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 jocose 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 became 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 downright 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 among those people, was putting out the eyes of adulterers.
The Athenians had an extraordinary way of punishing adulterers, called *μελίσσας καιφοδεική*, practised at least on the poorer sort who were not able to pay the fines. This was an awkward form of empalement, 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." Alceus is said to have died 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 emperor Constantine. The truth is, the punishment in the 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 silence and countenance of the magistrate than 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 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 the 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 farther 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; if he refused, she was thrown, and made a nun for life: But it still remained death in the husband. The reason alleged for this difference is, that the woman is the weaker vessel. Matthew declaims against the empress Theodora, who is supposed to have been the cause of this law, as well as of others procured in favour of that sex from the emperor.
Under Theodosius, women convicted of this crime were punished after a very singular manner, viz. by a public confutation; being locked up in a narrow cell, and forced to admit to their embraces all the men that would offer themselves. To this end, the gallants were to dress themselves on purpose, having several little bells fastened to their clothes, the tinkling of which gave notice to those without of every motion. This custom was again abolished by the same prince.
By the Jewish law, adultery was punished by death in both parties, where they were both married, or only the woman. The Jews had a particular method of trying, or rather purging, an adulteress, or a woman suspected of the crime, by making her drink the bitter waters of jealousy; which, if she were guilty, made her 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 gallant, the adulteress, and the cuckold. In some parts of the Indies, 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 frequent in Ceylon, that not a woman but practises it, notwithstanding its being punishable with death. Among the Japanese, and divers other nations, adultery is only penal in the woman. Among the Abyssinians, the crime of the husband is said to be only punished on the innocent wife. In the Marian islands, on the contrary, the woman is not punishable for adultery; but if the man go astray he pays feversly: the wife and her relations waste his lands, turn him out of his house, &c. Among the Chinese, there is reason to conclude that adultery is not capital; for it is said that fond parents will make a contract with their daughters future husbands to allow them the indulgence of a gallant.
In Spain, they punished adultery in men by cutting off that part which had been the instrument of the crime. In Poland, before Christianity was established, they punished adultery and fornication in a very particular manner: the criminal they carried to the market-place, and there fastened him by the testicles 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.
The Saxons formerly burnt the adulteress, and over her ashes erected a gibbet, whereon the adulterer was hanged. In this kingdom, likewise, adultery, by the ancient laws, was severely punished. King Edmund the Saxon ordered adultery 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 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 grieved 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, is more wisely calculated to prevent the frequency of the offence, which ought to be the end of all laws, than a severer punishment. He that by a judgement of law is, according to circumstances, stripped of great part of his fortune, thrown into prison till he can pay it, or forced to fly his country, will, no doubt, in most cases, own that he pays dearly for his amusement.
As to the moral turpitude of this offence, some have vainly endeavoured to deny or explain it away by various arguments, and even by an appeal to Scripture. On the part of the man who solicits the chastity of a married woman, it certainly includes the crime of seduction, and is attended with mischief still more complicated and extensive: It creates a new sufferer, the injured husband, upon whose simplicity and affection is inflicted a wound the most painful and incurable that human nature knows. The infidelity of the woman is aggravated by cruelty to her children, who are generally involved in their parents' shame, and always made unhappy by their quarrel.
It has been argued, that these consequences ought less to be attributed to the crime than to the discovery. But, in the first place, the crime could not be discovered unless it were committed, and the commission is never secure from discovery. Secondly, If adulterous connections were allowable whenever the parties could hope to escape detection, which is the conclusion to which this argument leads, the husband would be left no other security for his wife's chastity, than in her want of opportunity or temptation; which would probably deter most men from marrying; or render marriage a state of continual jealousy and alarm to the husband, which would end in the slavery and confinement of the wife.
The marriage-vow is "witnessed before God," and accompanied with circumstances of solemnity and religion which approach to the nature of an oath. The married offender, therefore, incurs a crime little short of perjury, and the seduction of a married woman is little less than subornation of perjury:—and this guilt is independent of the discovery.
But the usual apology for adultery is the prior transgression of the other party; and so far indeed, as the bad effects of adultery are anticipated by the conduct of the husband or wife who offends first, the guilt of the second offender is extenuated. But this can never amount. Adultery amount to a justification; unless it could be shown that the obligation of the marriage vow depends upon the condition of reciprocal fidelity; a construction which appears founded neither in expediency, nor in the terms of the vow, nor in the design of the legislature which prescribed the marriage rite. The way of conferring the offence upon the footing of provocation and retaliation, is a childish trifling with words.
"Thou shalt not commit adultery," was an interdict delivered by God himself; yet Scripture has been adduced as giving countenance to the crime. As Christ told the woman taken in adultery, "Neither do I condemn thee," we must believe, it is said, that he deemed her conduct either not criminal, or at least not a crime of the heinous nature we reprobate it to be. But from a more attentive examination of the case, it will be evident that nothing can be concluded from it favourable to such an opinion. The transaction is thus related*: "Early in the morning Jesus came again into the temple, and all the people came unto him; and he sat down and taught them. And the Scribes and Pharisees brought unto him a woman taken in adultery; and when they had set her in the midst, they say unto him, Master, this woman was taken in adultery in the very act. Now Moses in the law commanded us that such should be stoned, but what sayest thou? This they said, tempting him, that they might have to accuse him. But Jesus stooped down, and with his finger wrote on the ground, as though he heard them not. So when they continued asking him, he lifted up himself, and said unto them, He that is without sin among you, let him first cast a stone at her; and again he stooped down and wrote on the ground: and they which heard it, being convicted by their own conscience, went out one by one, beginning at the eldest, even unto the last; and Jesus was left alone, and the woman standing in the midst. When Jesus had lifted up himself, and saw none but the woman, he said unto her, Woman, where are those thine accusers? Hath no man condemned thee? She said, No man, Lord; and Jesus said unto her, Neither do I condemn thee; go and sin no more."
This they said tempting him, that they might have to excuse him; that is, to draw him into an exercise of judicial authority, that they might have to accuse him before the Roman governor of usurping or intermeddling with the civil government.
"This was their design; and Christ's behaviour throughout the whole affair proceeded from a knowledge of this design, and a determination to defeat it. He gives them at first a cold and full reception, well suited to the insidious intention with which they came: he stooped down, and with his finger wrote on the ground as though he heard them not." When they continued asking him, when they teased him to speak, he dismissed them with a rebuke, which the impertinent malice of their errand, as well as the secret character of many of them, deserved: "He that is without sin (that is, this sin) among you, let him first cast a stone at her." This had its effect. Stung with the reproach, and disappointed of their aim, they stole away one by one, and left Jesus and the woman alone. And then follows the conversation, which is the part of the narrative most material to our present subject. "Jesus saith unto her, Woman, where are Adultery's thine accusers? Hath no man condemned thee?" She said, No man, Lord. And Jesus said unto her, "Neither do I condemn thee; go and sin no more." Now, when Christ asked the woman, "Hath no man condemned thee?" he certainly spoke, and was understood by the woman to speak, of a legal and judicial condemnation; otherwise her answer, "No man, Lord," was not true. In every other sense of condemnation, as blame, censure, reproof, private judgment, and the like, many had condemned her; all those, indeed, who brought her to Jesus. If then a judicial sentence was what Christ meant by condemning in the question, the common use of language requires us to suppose that he meant the same in his reply, "Neither do I condemn thee:" i.e., I pretend to no judicial character or authority over thee; it is no office or business of mine to pronounce or execute the sentence of the law. When Christ adds, "Go and sin no more," he in effect tells her that she had sinned already; but as to the degree or quality of the sin, or Christ's opinion concerning it, nothing is declared, or can be inferred, either way."
It has been controverted, whether adultery may be lawfully committed in war, with the enemies wives? The answer is in the negative, and the authorized practice of civilized nations is agreeable to this. It has also been a famous question, whether it be lawful for a woman to commit adultery with the consent of her husband, and for the procuring some great good to him? St Austin apparently allows of it; at least, does not condemn it*.
It has likewise been a dispute, whether it be lawful Dom. in for one of the parties married to commit adultery, with Mont. lib. the consent of the other, for the sake of having childi. cap. 16. dren? Of which we have instances in Abraham, who, § 49. et De on this account, conversed with Hagar; and likewise Gib. XVI. among the Greeks and Romans. Pollman, a German cap. 15. professor, has a dissertation on the husband's right to alienate his wife's body to another's use.
It is much disputed, whether adultery dissolves the bond of matrimony, and be a sufficient cause of divorce, so that the parties may marry again. This was allowed in the ancient church, and is still continued in the Greek, as well as the Lutheran and Calvinist churches. Romanists, however, disallow of it, and the council of Trent even anathematized those who maintain it; though the canon of anathematization was mitigated in deference to the republic of Venice, in some of whose dominions, as Zante, Cephalonia, &c., the contrary usage obtains. The ecclesiastical courts in England so far agree with the Papists, that they only grant a divorce à mensa et thoro, in case of adultery; so that a complete divorce, to enable the parties to marry again, cannot be had without an act of parliament.
Adultery is also used in ancient customs, for the punishment or fine imposed for that offence, or the privilege of prosecuting for it. In which sense, adulterium amounts to the same with what the Saxons call legerwita.
Adultery is sometimes used in a more extensive sense, for any species of impurity or crime against the virtue of chastity; and in this sense divines understand the seventh commandment.
Adultery ADULTERY is also used, especially in Scripture, for idolatry, or departing from the true God to the worship of a false one.
ADULTERY is also used, in ecclesiastical writers, for a person's invading or intruding into a bishopric during the former bishop's life. The reason of the appellation is, that a bishop is supposed to contract a kind of spiritual marriage with his church. The translation of a bishop from one see to another was also reputed a species of adultery; on the supposition of its being a kind of second marriage, which, in those days, was esteemed a degree of adultery. This conclusion was founded on the text of St Paul, Let a bishop be the husband of one wife, by a forced construction of church for wife, and of bishop for husband. (Du Cange).
ADULTERY is also used by ancient naturalists, for the act of ingrafting one plant upon another. In which sense, Pliny speaks of the adulteries of trees, arborum adulteria, which he represents as contrary to nature, and a piece of luxury or needless refinement.