VARIAE, BOOK 1, LETTER 37
From: King Theoderic, writing through Cassiodorus
To: Crispianus
Date: ~507-511 AD
Context: A fascinating case of justifiable homicide: a husband caught an adulterer and killed him. Theoderic pardons him from exile, arguing -- with vivid animal comparisons -- that defending the marriage bed is a natural right even animals exercise.
[1] Although the crime of homicide is abhorrent at first hearing, and the eyes of judges recoil from a bloodied hand -- because the path to mercy always lies open more readily to good minds -- nevertheless, justice requires us to weigh the circumstances under which a crime becomes necessary. What new misfortune of fate befalls the man who becomes an object of universal loathing if he keeps his hands clean? For who would tolerate dragging a man before the law when the other party tried to violate the rights of marriage? [2] It is instinct for wild beasts to defend their mates with desperate combat, since all living creatures regard as hostile what natural law condemns. We see bulls defending their females in fierce contests of horn; rams fighting to the death for their ewes; stallions avenging their mated females with blows and bites. Thus creatures that feel no shame will lay down their lives for their partners. [3] How, then, could a human being tolerate leaving adultery unpunished, knowing that to do so would be his everlasting disgrace? Therefore, if the facts of your petition are not false, and you washed the stain from your marriage bed with the blood of the adulterer caught in the act, and you are not using the pretext of a bloodied mind to mask some other motive, we order you released from the exile that was imposed upon you -- since for a husband to draw a sword in defense of chastity is not to break the law but to make it. [4] However, if a legitimate accuser comes forward, know that you will be heard regarding the nature of your act, so that if you killed the innocent, the crime shall be punished with public severity; but if you divided with death those who had wrongly come together, it shall be judged vengeance rather than guilt. [5] Furthermore, if any of your accusers has caused you losses, and money was, as you claim, extorted from your guarantor Agnellus by the vicar or his staff, then that person, summoned by our order, shall restore what was taken according to law. We do not wish those whom our sentence has freed to fall prey to anyone's plunder. Likewise, against the attacks of lawless men, we grant you protection under equitable defense.
XXXVII. CRISPIANO THEODERICUS REX.
[1] Quamvis homicidii facinus primus detestetur auditus et cruentam manum oculi refugiant iudicantum, quia proclivior ad misericordiam via bonis semper mentibus patet, tamen iustitiae consideratione librandum est, qua cuique fiat iniuria necessarium scelus: qui nova infelicitate fortunae tunc erit detestatio cunctorum, si se servet innoxium. quis enim ferat hominem ad leges trahere, qui matrimonii nisus est iura violare? [2] Feris insitum est copulam suam extrema concertatione defendere, dum omnibus est animantibus inimicum, quod naturali lege damnatur. videmus tauros feminas suas cornuali concertatione defendere, arietes pro suis ovibus capitaliter insaevire, equos adiunctas sibi feminas colaphis ac morsibus vindicare. ita pro copulatis is sibi animas ponunt qui verecundia non moventur. [3] Homo autem quemadmodum patiatur adulterium inultum relinquere, quod ad aeternum suum dedecus cognoscitur omisisse? et ideo si oblatae petitionis minime veritate fraudaris et genialis tori maculam deprehensi adulteri sanguine diluisti nec sub praetexta cruentae mentis causam pudoris intendis, ab exilio, quod tibi constat inflictum, te praecipimus alienum, quoniam pro amore pudicitiae porrigere ferrum maritis non est leges calcare, sed condere. [4] Ita tamen, ut, si legitimus extiterit accusator, de facti tui qualitate te noveris audiendum, ut, si innoxios peremisti, crimen publica districtione resecetur, si male initos complexus adulterorum morte divisisti, aestimetur potius vindicta quam culpa. [5] Si quis tibi autem calumniantium damna generavit et Agnello fideiussori tuo, ut asseris, a vicario vel eius officio extortam constiterit fuisse pecuniam, nostra iussione conventus secundum leges ablata restituat. nolumus enim in cuiusquam praedam cadere, quos nostra visa est sententia liberare. pari modo contra incivilium impetus Candacis tibi tuitionem sub aequabili defensione praestamus, ut nec legibus te subtrahat nec iterum contra iura publica laborare permittat.
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VARIAE, BOOK 1, LETTER 37
From: King Theoderic, writing through Cassiodorus To: Crispianus Date: ~507-511 AD Context: A fascinating case of justifiable homicide: a husband caught an adulterer and killed him. Theoderic pardons him from exile, arguing -- with vivid animal comparisons -- that defending the marriage bed is a natural right even animals exercise.
[1] Although the crime of homicide is abhorrent at first hearing, and the eyes of judges recoil from a bloodied hand -- because the path to mercy always lies open more readily to good minds -- nevertheless, justice requires us to weigh the circumstances under which a crime becomes necessary. What new misfortune of fate befalls the man who becomes an object of universal loathing if he keeps his hands clean? For who would tolerate dragging a man before the law when the other party tried to violate the rights of marriage? [2] It is instinct for wild beasts to defend their mates with desperate combat, since all living creatures regard as hostile what natural law condemns. We see bulls defending their females in fierce contests of horn; rams fighting to the death for their ewes; stallions avenging their mated females with blows and bites. Thus creatures that feel no shame will lay down their lives for their partners. [3] How, then, could a human being tolerate leaving adultery unpunished, knowing that to do so would be his everlasting disgrace? Therefore, if the facts of your petition are not false, and you washed the stain from your marriage bed with the blood of the adulterer caught in the act, and you are not using the pretext of a bloodied mind to mask some other motive, we order you released from the exile that was imposed upon you -- since for a husband to draw a sword in defense of chastity is not to break the law but to make it. [4] However, if a legitimate accuser comes forward, know that you will be heard regarding the nature of your act, so that if you killed the innocent, the crime shall be punished with public severity; but if you divided with death those who had wrongly come together, it shall be judged vengeance rather than guilt. [5] Furthermore, if any of your accusers has caused you losses, and money was, as you claim, extorted from your guarantor Agnellus by the vicar or his staff, then that person, summoned by our order, shall restore what was taken according to law. We do not wish those whom our sentence has freed to fall prey to anyone's plunder. Likewise, against the attacks of lawless men, we grant you protection under equitable defense.
Modern English rendering for readability. See the 19th-century translation or original Latin/Greek for scholarly use.