Special Political Discourses on Domestic Society and the Rights of Citizens

On the Three Domestic Societies

...who combined conjugal fellowship original Latin: κοινωνίαν (koinonian), meaning a shared community or communion with sacred and secular goods alike. (Henning Arnisaeus disputes this right in On Marriage, last chapter, last section.) Consequently, they decreed that the surviving spouse should succeed the deceased who died intestate Dying without a will, provided there were no children; or if children did exist, they should inherit in equal shares original Latin: "in Viriles partes," literally "manly portions," a legal term for equal per capita distribution. See Valentin Forster, Roman History, folio 32, and the same author, Treatise on Jurisdiction, folio 70. Not long ago, this was approved by the customs of almost all parts of Germany. See Joachim Stephan, On Jurisdiction, book 3, chapter 2, number 21, etc.; Guillaume Forner, 1st Selections, chapters 11 and 19. (Among us, this is commonly called the old law of marital inheritance original German: "das Alte verfangenschafft Recht," referring to ancient Germanic property rights between spouses. See Lehmann, who derives these from Alemanic laws, book 2, folio 94.) And it still flourishes in several places in Germany. See Herbaius, Daily Matters, folio 99, etc.; Arithmaeus, Trial 1, disputation 6, thesis 10. In France, there is a community of goods between spouses, both movable and acquired property. See Pasquier, 4th Researches, chapter 18, near the end. See also Tommaso Campanella on marriage, Politics, book 3, section 13 and following.

VIII. Not only must marriage be between two people only, but that society ought to be perpetual. Accordingly, the stability of matrimonial society is hindered not only by polygamy, but also by the promiscuous use of divorce, which was once customary among the Romans and the Jews. See Forster, On Roman Jurisdiction, folio 96 and following; Arnisaeus, On Marriage, chapter 6, section 2; and Malachi, chapter 2, verse 16. (Regarding Justinian law, see Rittershusius, On the Novels, part 4, chapters 7 and 8.) However, for cases of adultery, or those things that can be equated to adultery or vices that tear apart the very substance of marriage, our people do not forbid repeating the divorce formula for bad behavior, which is taken from Petronius: "Because you have violated faith by your crime and destroyed our shared friendship, take your things quickly and seek another place to pollute." Indeed, against the Roman Catholics, Arnisaeus approves of total separation Referring to "divortium a vinculo matrimoniali," or the full dissolution of the marriage bond, as opposed to mere separation of living quarters in On Marriage, chapter 5, section 7, and chapter 6, section 10. This is permitted not only in cases of adultery, but also in the case of malicious desertion. See Arnisaeus, chapter 6, sections 4, 6, and following; Rittershusius, On the Novels, part 4, chapter 9; though Saint Augustine denies these things in Treatise on Adulterous Marriages, volume 6. Furthermore, whether and when a wife is bound to follow a wandering husband? See Heigius, part 2, question 14.

IX. Whether a capital penalty The death penalty was prescribed for adultery by the Julian Law? This is a historical question. I deny this along with Forster, On Roman Jurisdiction, folio 123; Heigius, part 2, question 29, number 47, etc.; Timaeus Faber, Disputations on the Institutes, section 4, regarding public judgments; see Lipsius, On the Annals of Tacitus, book 4, number 98; Lyclama, 2nd Parchments, selections 9 and 10, and on the section concerning the Julian Law on Adultery in the Institutes. Marcilius and Hortensius also address this in law 29, section 1, on the Julian Law regarding adultery. Formerly, an adulteress was sent to a brothel; a practice which the Emperor...