ADULTERY, an unlawful commerce between one married person and another, or between a married and unmarried person.
Punishments have been annexed to adultery in most ages and nations, though of different degrees of severity. In many it has been capital; in others venial, and attended only with slight pecuniary mulcts. Some of the penalties are serious, and even cruel; others of a joose and humorous kind. Even contrary things have been enacted as punishments for adultery. By some laws the criminals are forbidden marrying together in case they become single; by others they are forbidden to marry any besides each other; by some they are incapacitated from ever committing the like crime again; by others they are glutted with it till it becomes nauseous.
Among the rich Greeks, adulterers were allowed to redeem themselves by a pecuniary fine; the woman's father, in such cases, returned the dower he had received from her husband, which some think was refunded by the adulterer. Another punishment was putting out the eyes of adulterers.
The Athenians had an extraordinary way of punishing adulterers, called αποριφάνδωσις και παραδύμος, practised at least on the poorer sort who were not able to pay the fines. This was an awkward sort of empanelment, performed by thrusting one of the largest radishes up the anus of the adulterer, or, in defect thereof, a fish with a large head, called mugil, mullet. One Alcæus is said to have died in this way, though it is doubted whether the punishment was reputed mortal. Juvenal and Catullus speak of this custom as received also among the Romans, though not authorized by an express law, as it was among the Greeks.
There are various conjectures concerning the ancient punishment of adultery among the Romans. Some will have it to have been made capital by a law of Romulus, and again by the twelve tables; others, that it was first made capital by Augustus; and others, not before the time of Constantine. The truth is, the punishment of it in early days was very various, much being left to the discretion of the husband and parents of the adulterous wife, who exercised it differently, rather with the acquiescence and countenance of the magistrate, than by any formal authority from him. Thus, we are told the wife's father was allowed to kill both parties, when caught in the fact, provided he did it immediately, killed both together, and as it were with one blow. The same power ordinarily was not indulged the husband, except the crime were committed with some mean or infamous person; though, in other cases, if his rage carried him to put them to death, he was not punished as a murderer. On many occasions, however, revenge was not carried so far; but mutilating, castrating, cutting off the ears, noses, &c. served the turn. The punishment allotted by the lex Julia was not, as many have imagined, death, but rather banishment or deportation, being interdicted fire and water, though Octavius appears in several instances to have gone beyond his own law, and to have put adulterers to death. Under Macrinus, many were burnt at a stake. Constantine first by law made the crime capital. Under Constantius and Constans, adulterers were burnt, or sewed in sacks and thrown into the sea. Under Leo and Marcian, the penalty was abated to perpetual banishment, or cutting off the nose. Under Justinian, a further mitigation was granted, at least in favour of the wife, who was only to be scourged, lose her dower, and be shut up in a monastery. After two years, the husband was at liberty to take her back again: or, if he refused, she was shaven, and made a nun for life. In the case
Adultery. of the husband the crime continued capital. The reason alleged for this difference was, that the woman is the weaker vessel. Matthæus declaims against the Empress Theodora, who is supposed to have been the cause of this law, as well as of others in favour of that sex by the emperor.
Under Theodosius, women convicted of this crime were punished after a very singular manner; being locked up in a narrow cell, and forced to admit to their embraces all the men that would offer themselves. This custom was abolished by the same prince.
By the Jewish law, adultery was punished with death in both parties, where they were both married, or only the woman. The Jews had a particular trial or ordeal for a woman suspected of the crime, by making her drink the bitter waters of jealousy; which were supposed, in the case of guilt, to cause the body to swell.
Amongst the Mingrelians, according to Chardin, adultery is punished with the forfeiture of a hog, which is usually eaten in good friendship between the paramour, the adulteress, and the husband. In some parts of the East, it is said any man's wife is permitted to prostitute herself to him who will give an elephant for the use of her; and it is reputed no small glory to her to have been rated so high. Adultery is said to be so frequent in Ceylon, that there is not a woman who does not practise it, notwithstanding its being punishable with death. Among the Japanese, and divers other nations, adultery is only penal in the woman. In the Marian islands, the woman is not punishable for adultery; but if the man go astray he pays severely; the wife and her relations waste his lands, turn him out of his house, &c.
In Spain they punished adultery in men by cutting off the instrument of the crime. In Poland, before Christianity was established, they punished adultery and fornication in a peculiar manner: they carried the criminal to the marketplace, and there fastened him by the offending part with a nail, laying a razor within his reach, and leaving him under a necessity either of doing justice upon himself, or of perishing in that condition.
In England adultery by the ancient laws was severely punished. King Edmund the Saxon ordered it to be punished in the same manner as homicide; and Canute the Dane ordered that a man who committed adultery should be banished, and that the woman should have her nose and ears cut off. In the time of Henry I. it was punished with the loss of eyes and genitals.
In Britain adultery is now reckoned a spiritual offence, that is, cognizable by the spiritual courts, where it is punished by fine and penance. The common law takes no farther notice of it than to allow the party aggrieved an action and damages. This practice is often censured by foreigners, as making too light of a crime, the bad consequences of which, public as well as private, are so great. It has been answered, that perhaps this penalty, by civil action, joined with the ignominy attached to it, is more calculated to prevent the frequency of the offence, which ought to be the end of all laws, than a severer punishment.