who were convicted of adultery to be sown together in a sack, and burned alive; and that Aurelian published many severe laws against adultery, and put to death one of his own domestics for the offence. Under the Christian emperors adultery was made a capital crime, and assimilated to sorcery and parricide, to poison and assassination, to high treason and debasement of the coin. This was the law of Constantine: under Constans and Constantius adulterers were burned, or sown in sacks and cast into the sea: under Leo and Marcian the penalty was reduced to perpetual banishment and cutting off the nose. Under Justinian it was again permitted to kill the parties, if their intercourse had been forbidden, and was renewed in certain places: but at the same time, under the influence probably of Theodosia, the law was mitigated, at least in favour of the wife, who was only to be scourged, to lose her dower, and to be confined in a nunnery for two years, at the expiration of which her husband might receive her, but if he refused, she was to take the veil for life. It still remained a capital offence in ~the husband. There is also the record, of which some of the circumstances are disputed, of a penal and public constupration of the adulteress, which was very properly abolished by Theodosius. In some cases the adulteress was banished, and her goods confiscated: and while it was the received opinion of the Jurists, that to kill the parties was a lawful act, as far as the courts of law were concerned,

Ayliffe's Parergon.

it was held to be unlawful in the conscience, and even a deadly sin".

The writers of the New Testament make no mention of the punishment of adultery, but in the denunciation of its infinite and eternal doom. The primitive writers pursue the same course. Clemens of Alexandria is the first of the fathers who takes notice of the punishment of adultery, comparing the capital judgments under the Mosaic law with the spiritual death incurred by the adulteress who does not repenti. Origen takes up the same argument, and dwells on the lenity of the ancient law in inflicting the capital punishment as a perfect satisfaction for the sin, and the virtue of the Gospel in restraining crime by proposing the final vengeance reserved for the offender who sins without repentance. He argues in another place that the law, with its threats of corporal chastisement, was adapted to a state of infancy, but that the Gospel, which is addressed to men of perfect age, denounces heavier judgments. Under the law the adulterer and the adulteress were not threatened with hell, or with eternal fire, but were to be stoned with stones. But the adulterer may now say, Oh! that the sentence of the former law had been pronounced concerning me, that I might be stoned with stones, and not reserved to the eternal fire'. In proof that things are evil, not in themselves, but in their modification and use, he instances the murder of the adulterer, and affirms,

↳ Ux. Ebr. 1. iii. c. 12. Anc. Univ. Hist. vol. xiv. p. 132. vol. xv. p. 344, 461. Enc. Brit. Art. Adultery. 'Strom. 1. ii. ad

fin.

* In Lev. Hom. xi. s. 2.

1 In Jer. Hom. xviii. ad fin.

that if any man slays the adulterer detected in the crime, and demands the punishment of the offence, he does not evil". Writers of a later period advert to the capital punishment of the offence in the secular courts, where men who through the frailty of their nature are prone to passion and the allurements of pleasure, nevertheless punish adultery by law, and inflict capital punishment on such as they convict of invading the rights of the genial bed". This recognition of the capital penalty may be added to the other proofs of the late age of the several writings falsely attributed to Clemens of Rome. The Apostolical Constitutions speak in express terms of the conviction and capital punishment of the adulterer; of the expulsion of the woman from the house before her condemnation P; and of the secession and rejection of adulterers from the communion of the Church. In the Apostolical Canons the imputation of adultery is justly made the ground of exclusion from the sacred order". The truth is, that in the primitive times "the punishment of adultery was very great; perpetual penance all a man's life, and scarce being admitted into communion at the very hour of death: till Pope Zephyrinus, about the year 216, considering the great inconveniencies of so much severity, persons being hereby often driven into despair, and others discouraged from coming over to the Christian faith, ordered that penance in this case should be limited to a shorter time, which

being ended, such persons might be received again into the bosom of the Church. This decree gave great offence to the African Churches, most whereof stood up for the strictness of the ancient discipline. Tertullian more especially inveighs against it with much bitterness and animosity, as a thing unfit in itself, and an innovation in the Church. The same Cyprian also plainly intimates, though he himself was for the more mild opinion. By the Ancyran council, held A. D. 315, it was decreed, that whoever was guilty of adultery should be punished with a seven years' penance before they were admitted to the communion. By the synod of Illiberis, if a man, after having done his penance for the first fault, fell afterwards into the same sin again, he was not to be taken into communion, no, not at the hour of death. Saint Basil, writing to Amphilochius rules for the conduct of discipline, and measures of repentance, sets adultery at fifteen years' penance, and then to be admitted to the holy sacrament. His brother Gregory, Bishop of Nyssa, treating about the same affairs, appoints fornication to be punished with no less than nine years' penance, and suspension from the sacrament; and adultery, and all other species of uncleanness, with double that time, though allowing a liberty to the spiritual guide to contract this time, as the circumstances of the case or person might require. But both these last mentioned being but private bishops, their canons could be no further obligatory than to those particular dioceses that were under their charge. And indeed their censures of the Church in this case did much vary according to time and place, in some

more rigid and severe, in others more lax and favourable, though in all such as did abundantly shew what hearty enemies they were to all filthiness and impurity whatsoever." In the progress of ecclesiastical discipline, a penance of seven years was im posed upon a layman, and of ten years upon a clergyman, who should be convicted of adultery; which, however, admitted of a pecuniary compensation: the woman was also excluded from a second marriage, that she might perform a penance coextensive with her life'.

The discipline of the Church was, however, necessarily feeble, without the aid of the secular power, and the favour of the emperors towards the bishops by whom they had been converted, soon admitted them to a share of the temporal jurisdiction. The administration of the law concerning marriages and bequests, which had formerly belonged to the pontifices, was transferred to the Christian bishops, to whom it was thought that the law of marriage, which was in itself a religious rite, and to which from the apostolic age the consent of the bishop had been required, was especially appropriate; and the bishops maintained their title to this judicial authority, by their learning, their knowledge of the laws, and by the part which they took in the compilation both of the civil and canonical code. Thus adultery fell under the episcopal jurisdiction; and it cannot be denied that there is a reasonable analogy between a divine institution and ecclesiastical cognizance of its

Cave's Prim. Christianity, pt. 2. c. 5. 'Ayliffe's Parergon, p. 47, 48.