[84] Wilda, Strafrecht, 821 ff. Cf. Walter, Deutsche Rechtsgeschichte, II, 398 ff.; Glasson, Hist. du droit, I, 120.
[85] Geffcken, op. cit., 33. The following provision of the old English law illustrates this principle in all its harsh reality: "If a freeman lie with a freeman's wife, let him pay for it with his wer-geld, and provide another wife with his own money, and bring her to the other." Here doubtless the guilty woman had been slain: Laws of Æthelberht, 31: Haddan and Stubbs, Councils, III, 45. For the same offense with an "esne's" wife, sec. 85 of the same laws requires a man to "make two-fold bot": ibid., III, 50. Cf. also secs. 10, 11: ibid., III, 43; Cleveland, Woman under the English Law, 9, 51 ff. (adultery and divorce).
[86] Geffcken, op. cit., 33. Cf. in general Tacitus, Germania, c. 19; Grimm, Rechtsalt., 454; Freisen, Geschichte des can. Eherechts, 779; Weinhold, Deutsche Frauen, II, 25-27, who shows that the guilty woman's paramour might lawfully be slain by the husband when seized in the act.
For discussion of the customs of the early Germans regarding the punishment of adultery and summaries of the provisions of the folk-laws, the capitularies, and later legislation on the subject see Rosenthal, Rechtsfolgen des Ehebruchs, 40 ff.; and Bennecke, Die strafrechtliche Lehre vom Ehebruch, 82 ff. Of some service is Heller, Ueber die Strafe des Ehebruchs, 17 ff., passim.
[87] On the Lex romana Burgundionum, the Lex romana Visigothorum, and the Lex romana curiensis, see Freisen, op. cit., 776-78. Cf. also Geffcken, op. cit., 42, 43. The folk-laws are clearly reviewed by Meyrick in Dict. Christ. Ant., II, 1111.
[88] Boehmer, Ehegesetze im Zeitalter Karls des Grossen, 89 ff., summarizes the provisions of the folk-laws and capitularies regarding divorce, enumerating twelve different causes of separation, some of them being properly grounds of nullity.
[89] See Geffcken's interesting discussion of tit. 34, c. 4, Lex Burgundionum, in Ehescheidung, 35-38. He shows, following Loening, Geschichte des deut. Kirchenrechts, II, 619, note, that the clause in question is of later origin than the rest of tit. 34, probably under Christian influence. Cf. Glasson, Le mariage civil et le divorce, 187, 188. For the text see Salis's edition of the Burgundian laws in Mon. Germ. hist.: Legum, sec. i, tom. ii, p. 68; and compare sec. xxiv, "De mulieribus Burgundiis ad secundas aut tertias nuptias transeuntibus," ibid., pp. 61-63; and sec. lxviii, "De adulteriis," ibid., p. 95.
[90] The Lex Bajuwariorum, near the end of the eighth century, likewise admits divorce only for the one cause: Geffcken, op. cit., 46.
[91] Lex Visig., lib. iii, tit. iv, c. 3; tit. v, c. 5; tit. vi, c. 2. For sodomy or for forcing her to adultery, the wife may put away the husband and marry again. Cf. Geffcken, op. cit., 38-40; Glasson, op. cit., 187. There is a similar provision in the Longobard code: Geffcken, op. cit., 41. As a general rule, the woman is not allowed one-sided divorce; indeed, for attempting such a separation, the Lex Burgund., tit. xxxiv, c. 1, prescribes the death penalty: cf. Freisen, op. cit., 780, who holds that the woman cannot by German law have the right of one-sided divorce, because she cannot dissolve the mund which belongs solely to the man; and he contends against Sohm, Schroeder, and Loening that when the woman, as in exceptional cases cited, has the right of separating, it is not she who dissolves the marriage, but the law indirectly by depriving the man of the mund.
[92] So by the Burgundian, West Gothic, and Longobard laws: Geffcken, op. cit., 35, 39, 41.