companie with others, being looſe or ſingle women (as they call them) he committeth not adulterie: when as on the contrarie part, a woman being married, may hauehave fellowſhip with no man, but ſhe falleth into adulterie. And they alledge that which Suetonius writeth vponupon the life of Veſpaſian; that he cauſed the Senate to decrée, that a frée-woman, which ioined hir ſelfe with bond-men, ſhould be conſtrained to bondage: but decréed not ſo, touching men. Howbeit, this and the fift argument is all one. There is an other argument taken Ex Orificiano, out of the Code, in the lawe Illuſtris; that It is a farre more ſhamefull thing for a woman to hauehave baſtards, that is, by one which is not a lawfull huſband, than it is for a man to hauehave baſtards. Eccleſiaſticus is alledged, which in the 7. 24. & 26. chapters, verſe. 26. verſe. 13.ſpeaketh manie things of the cuſtodie, which the father ought to hauehave of his daughters, for the conſeruation of their chaſtitie; but ſpeaketh nothing of his men children. They alſo conſider this; that A woman, being taken in adulterie, looſeth hir dowrie and donation, granted in reſpect of marriage, whereas the adulterer ſuſteineth no loſſe. In the Extrauagants De donationibus inter virum & vxorem, in the chapter Plerúnque, in the end; Adam and Eue, being found to be in one kind of ſinne, hauehave not both one puniſhment: Eue is puniſhed more gréeuouſlie.
That adulterous men ſinne more greeuouſlie than the women.31 On the other ſide, the cauſes ſéeme to be verie great, which perſuade otherwiſe. The firſt is, that a woman is more weake and vnperfect [than a man;] ſhe wanteth vnderſtanding and iudgement. Theſe things ſéeme to ſerue for diminiſhing the fault. And manie lawes perſuade vsus, that in puniſhing, we ſhould hauehave a conſideration of the ſex. Some of the lawes I will recite. In the Digeſts Ad legem Iuliam peculatus, it is ſaid; that In puniſhment, there muſt be conſideration had of the ſex: the lawe beginneth, Sacrilegij poenam. Alſo Ad legem Iuliam de adulterijs, in the lawe Si adulterum, in the Paraph Fratres, and in the Paraph Iacestam, they would hauehave a difference to be conſidered of in the ſex, bicauſe women are not forced to be ſkilfull in the lawes, ſometimes they be deceiued: they thinke that to be lawfull, which is not lawfull. Alſo the Eccleſiaſticall lawes teach, that there ought to be a conſideration had of the ſex. In the Extrauagants, De homicidio, in the chapter Si dignum, in the Code, Ad legem Iuliam maieſtatis, in the lawe Quiſquis, in the Paraph Filias; There is more fauour ſhewed to the daughters of conſpirators, than vntounto their ſonnes. In the Decrées, cauſe 32. queſtion 6, the chapter Indignatur, there is conſideration had of women, euen in the ſelfe ſame cauſe of adulterie.
There be ſaiengs alſo of moſt excellent men, which be agréeable to this ſentence. Auguſtine, in his treatiſe De adulterinis coniugijs ad Pollentium, citeth the letters written by Antonius Pius which we may read in the Gregorian Code; that It is verie vniuſt, that men ſhould require that faith of women, which themſelues will not ſhew. In the Digeſts De adulterio, in the lawe Si vxor, in the Paraph Si iudex; It is commanded, that if the iudge hauehave knowledge of the adulterie, let him looke whether the huſband hauehave liued chaſtlie. And ſo the fault of the woman is mitigated, bicauſe the men themſelues by their ill liuing be cauſes of their vncleane life. Whervpon Seneca, in his 94. epiſtle vntounto Lucillus, ſaith; that It is a moſt vniuſt thing for men to exact faithfulnes of women, when as they themſelues be the corrupters of other mens wiues. Neither did Auguſtine put this matter in ſilence, who ſaith, that Vir; that is to ſaie, Man, hath his name of Virtus, that is, Vertue; and that therefore he ought to excell the wife in all vertues and chaſtitie. In his litle booke De decem chordis, (and it is alſo read in the 32. cauſe, queſtion 5. in the chapter Non moechaberis,) ſaith, that The huſband is the head of his wife; if the head fall into adulterie, and the wife be chaſt, he is a man turned vpſide downe, the head is vnderunder the féet.
It hapneth ofttimes, that the adulteries of the wife, are reuengements of an adulterous huſband. It is ſaid of Clytemneſtra, that ſhe gaue the power of hir bodie to Aegiſtus, bicauſe ſhe heard that Agamemnō preferred Chryſis before hir. That ſuch a puniſhment is brought by the iudgement of God, it appéereth that Iob vnderſtood, who in the 31. cha. ſaith; verſe. 9.If my hart hath been carried aſide to a ſtrange woman, and if I hauehave lien in wait at my neighbors doore, then let my wife grind vntounto an other man, and let hir yeeld hir bodie to other men. So then there be reaſons to be made on both parts. What ſhall we ſaie? If credit be giuen to the Schoole-diuines, An vnfolding of the queſtion.the diſtinction muſt be made, which is mentioned in the fourth booke of ſentences, in the 35. diſtinction. If the faith of wedlocke be conſidered, the ſinne is equall on both parts; either is bound vntounto other, whether the woman giuegive hir ſelfe to another, or elſe the man commit adulterie. If the condition of the perſon be reſpected, ſéeing man is the more perfect, he hath the firmer iudgement, and ought to excell his wife; his ſinne is more gréeuous than hirs. Howbeit, if we note the confuſion of things, the ſuppoſed heires, and the ſhame of the familie, the woman is more gréeuouſlie charged.
But as touching the verie lawe it ſelfe of wedlocke, they ſaie well; that the bond is all alike, that ſinne is committed as well by the one as by the other, they muſt be brought to an equalitie. Equalitie we prooue out of the holie ſcriptures; VntoUnto one Adam, the Lord gaue one Eue; and to one Eue, he gaue one Adam: and he ſaid; Gen. 2, 24.They ſhall be two in one fleſh. Paule, when he treateth of theſe things in the firſt to the Corinthians, the ſeuenth chapter, ſaith; that The wife hath not power ouer hir owne bodie, verſe. 4.but the husband. And on the other ſide, he maketh this lawe equall to the one and the other. Neither dooth he ſpeake vntounto the one partie, of rendering due beneuolence; but vntounto them both. And if they ſhall thinke good to ſeuer themſelues for praier ſake, he willeth that the ſame be doone by both their conſents. In caſe of religion, if they will not dwell togither, ech partie is ſet at libertie. The ſame is alſo ſpoken there concerning the vnbeléeuing huſband. The lawe of God commandeth, that both, as well the adulterer, as the adultereſſe, ſhould be ſlaine. Séeing therefore he maketh this equalitie, we alſo ought to followe the ſame.
An anſwer vntounto the contrarie arguments.32 Now it remaineth, that we anſwer to the arguments. It was ſaid, that a woman muſt not be heard. This lawe is ciuill, and refuſed of the Eccleſiaſticall writers; and that iuſtlie. To the firſt.Ierom, in his epiſtle to Oceanus, vponupon the death of Fabiola, wrote a verie excellent ſentence; Thoſe things, which in the holie ſcriptures are commanded vntounto men, doo redound vntounto women. Wherefore, if it be lawfull for a man to ſtart from his wife, for the cauſe of adulterie; it is alſo lawfull vntounto the wife. Among vsus there is the ſame libertie, and the ſame bondage vntounto both parties: to correct after a ſort the ciuill lawes. Both parties muſt be heard. Touching infamie alſo, To the ſecond.it is mans ordinance. Euen as praiſe is called the celebration of other mens vertues; ſo infamie is to diſpraiſe that, which is in another. And it may be, they will ſpeake more of women than of men. But with God this fame is of no importance. There is more ſpoken of the women, by reaſon of the harme which they bring; and bicauſe they make a confuſion in families. To the third.As concerning that it hath béene lawfull for men to kill their wiues, and not for the wiues, their huſbands: I anſwer; If it were lawfull, yet that lawe was not iuſt, as the fathers thought. I adde: It is no maruell if it were not lawfull vntounto women; for they handle not weapons, but are ſubiect vntounto men; and in this reſpect there is ſome inequalitie.
And in that there was vſed to be a putting awaie of the woman by the man: To the fourth.I ſaie it was a decrée of men, as Ierom citeth in the ſentence now alledged. Aſſuredlie, Theodoſius (as we find in the Code De repudijs, in the lawe Conſenſus) giueth authoritie vntounto the wiues, to put awaie their huſbands: and he declareth manie cauſes why. There is an excellent place of this matter in the Decrées, cauſe 32. queſtion the fift, in the chapter Christiana religio: where it is written, that Adulterie is condemned in both ſexes alike. And bicauſe ſome were offended, for that they ſawe men oftentimes put awaie their wiues, and wiues to be more often excommunicated for adulterie than huſbands: anſwer is made, that it is not, bicauſe ſinne is leſſer in man than in woman; but for that men might hauehave more frée authoritie againſt the women. And therefore, forſomuch as the church dooth not iudge, vnleſſe it be in matters which be manifeſt, it commeth to paſſe, that women are more often taken than men, and are excommunicated, & ſuffer diuorſement. Alſo we knowe, that in the old lawe, Deut. 24, 1.it was lawfull for men to giuegive a bill of diuorſement vntounto women; but contrariewiſe, that the ſame was not lawfull for women: therefore it ſéemeth, that God did attribute more vntounto men. I anſwer, that the caſe muſt be weighed, for the which God would hauehave this bill of diuorſement to be giuen. It had béen an eaſie matter for men to kill their wiues, when as they might not be rid of them: but this was leſſe to be feared of women, bicauſe it dooth ſeldomer happen.
Another argument was, To the fift.that it was prouided by the lawes; that If a woman coupled hir ſelfe with another mans bondman, or kept ſhamefull companie with him, ſhe ſhuld be brought into bondage: but it was not ſo ordeined againſt men, that they ſhould become ſlaues; according as Veſpaſian perſuaded the Senate of Rome, as Suetonius reporteth. But it is anſwered, that men made this decrée. If it had béene in women to hauehave decréed the ſame, they would hauehave prouided otherwiſe. Moreouer, it appéereth, that Plato, in the ſecond booke of his lawes, counted both alike; both the men, which kept vnlawfull companie with bond women; and the women, which did the like with bondmen. Beſides, they that would make a difference, are in the danger of that ſaieng of Paule; Rom. 2, 1,In the ſame thing that thou iudgeſt another, thou condemneſt thy ſelfe, for thou dooeſt euen the ſame things that thou iudgeſt. But it was added; That luſt hath alwaies béene counted a more ſhamefull thing in women, than in men. To the ſixt.Of whom hath it béene ſo accounted? Of men. But, will we ſaie, is it ſo, if we reſpect the will and commandement of God? Man and woman vndoubtedlie be all of one lumpe. Further, women be the vnperfecter and of the leſſe iudgement: it is mans part to guide them, and to hauehave charge of them. How can the luſt be more filthie in woman than in man? Vnles perhaps we will hauehave this reſpect, that womens ſhame is more manifeſt, they become with child, the matter apéereth, the ſhew is more euident in them: but if we conſider the commandement and lawe of GOD, the caſe is all one with them both.
33 But they ſaie; that It is the common opinion of men, that if a man, ioined in matrimonie, hauehave copulation with a woman, being frée and at libertie, he committeth not adulterie; but that whenſoeuer a woman that is married, hauehave copulation with an other, ſhe is counted an adultereſſe. So as there is a difference. To diſſolue this reaſon, manie things are to be ſaid. The Etymologie of adulterie.Firſt, if we ſéek the etymologie of the word adulterie; it ſignifieth, To go to the wedlocke bed of an other. Wherefore, in what ſort ſo euer it be doone, be it of man or woman, it is all one. Indéed I knowe, that the ciuill lawes hauehave iudged and determined, that it is adulterie; when there is wicked ſocietie with a married woman. For if the ſame be either widowe, or virgine, they ſaie it is whooredome: and that adulterie is onelie to hauehave fellowſhip with hir that is married. This is the opinion of the lawiers, as appéereth Ad legem Iuliam de adulterijs, in the lawe, which beginneth Inter liberas perſonas. Adulterie defined.Wherevpon Azo, a famous lawier, defined Adulterie to be the lieng with the wife or ſpouſe of an other man; and that, to ſpeake properlie, (which I adde, bicauſe Ierom, in his 2. treatiſe againſt Iouinian, towards the end, writeth the opinion of Xyſtus one of Pythagoras ſect, that if the huſband moderate not himſelfe in concupiſcence with his wife, he committeth adulterie, but this is not proper adulterie) the deflowring of cō cubins or handmaidens, which be ioined in marriage with bond-men, is not taken for adulterie.
Indéed it was ſinne, and there was an action commenſed, either of the law Aquilia, or elſe of treſpaſſe; as againſt a ſeruant corrupted, but not to appeach him of adulterie. But we are to iudge otherwiſe by the holie ſcripture. The lawiers by their leaue hauehave not well defined adulterie. This did Chryſoſtome note, who in his epiſtle to the Theſſalonians writeth thus; The Romane lawes puniſh women, which be taken in adulterie, but men they doo not puniſh, yet God will puniſh them; for without all doubt, it is adulterie. Auguſtine, in his booke De fide & operibus, the 18. chapter, ſaith; that They be adulterers, which hauehave other mens wiues in place of their owne; and adultereſſes, which hauehave other womens huſbands. And ſo a woman, that is ſet at libertie, and vſeth a ſtrange man in ſtéed of hir owne, committeth adulterie. The ſame Auguſtine, De bono coniugali contra Iouinianum, the fourth chapter, writeth; An other definitions of adultrie.that Adulterie is a violating of the faith of wedlocke. When a man therefore hath acceſſe to an other mans wife, whether ſhe be frée, or knit in marriage, adulterie is committed by him, that is the huſband. And a little after he ſaith; It is adulterie, when there is carnall fellowſhip with an other man, or an other woman, againſt the couenant of marriage. How oft therefore ſo euer it be doone againſt this couenant, by the teſtimonie of Auguſtine it is adulterie.
If I ſhould define it, thus would I ſaie; that Adulterie is a venereous action, wherein there is carnall fellowſhip with that fleſh, which is not bound to it ſelfe by the lawe of matrimonie, but vntounto an other. Now let vsus ſée the parts of the definition. Action is the genus, or generall word: and bicauſe the actions of men be diuers, venereous is added for the difference. Againe, there is an other difference; in that the fellowſhip is with that fleſh, which is bound vntounto an other, by the faith of matrimonie. Why is it ſaid; Not vntounto it ſelfe, but, vntounto an other? To the intent we may vnderſtand, that in the polygamie, which was in old time, there was no plaine adulterie. For one of the wiues, when ſhe was ioined with a huſband, was ioined with that fleſh, which was alſo tied to another woman. Therfore it is ſaid; Which is not ioined vntounto it ſelfe, but vntounto an other, by the faith of matrimonie. Further, if we will more narrowlie examine that péece of the ſentence; To hauehave carnall fellowſhip, may be vnderſtood, to be either in act, or cogitation. For Chriſt ſaith; Matt. 5, 28He that ſhall looke on an other mans wife, to luſt after hir, hath alreadie committed adulterie in his hart. But héere we ſpeake of adulterie, that breaketh out into act; not of that, which as yet is within the hart.
34 Moreouer, it was ſaid to be more ſhamefull for women to hauehave baſtards, than it is for men. This alſo hath procéeded of mans reaſon: a ſhame it is, both to the one and to the other; but perhaps it appéereth more in women than in men. Thoſe places of Eccleſiaſticus, which vrge parents to kéepe their daughters, or the bodies of their daughters, hauehave not reſpect vntounto this place. No rather, the wiſe man dooth conſider, that if daughters be corrupted, they are to bring great harme & ignominie to their fathers houſe; and the father is accuſed of negligence. But men children muſt alſo be well brought vp, howbeit, the fowlnes of this fact, in this crime, appéereth elſe-where, not in the fathers houſe. Neuertheles, theſe things bring not to paſſe, but that they both commit ſin. An other argument; But wiues looſe their dowrie, whereas adulterers be not ſo puniſhed. That is falſe: for euen as if matrimonie be vndoone, by the fault of the woman, ſhe looſeth hir dowrie and donations giuen in reſpect of marriage; ſo, if it be doone through the mans fault, he looſeth the dowrie it ſelfe and donations alſo, and muſt reſtore them vntounto hir.
Againe, ſomwhat was ſaid of Adam and Eue; that they were in the like fault, & yet Eue was more gréeuouſlie puniſhed than Adam. A compariſon of the ſinne of Adam and Eue.Here may either of both be ſaid; either that the ſinne was not of like weight, or elſe that the puniſhment of Eue was not more gréeuous. It is excuſed by ſome, that the mans fault was the greater. For it is ſaid; Curſſed is the earth for thy ſake, in ſorrowe ſhalt thou eate of it, thorne and thiſtle ſhall it bring foorth vntounto thee, and thou ſhalt eate of the herbe of the feeld; in the ſweate of thy face ſhalt thou eate thy bread, &c. Theſe euils were continuall vntounto man: he ſhould labour, he ſhould eate in great ſweat and trauell, and the earth gaue not vntounto him the fruit that he looked for. Women ſéeme to be leſſe puniſhed; onelie the paines of child-birth and conceiuing are laid vponupon them, the which be not perpetuall: but the labours of men doo alwaies continue. Further, the man ought to prouide, not onelie for himſelfe, but alſo for his wife, children, and for his whole familie. But if thou wilt ſaie, that the wife is ſubiect vntounto the huſband, and muſt be vnderunder his gouernement: this importeth not much; for by the verie conſtitution it ſelfe, ſhe is inferiour vntounto man. Wherefore it might by this meanes be denied, that woman is more gréeuouſlie puniſhed than man.
But if we would grant vntounto this, we might alſo ſaie on the other part, that the ſinne in woman was ſomewhat more gréeuous; namelie, bicauſe ſhe was ſeduced by the diuell, and ſo ſeduced, as ſhe thought ſhe ſhould become equall vntounto God, and this ſhe verie much deſired. Neuertheleſſe, Adam beléeued it not; bicauſe he ſawe it was not poſſible to be: and therefore the apoſtle ſaith, that he was not ſeduced, but did onelie eate; to the intent he might obeie his wiues mind, and made more account of his wife than of God; therefore he was not deceiued with the ſame kind of errour. Moreouer, the woman did not onelie ſinne, but ſhe alſo induced hir huſband to ſinne. But on the other part, ſhe is ſomewhat lightened; bicauſe ſhe was the vnperfecter, and was ſeduced. Howbeit, if anie of their ſinnes were more gréeuous than other, the womans ſinne was to be weighed the greater. This is the opinion of the Maiſter of the ſentences, in the ſecond booke, diſtinction the 12: and he alledgeth manie places out of Auguſtine. But I, for my part, would ſaie; that the mans ſinne was more gréeuous, and that his puniſhment was the greater, by reaſon of his perfection and excellencie. Wherefore this argument maketh nothing to the purpoſe; either the puniſhment was of equalitie, or elſe the circumſtances were not alike gréeuous to be aggrauated to them both. The circumſtances were manie, ſome were more gréeuous in Adam, and ſome in Eue.
35 Alſo it was alledged on the contrarie part, that the ſinne is leſſe in women: Why a conſideration muſt be had of the ſex.for a conſideration ſhould be had of the ſex. Indéed this is to be granted: yet the cauſe muſt be ſearched out, why thoſe lawes be fauourable vntounto the ſex. And there is a cauſe brought by the lawes themſelues; namelie, that women are not driuen to hauehave the knowledge of all lawes and cuſtoms: and therefore may the more eaſilie erre; and the error dooth ſomewhat mitigate the fault. But here this erring hath no place: for there is no woman ſo fooliſh, but ſhe knoweth, that ſhe ought to kéepe hir faith and promiſe with hir huſband. But in inceſt, they rather forgaue vntounto women than vntounto men; bicauſe they knew not thoſe degrées, wherein it was lawfull or not lawfull to be married: and therefore they were not ſo gréeuouſlie puniſhed. Whether adulteries of men muſt be puniſhed by adulteries of women.And wheras it was alledged, that the adulteries of the men are oftentimes puniſhed by the adulteries of the women: as it hath béene ſaid of Agamemnon and Clytemneſtra. We anſwer, that ſuch reuenges are not to be allowed; for that they are repugnant to the word of God: and therefore we allow no ſuch forms of reuenging.
True indéed it is, that ſinnes are puniſhed with ſinnes; and he that kéepeth not faith himſelfe, muſt not looke to hauehave another kéepe the ſame with him: neuertheleſſe, this is doone by the order and prouidence of God. It is not lawfull for anie man to doo ill, bicauſe another hath ſinned: for by that meanes, euill would growe till it were infinite. In that women are ſomewhat forborne in the great offenſe of treaſon, it is no maruell: for, Why in caſe of treaſon children are puniſhed for the parents.the cauſe why that the ſonnes of conſpirators, which hauehave ſinned againſt the prince, are puniſhed in ſuch ſort as they be, is; leaſt that if they ſhould reteine the authoritie and riches of their parents, they might imitate their ſinnes; or elſe reuenge their death: the which in daughters is not to be feared. But yet it muſt not therefore be concluded, that there is a difference as touching the crimes. Bréeflie, I allow well inough that diſtinction of the Schoolmen; that if the faith of matrimonie be conſidered, the ſinne is of like equalitie, both in the adulterer and adultereſſe. If the ſtate [of the parties] be conſidered, the man ſinneth more gréeuouſlie: but if we regard the harme that is doone vntounto the familie, it is to be laid to the womans charge. And, that man ſinneth more gréeuouſlie, in reſpect of that which belongeth to his ſtate and degrée, it is manifeſt; not onelie by this, that he is of a greater iudgement, but we may alſo perceiue it, euen by the holie hiſtorie. Nathan was not ſent vntounto Bethſabe, but vntounto Dauid.
Puniſhment of death for adulterie, is not well intermitted.36 And thus much hauehave we ſaid concerning the ſecond queſtion. Now let vsus come to the third; namelie, what we are to determine of theſe puniſhments intermitted. Verelie, if I ſhould ſpeake fréelie what I thinke, it is not well ordered, that the puniſhment of death is not in vſe; ſéeing the ſame agréeth with the woord of God, and with diuine lawes, which ought to be of great importance with vsus. In Leuiticus, and in Deuteronomie, Leui. 20, 10. Deut. 22, 22God ordeined, that both the adulterer & adultereſſe ſhould be ſlaine. Secondlie, I proue this by the verie order it ſelfe of the commandement of God. Let vsus laie before our eies the ten commandements. As touching the worſhipping of the true God, it perteineth to the firſt commandement: he that ſhould doo otherwiſe, was to ſuffer death. Of taking the name of the Lord in vaine, it is ſaid; If there be anie blaſphemer, let him die the death. Of kéeping holie the ſabboth daie, we read; that he which did gather ſtickes on the ſabboth daie, was commanded to be ſlaine. Of the fift precept it is decréed, that if any man were rebellious againſt his parents, he ſhould be brought to the iudges, and ſlaine. Of the ſixt precept; He that hath ſlaine an other man, let him periſh, and let him be plucked euen from the altar. Then followeth the precept of adulterie; there the ſword ſtaieth his execution, and procéedeth no further. VntoUnto ſtealing and falſe-witneſſe-bearing, there is no puniſhment of death appointed. Neither hath concupiſcence any puniſhment of bloud belonging therevnto.
Séeing the order is on this wiſe, I would know, why the men of our time inuert the ſame? But they ſaie that the Common-weale is more diſturbed by théeues, than by adulterers: for we muſt hauehave a conſideration vntounto the commoditie of the Common-weale. But I denie that théeues doo more diſturbe the Common-weale. If they robbe and ſlaie by the high waie in the night, and lie in wait for mens liues, I might eaſilie grant it: but abſolutelie of ſtealing I cannot ſay ſo. Doubtles, if our iudgement be right, who had not rather looſe ſomewhat of his goods and ſubſtance, than that his wife ſhould be diſhoneſted? Howbeit, ſuch a couetouſneſſe there is at this daie ingraffed in men, that they make more accompt of their monie, than of their wiues honeſtie. Wherefore I ſaie, that there is ſome iniurie doone vntounto théeues, in ſo much as they be hanged; and adulterers, who ſinne more gréeuouſlie, are ſuffered to liue. The fourth reaſon is, that in ſuffering adulterers to liue, they intricate vsus with verie hard queſtions. Firſt there is brought in by the papiſts a diuorſe from the marriage bed, but not from the bond of matrimonie. Moreouer, there is diſputation, whether the innocent partie may contract matrimonie, while the other partie liueth. And there is a controuerſie, whether the adultereſſe, which ſuruiueth, may marrie againe with an other. Further, they diſpute of reconciliation betwéene adulterers, and by this eaſie meanes, cities are filled with vncleanneſſe and adulteries; and men would after a ſort be more pitifull than God himſelfe.
37 It is obiected, The hiſtorie of the adultereſſe in the 8. of Iohn, ver. 6.that Chriſt ſuffered not the adulterous woman to be ſtoned. The eight of Iohn. Wherby they gather, that the Lord would not hauehave this to be doone in the ſtate of the Goſpell; and therefore adulterers are to be ſpared in theſe daies. They ſaie alſo, that Ioſeph being accuſed of this crime, was not put to death. To theſe two examples we muſt anſwer. Firſt, I am not ignorant, that the ſame ſtorie, in the eight chapter of Iohn, hath béen reiected by ſome; bicauſe it rather ſéemed to be put in of others, than to be written by Iohn. Ierom, in his ſecond booke againſt Pelagius, writeth of this matter. The ſame dooth Euſebius Caeſarienſis touch in his third booke, who ſaith; that he did thinke it to be taken out of the goſpell of the Nazarits. Auguſtine, in his ſecond booke De adulterin…s coniugijs ad Pollentium, thinketh; that It was the verie ſtorie of Iohn in déed, but deuiſed by cruell huſbands to be wiped out, to the intent that adulterous wiues might be put to death. Héereby it commeth to paſſe, that in ſome copies it is found and in ſome not. How likelie a thing this is, let other men iudge. What ſo euer it be, whether it be of Iohns writing or no, the matter is not great; for it conteineth nothing againſt the ſentence which I hauehave propoſed: which thing I will ſomewhat more largelie declare.
Ye muſt thinke with your ſelues, that the Phariſies did not bring the adultereſſe vntounto Chriſt, as vntounto a iudge or king; for they neuer acknowledged him to be ſuch a one. Neither did Chriſt euer vſurpe ſuch an office vntounto himſelfe, Iohn. 6. 15.he withdrue himſelfe, when they would hauehave made him a king; neither would he diuide the heritage: Luke. 12, 13and he pronounced his kingdome not to be of this world. Whie then doo they bring hir to him? Iohn. 18, 36Euen to laie a bait for him, and as they ſaie to take him in a trip. He was praiſed among the common ſort for his clemencie, he was loued of the people. Then did theſe Phariſies deuiſe among themſelues; If he ſhall ſaie, that ſhe muſt be put to death, this fauour of the people will fall from him, as being one, that would bring in againe the rigor of the lawe; but if he ſaie, that ſhe muſt be let go, he ſhall doo againſt the lawe of Moſes, yea & of God himſelfe. But Chriſt verie well repelled their wilineſſe. He did neither of both, which they hoped he would doo: yet in the meane time, he did his part verie woorthilie. He was no ciuill magiſtrate, but the miniſter of the church. It was his office to preach the Goſpell and repentance; both which he did. Wherefore he ſaid to the Phariſies; Hee that among you is free from ſinne, let him throwe the firſt ſtone at hir. He ſaid not; Let hir not be put to death: but, Take héed what ye your ſelues doo, and repent.
Iudges muſt not ſpare to puniſh others though themſelues he guiltie of that ſinne.This alſo muſt Iudges be warned of, that in the thing wherein they condemne others, they be not guiltie themſelues. But therefore it is not ſaid; If your ſelues hauehave ſinned, ſpare yée others. For they ſhould ſinne two waies; as well for that themſelues were guiltie of heinous offenſes; as alſo bicauſe they puniſhed not others, which were guiltie in the ſame. This that belonged vntounto himſelfe, Looke part 4, plac. 14, art. 19.he gaue them warning of: and in the ſame ſort he did afterward vntounto the woman; Go thy waies (ſaith he) and ſinne no more. Therefore he diſcharged hir: for he ſaid; Seeing no man hath condemned thee, neither doo I condemne thee. He ſawe hir penitent hart. After what ſort did he acquite hir? Not from the puniſhment of death; for that he left to the Common-weale. But he accuſed hir not. That might not Chriſt doo, not in that reſpect that he was a miniſter of the church; but bicauſe he had not ſéene hir, nor taken hir with the maner, he could not be a witneſſe; neither came he into this world for that purpoſe.
Notwithſtanding, ſome man will ſaie; She neuertheleſſe ſcaped awaie, by reaſon of the words of Chriſt. This was indirectlie [not in reſpect of Chriſts iudgment.] Chriſts dealing was otherwiſe. This was the Scribes fault, who might not abide to heare Chriſts preaching of repentance. They euerie one departed one after another, and left hir there alone. Neither is this a good conſequent; Chriſt, at his firſt comming, condemned not an adultereſſe; Therefore he puniſheth not adulteries. He puniſheth them oftentimes, when the magiſtrates ſword is ſtill: he dooth, and he will doo his office. Neither is it a good reaſon, to ſaie; The church hath not the ſword, it dooth not puniſh adulterie with death; Therefore, neither ought the ciuill magiſtrate to doo it. The church letteth not the ciuill magiſtrate, but that he may doo his office. More ſlender is the argument taken of Ioſeph: Of Ioſeph.for certeinlie he was deliuered to the chéefe iuſtice of capitall crimes. The crime therefore was of death: they which were put in that priſon, were appointed to be put to death; euen as that Baker was. But the iudgement of Ioſephs cauſe was deferred: beſides this, he was not accuſed, that he had committed adulterie; but that he would hauehave doone the ſame. And let theſe things ſuffice for thoſe obiections.
38 Now I conclude, that I ſpeake not this, The concluſion of this place.to the intent I would aboliſh the authoritie of magiſtrates. I knowe that crimes are to be puniſhed, this is appointed by the lawe of God: but the maner of puniſhing is committed vntounto magiſtrates; neither ought thoſe lawes to be of force. I knowe alſo, that thoſe ciuill lawes, giuen by Moſes, doo no more bind vsus than the ceremoniall doo. The ceremoniall lawes are aboliſhed.The ceremonies tooke effect till the comming of Chriſt. The ciuill lawes had their vſe ſo long as the Common-weale did laſt; they were conuenient for that people. But I dare take vponupon me to ſaie, that it were conuenient, that the iuſtice, which is to be ſéene in thoſe lawes, ſhould not be neglected, but ſhould be imbraced of magiſtrates as a profitable thing. As touching the eccleſiaſticall puniſhments, in my iudgement, ſuch regard ought to be had, that adulterers, which be conuicted, and are not penitent, might in ſuch ſort be handled, as at the leaſt-wiſe they ought not to ſcape ſo frée in the church from puniſhment, as they ſhould be partakers of the ſacraments: for the crime is moſt gréeuous; they wound the conſcience of the godlie ſort. And how gréeuous it is, it is ſet foorth vntounto vsus to behold in the fall of Dauid. But what is the cauſe, why Dauid was not condemned? We anſwer, Why Dauid was not condemned.that there was not tribunall ſea…e aboue his owne; he had none aboue him but God, who pardoned him of life: but yet that the ſame ſhould be full of manie croſſes; ſo as he ſéemed rather to be reſerued vntounto miſeries, than to liue in happineſſe.