The Old Yellow Book: Source of Robert Browning's The Ring and the Book. Various
who are frequently innocent. Hence the "discovery in the very act of crime," which is required by law, is not to be interpreted, nor to be understood, as discovery in the very act of licence, but is to be referred to the proof of the adultery, lest on trifling suspicion a wife should be given over to death. But when the adultery is not at all doubtful, there is no distinction between one killing immediately and killing after an interval, so far as the matter of escaping extreme punishment is concerned. [Citations.]
For whenever a wife is convicted of adultery, or is a manifest adulteress, she is always said to be "taken in crime." [Citations.]
And in very truth the reasons adduced by those holding the contrary opinion are entirely too weak. For murder committed for honour's sake is always said to be done immediately, whensoever it may be committed. Because injury to the honour always remains fixed before one's eyes, and by goading one with busy and incessant stings it urges and impels him to its reparation. [Citations.]
Such relaxation of the reins to husbands, for taking into their own hands the law, would indeed be too great if the law of divorce were still valid. For in that case husbands would not be permitted to make such reparation of their honour. For another way would be satisfactorily provided for them, namely, in their right to dismiss and repudiate the polluted wife. In this way they could put far from themselves the cause of their disgrace, yes, and the very ignominy itself. But when by the divine favour our Gentile blindness was removed, and matrimony was acknowledged to be perpetual and indissoluble, those were indeed most worthy of pity who, when all other way of recovering their honour was closed to them, washed away their stains in the blood of their adulterous wives. Petrus Erodus [Citation], after he has discussed a matter of this kind according to the usual practice of Roman Law, adds in the end: "For as all hope of a second marriage is gone so long as the adulteress still lives, we judge that such very just anger is allayed with more difficulty, unless it be by the flight of time;" and therefore such a case, when not terminated by divorce, is usually terminated by murder. For as Augustine says, "what is not permitted, becomes as if it were permitted; that is, let the adulteress be killed, that the husband may be released."
I acknowledge that it is laudable to restrain the audacity of husbands, lest they declare the law for themselves in their own cause; since they may be mistaken. But it would be more laudable indeed to restrain the lust of wives; for if they would act modestly and would live honourably they would not force their husbands to this kind of crime, which I may almost call necessary. Nor can we deny that by the ignominy brought upon them by the adultery they are exasperated and are driven insane, and a most just sense of anger is excited in their hearts. For this grievance surpasses all others beyond comparison, and hence is worthy of the greater pity, according to the words of the satirist [Juv. X. 314]: "This wrath exacts more than any law concedes to wrath."
Papinianus also well acknowledges this [Citation], where we read: "Since it is very difficult to restrain just anger." For these reasons, authorities hold that a just grievance should render the penalty more lenient even in premediated crimes; because the sense of "just grievance does not easily quiet down, or lose its strength with the flight of time, but the heart is continually pierced by infamy, and the longer the insult endures, the longer endures the infamy, yea, and it is increased." [Citations.]
And this drives one on the more intensely, because with greater impunity, as I may say, wives pollute their own matrimony and destroy the honour of their entire household. In ancient times, while the Lex Julia was in force, wives who polluted their marriage-bed underwent the death penalty. [Citations.]
Likewise it was so ordained in the Holy Scriptures; for adulterous wives were stoned to death, Gen. 38; Lev. 20, 10; Deut. 23, 22; Ez. 16.
The solace drawn from the public vengeance quieted the anger and destroyed the infamy. Then the husband, who was restored to his original freedom, could take a new and honest wife and raise his sons in honour. But now, in our evil days, there is a deplorable frequency of crime everywhere, as the rigour of the Sacred Law has become obsolete. And since wives who live basely are dealt with very mildly, the husband's condition would indeed be most unfortunate if either he must live perpetually in infamy, or must expiate her destruction, when she is slain, by the death penalty, as Matthæus well considers. [Citation.]
Therefore, when it is claimed that the husband shall escape entirely unpunished, it is necessary that the wife be killed in the very act of discovered sin. But when the question is as to whether or not a husband may be punished more mildly than usual when driven to wife-murder for honour's sake, it makes no difference whether he kill her immediately or after an interval. [Citation.]
Nor does this opinion lack foundation in the very Civil Law of the Romans, for Martian [Citation] asserts that a father who had killed his son while out hunting, because he had polluted his stepmother with adultery, was exiled. Nor had the father found him in the very act of crime, but slew him while out hunting, that is with a pretence of friendliness and by dissimulating his injury. Accordingly he was punished, but not with the usual penalty; for he had killed his son, not in his right as a father, but in the manner of a robber. Hence we can infer that not the killing, but the method of killing was punishable, as we may deduce from Bartolo. [Citations.]
Still further, it is well worthy of consideration that one may kill an adversary with impunity, for the sake of his personal safety, but he must do so immediately and in the very act of aggression, and not after an interval. For the life of one slain may not be recovered by the slaying of the murderer. Accordingly, whatever violence may follow upon the first murder becomes vengeance, which is hateful and odious to the law; for the jurisdiction of the judge is insulted by depriving him of the power of publicly avenging murder. But if by the death of the slayer the one slain could be called back to life, I think there is no doubt that any one could kill the said slayer; for then such an act would not be revenge, but due defence, leading toward the recovery of the life that had been lost. But even when we are dealing with an offence and injury which does not affect the person of the one injured, it is likewise permitted that one who has been robbed may, even after an interval, kill the thief for the recovery of the stolen goods, provided every other way to recover them is precluded. Likewise, one offended in his reputation should be permitted at all times to kill the one injuring him; for such an act may be termed, not the avenging of an injury, but the re-establishing of wounded honour, which could be healed in no other way. [Citations.]
Furthermore, as I have said, when one is discussing the subject of self-defence, he is dealing with an instantaneous act; hence the anger conceived therefrom ought to quiet down after a while, according to the warning of St. Paul, Eph. 4: "Let not the sun go down upon your wrath." But when we are dealing with an offence that injures the honour, this is not merely a momentary matter, but is protracted, and indeed with the lapse of time becomes the greater, as the injured one is vilified the more. Therefore, whensoever the murder follows it is always said to have been committed immediately. [Citation.]
Relying upon these and other reasons, most authorities affirm that a husband killing his adulterous wife after an interval, but not found in licentiousness, is to be punished indeed, but more mildly and with a penalty out of the ordinary. [Citations.]
Caball testifies that this has been the practice in many of the world's tribunals. Calvinus gives other cases so decided. [Citation.] And Cyriacus, who speaks in worse circumstances, adduces numerous other cases, and the authorities recently cited offer many more.
This lenient opinion is the more readily to be accepted because, as I claim, the deed about which we are arguing does not also carry with it (as the Fisc holds) attendant circumstances demanding such a rigorous penalty.
[First] the taking of helpers to be present at the murders [is not such a circumstance]; because he could lawfully use the help of companions to provide more safely for his own honour by the death of his wife. [Citations.]
[Secondly] the crime is not raised to a higher class because he led with him helpers at a price agreed upon; for what is more, and is far more to be wondered at, a husband can lawfully demand of others the murder of an adulterous wife, even by means of money, as the following indisputably affirm. [Citations.]
Likewise it does not at all disturb [our line of argument] that Count Guido might have killed his wife and the adulterer