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 mults. Some of the penalties are serious, and even cruel; others of a jocose and humourous 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 among those people was putting out the eyes of adulterers.
The Athenians had an extraordinary way of punishing adulterers, called αποκαραυσμός και σαραντήμες, practised at least on the poorer sort who were not able to pay the fines. This was an awkward sort 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. Alcaeus 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 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 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, Adultery, 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; if he refused, she was shaven, 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 constipation; 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 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, 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 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 particular manner: the criminal they carried to the market-place, 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 Adultery punished by fine and penance. The common law takes no further notice of it than to allow the party aggrieved an Advocate. 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.
Adultery is, both in England and Scotland, a ground of divorce; but in the former a complete divorce can only be obtained through an act of parliament, whereas in the latter a complete divorce may be effected by the sentence of the consistorial or commissary court. The adulterous parties are by the law of Scotland prohibited from intermarrying with each other. See Divorce.
Adultery is used in Scripture for idolatry, or departing from the true God to the worship of a false one.
Adultery is used by 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.
Adultery is 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.