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We must pass now to the consideration of the subject in reference to the British Isles. It is not very useful, but it may be interesting, and is necessary to render this part of our subject complete, to inquire what our native savages thought of these matters.
The Anglo-Saxons afford some glimmering of legislation concerning them. They are said, in their own country, to have burnt the adulteress, and over her ashes erected a gibbet whereon the adulterer was hanged. And a kindred severity was imported by them into Ancient Britain.*
The laws of Withred, King of Kent, and which were made at the Council held at Berghamstead by Bertwald, Archbishop of
The following passage is very painful. It appears in an epistle to Ethelbald, King of Mercia, from Boniface, Archbishop of Mentz, in the year 745, when he was the Pope's Legate in Germany. In Antiquâ Saxoniâ (i. e. Germania) ubi nulla est Christi cognitio, si mulier maritata pacto fœdere matrimonii Adulterium perpetravit aliquo, cogunt eam propriâ manu per laqueum suspensam vitam finire, et super bustum illius incensæ et concrematæ corruptorem ejus suspendent: aliquo congregato fœmineo exercitu, flagellatam eam mulieres per pagos circumquâque ducunt, virgis cadentes et pungentes punctis vulneribus cruentatam et laceratam de villâ ad villam mittunt; et occurrunt semper novæ flagellatrices zelo pudicitiâ adductæ usquequo eam aut mortuam aut vix vivam derelinquunt."
Canterbury, the Bishop of Hereford, and others, in 697, inflicted various pecuniary mulcts, besides excommunication, on such as should be found guilty of this crime. These mulcts were levied according to the condition in life of the offenders. If the offender was
a military man, (gesith-cund-man,) it was enacted, that he should pay to his lord, a fine of one hundred shillings; a countryman or villager, (ceorles-man, or paganus,) fifty shillings; "besides that he shall do penance for his sin." If the adulterer were an alien, he was to depart the country, and take his sins and estate away with him; if a priest, he was to be inhibited from administering the sacrament of baptism. These excommunications indicate the commencement of that cognizance, which was afterwards taken of this crime, as an ecclesiastical offence, and thus early we discover the interposition of the church.
By the laws of Ethelbert, the adulterer paid a fine to the husband, and bought another wife for him. This shows, though somewhat equivocally, the value at that time set upon the female sex.
King Edgar enacted, that an adulterer, of either sex, should, for the space of seven years, live three days in every week upon bread and water; but the mode in which
the execution of this punishment was to be compelled, we do not learn.
King Edmund, (A. D. 944.) whose laws respecting marriage were as wholesome in some respects, as they were curious in others, ordered Adultery to be punished in the same manner as homicide.* ("Legibus Edmundi regis apud Brompton Adulterium sicut homicidium punitur.") And both the murderer and the adulterer were denied christian burial.
Alfred's laws increased the fine which had been settled by Withred, though it was still to be a kind of ad valorem mulct, according to the rank and quality, estate and circumstances, of the person injured by the crime, and those of the offender. This fine, sometimes one-tenth of the offender's property, sometimes more, was known by the expressive name of Lairwite, or Lecherwite, and Legergeldum, from two Saxon words, signifying concumbere, and mulcta; a privilege, which is said to have anciently belonged to the lords of some manors, over their villeins or tenants. The law itself was called a Talioes law. It is somewhat strange, that Alfred should not have visited this offence with personal severity,
Reg. Edm. lege sua, cap. 4. "Affici jussit instar homicidii."
especially when we find, that he added several laws, which bore heavily upon offences, even threatened, though not committed, against chastity, and "any kinde of wantonnesse."
King Canute, (or Knute,) the Dane, A. D. 1032, ordered the man to be banished, and the woman to have her nose and ears cut off.* By a subsequent regulation, perhaps, on the discovery that this would not answer the purpose, he decreed, that such as broke their conjugal vows should be condemned to perpetual celibacy. There is this, also, worthy of notice in his enactment, that, besides the indelible blot that would attach to the individuals, the estate, both real and personal, of the offending wife, became confiscated to the injured husband, and in the case of the man, he continued the punishment capitis æstimatione noticed in Alfred's time.
William the Conqueror made a law, that whosoever forced a woman, should suffer demembration, and lose the offending part; but this emasculation appears to have applied to all cases of violation generally, rather than to have been limited to that of Adultery.
"Hominem Adulterium in exilium relegari jussit, fœminam nasum et aures prœcidi.”
Certainly there was something more appropriate than seemly in these mutilations. Bracton says, it was reasonable that the offender should suffer," in eo membro quo deliquet."
From the Domesday Book, however, it would seem, that the practice of mulcting the offender still continued ;* for the levying of these fines is frequently mentioned, and the sums poured into the public treasury in this manner, appear to have been considerable; but it was an impure produce; and shortly afterwards, the distinction which has ever since existed (at least, with but slight interruption) between the temporal and the spiritual courts, occasioned the transfer of the cognizance of this offence, to the latter jurisdiction ; the punishment was, thereupon, changed to corporal penance. This was in
* Bacon, in his Treatise on Government, p. 88, states, "that by the law of William, a man who committed Adultery with a married woman, should forfeit to his lord, the price of his life." Ll. Gulielm. cap. 14. 19. 371.
This expression seems somewhat equivocal, and appears to imply, that Adultery was capital. But Bacon has evidently not understood it in this manner, by classing this punishment among the fines of this reign.