I. Adultery in General.—Adultery considered as a theft.
II. Adultery in Melanesia.—Indulgence and severity of Tasmanian and Australian husbands—Adultery at New Caledonia.
III. Adultery in Black Africa.—Among the Hottentots, at the Gaboon, in middle Africa, in Abyssinia.
IV. Adultery in Polynesia.—Punishment of unauthorised adultery—The “fire-lighter” at Noukahiva.
V. Adultery in Savage America.—Among the Esquimaux—Special penalty among the Redskins—Obscene retaliation.
VI. Adultery in Barbarous America.—Among the Pipiles in Yucatan, in Mexico, in Peru, in Guatemala.
VII. Adultery among the Mongol Races and in Malaya.—Among the nomad Tartars, in Thibet, in China, in Japan, in Malaya.
VIII. Adultery among the Egyptians, the Berbers, and the Semites.—Penalty of adultery in ancient Egypt; among the Hebrews, the Arabs, and in Kabyle.
IX. Adultery in Persia and India.—Penalty of adultery in Persia—Adultery in the Code of Manu—Fraternal and authorised adultery—The obligation of a double vengeance.
X. Adultery in the Greco-Roman World.—Legal adultery according to Lycurgus and Solon—Punishment of illegal adultery—Adultery in primitive Rome—Lex Julia—Legal vengeance of the father—Obscene retaliation—Laws of Antoninus, of Septimus Severus, and of Constantine.
XI. Adultery in Barbarous Europe.—Among the Tcherkesses, the Visigoths, the Francs, under Charlemagne—Singular penalties of the Middle Ages.
XII. Adultery in the Past and in the Future.
We will now pass in review some of the principal penalties (the enumeration of all of them would be too long) with which the men of all times and races have attempted to repress adultery. That the human species, and especially the primitive, unpolished human species, is one of the most ferocious of the animal kingdom, stands out strikingly from these investigations; but it is perhaps in regard to adultery that the cruelty and injustice of men are most strongly shown; and by the word “men” here we mean the masculine half of mankind, for generally the only adultery which has been punished has been that of the woman. As for the adultery of the husband, men have been very slow in admitting that it was a wrong of which the wife might complain.
The reason of this revolting partiality is very simple. Diderot makes Orou tell it in his Supplément au Voyage de Bougainville; it is that “the tyranny of man has converted the possession of woman into a property.”[625]
On the whole, our long inquiry has abundantly proved that very generally, in human societies, marriage has been, or is still, a bargain, when not a capture. In all legislations the married woman is more or less openly considered as the property of the husband, and is very often confounded, absolutely confounded, with things possessed. To use her, therefore, without the authority of her owner, is a theft; and human societies have never been tender to thieves. Nearly everywhere theft has been considered a crime much more grave than murder. But adultery is not a common theft. An object, an inert possession, are passive things; their owner may well punish the thief who has taken them, but him only. In adultery, the object of the larceny, the wife, is a sentient and thinking being—that is to say, an accomplice in the attempt on her husband’s property in her own person; moreover, he generally has her in his keeping; he can chastise her freely, and glut his rage on her without any arm being raised for her defence. On the contrary, in letting loose his vengeance the husband will frequently have public opinion and law on his side, when the latter does not take on itself the punishment of the guilty one. But let us listen once more to the eloquent language of facts.
In Tasmania and Australia the women were, or are, considered as the property of the men. We have seen that in these countries there is no care for decency or chastity, and that wives are often obtained by brutal rape. Their proprietors also make no scruple of letting them out, lending them, or bartering them; they have the fullest right to use or abuse them. The Tasmanians felt very honoured if a white man borrowed their wives, but they none the less chastised, and very cruelly too, unauthorised infidelities, on the simple ground, as their panegyrist, the Rev. Bonwick, tells us, of their right of ownership.[626] In certain Australian tribes, organised in classes, the women were reputed common to all the individuals of the same class, but all intimate relation with a man of another group was a most grave adultery for both the guilty ones—a social adultery.[627]
In the greater number of New Caledonian tribes the punishment of adultery is left to the care of the injured husband, who kills the thief, if he can, but often contents himself with giving a severe punishment to his wife, sometimes inflicting a sort of scalping. At Kanala, however, adultery has already become a social crime. The man who commits it is led before the chief, judged by the council of elders whom the chief presides over, and executed on the spot.[628] But in one way or another, whether he incurs the social vengeance or that of the offended one—the robbed one, rather—and of his relatives, the New Caledonian who commits adultery risks his life. Sometimes, however, he can get off by paying a fine, after the old German fashion. Often also, in case of adultery committed by a married man, the New Caledonians practise a singular retaliation: the adult men of the village simply violate the wife of the delinquent.[629] The wives of the chiefs being much more sacred than the others, the slightest attempt on the rights of their proprietors risks being cruelly punished. M. Moncelon has seen a man condemned to death merely for having looked at the wife of the chief while she was picking up shells;[630] it was regarded as treason. This ferocity in the repression of adultery is not at all special to Melanesia. With some variations, it is found in all times and in all countries. It is worthy of remark also that even when the adulterous man is punished, it is simply because he has robbed another husband, and not because he has failed in conjugal faith.
III. Adultery in Black Africa.
We have previously seen that among the black populations of Africa marriage is a simple bargain, and that the negresses are only moderately chaste. Now, as the purchase of wives and the absence of chastity in the women are factors eminently suited to produce adultery, we shall not be surprised to find that it is very common in Africa; it is nevertheless very severely punished there, but only because it is a very grave outrage on property. Among the Hottentots, the husband, having the right of life and death[631] over his wife or wives, and being allowed to kill them for the smallest offence, naturally enjoys the same right, with a much stronger reason, when they commit an unauthorised infidelity, for he can lend or let them to strangers if he likes.[632]
In the tribes where polygamy already inclines to monogamy, and where there exists a chief wife ruling over the others, the gravity of the crime of adultery is in relation to the position occupied by the woman. Thus, at the Gaboon, Du Chaillu tells us, where the women are extremely dissolute, a distinction is made in their infidelities. The adultery of the chief wife is an enormous crime. The man who has been an accomplice in it is, at the very least, sold as a slave; but adultery with less important wives can be atoned for by a large compensation.[633] As for the woman, her pecuniary value often protects her. The husband-proprietor has bought his wife, and he cares very little for the purity of her morals, since he has no scruple in making her an object of traffic;[634] therefore, whenever she is unfaithful without his permission, the consideration of the cost of purchase and of the possible profit of letting her out, often restrains his vengeful arm. He is free, however, to punish or to pardon, and sometimes the chastisement of adultery is terrible. At Bornou, for example, the guilty ones are bound hand and foot, and their heads are smashed by being struck together.[635] At Kaarta, says Mungo Park, the two guilty ones are put to death. With the Soulimas there is a singular exception to this. The adulterous woman merely has her head shaved, and she loses a privilege which is probably of Berber origin—viz., that of quitting her husband at will, simply by refunding him the amount of purchase-money he has paid for her. All the vengeance of the husband falls on the lover, and he makes him his slave.[636] At Jouida, in Dahomey, the offended husband had still the right, in 1713, of invoking judicial power in order to have his guilty wife strangled or beheaded by the public executioner.[637] Her accomplice was not spared, and sometimes, says Bosman, he was burned at a slow fire. This cruel wish to make delinquents suffer a long time is found again in Uganda, where King M’tesa caused adulterers to be dismembered, having one limb at a time cut off and thrown to the vultures, who feasted on it before the eyes of the sufferers.[638] With the Ashantees, the husband, as sovereign justiciary, can either kill his wife, or marry her to a slave, or cut off her nose, according to his pleasure.[639] We find this last punishment specially applied to adultery in various countries, and Diodorus will tell us the motive for it. On the Senegal coast the all-powerful protection of money saved the life of adulterers, and the offended husbands spared them in order to sell them to European slave-traders.
In Abyssinia the conjugal bond is so frail, morals are so shameless, and divorce is so easy, that adultery is rarely taken in a tragic light. Formerly the injured husband often confined himself to chasing from his house the adulterous woman, clothed in rags for the occasion.[640]
Polynesian customs alone would suffice to prove that in primitive countries adultery is simply punished as a robbery, or commercial fraud. As regards sexual morality, or rather immorality, nothing can be compared to what was practised in Polynesia, where all modesty was unknown, where the husbands willingly let out their wives, and the intimate friend of the husband (tayo) had the right to share his wife with him. But dissolute as they were, these islanders were very determined conjugal proprietors, and they sometimes punished adultery with the most extreme severity. The missionary, Marsden, relates that a New Zealand chief killed his adulterous wife by dealing her a blow on the head with his club. Public opinion approved of the deed, and the brother of the dead woman came to take the body, only making a feint of retaliation, because the punishment was considered to be merited.[641]
Cook saw at Tahiti a native man punished in the same way for adultery, by blows of the club; but in this case there was the aggravating circumstance that the woman belonged to a class superior to his.[642] In some islands, especially at Tahiti and Tonga, where the customs were less savage, and licence was more unbridled than in New Zealand, the women sometimes got off with a simple correction. We must again remark that what was blamed and punished was not the adultery itself, but adultery unauthorised, or not commanded by the legal owner—in short, theft.
At Noukahiva, says Krusenstern, there was a functionary called the “fire-lighter” who lived with the wife of a king. The duty of this dignitary was, in the first place, to obey the queen, and in the next to supply her husband’s place with her in case of prolonged absence on his part.[643] Taking this fact by the side of others, as, for example, the unlimited right of the friend, or tayo, over the wife, we see clearly what the Polynesians understood by adultery.
V. Adultery in Savage America.
The Esquimaux, who are as free from prejudices in their conjugal customs as the Polynesians, have also, at least certain of them, adopted the custom of joint husbands, cicisbei, who replace the husband in case of absence.[644] There are some, however, who blame the adultery of wives, and believe even that the fairies would kill them if their wives were unfaithful during their absence.[645] But all the Esquimaux are not equally easy going; some of them, the reindeer Koriaks, for example, kill at once the man and woman taken in adultery.[646]
The Redskins are always less tolerant; with them adultery is a very serious affair, although they often also consider the exchange of wives a mark of friendship. It is generally the husband who takes vengeance as he pleases, and he often does so by cutting open with his teeth the nose, and sometimes the ears, of the guilty woman. This was the practice with the Comanches,[647] the Yumas,[648] and the Sioux.[649] But the injured, or robbed, husband is at liberty to make a composition with the seducer.[650] He can at will either pardon—as did a Mandan husband who sent the wife to her lover, adding three horses to the present[651]—or he can put to death the faithless wife and her accomplice. By a rare exception, the Omahas recognised the right of the wife to revenge herself on an adulterous husband and his mistress.[652] With the Omahas, also, an adulterous wife was bound to a stake in the prairie, abused by twenty or thirty men, and then abandoned by her husband.[653] We have seen that this obscene mode of retaliation is in use at New Caledonia, and we shall find it again in the Roman Empire. The mode of vengeance with the Redskins, whether of the husband or the tribe, varied according to locality, but was often atrocious. Thus the Modocs of California publicly disembowelled the guilty woman.[654] Among the Hoopsas, another tribe of Californian Redskins, the male accomplice in the adultery lost one eye,[655] or, if he was married, the injured man took his wife.
The natives of South America were not more clement than their congeners in the north. The Caribees put both guilty ones to death.[656] The Guarayos also punished with death the accomplice in adultery as if he were a thief.[657]
From this rapid survey of savage countries we may conclude that adultery is everywhere considered as a robbery only, but at the same time as one of the gravest of robberies. The man who is guilty of adultery suffers consequently, by virtue of the right of retaliation, a punishment more or less severe. As for the adulterous woman, she is generally chastised by the husband-proprietor with extreme cruelty, no restraint existing to moderate his vengeance.
VI. Adultery in Barbarous America.
In the barbarous monarchies of all countries the chastisement of adultery is scarcely mitigated, and for a long time it is directly inflicted on the guilty woman by the husband or the parents.
With the Pipiles of Salvador the man who committed adultery was put to death, or became the slave of the offended husband.[658] In Yucatan the guilty ones were stoned or pierced with arrows; before this they were impaled or disjointed.[659] According to Herrara, among the Yzipecs the injured husband cut off the nose and ears of the adulterous woman.[660] The same author tells us that among the Guaxlotillans the woman was taken before the Cacique, and if found guilty she was cut in pieces and eaten.[661]
In ancient Mexico adultery was generally punished with stoning,[662] and in certain districts this crime entailed the quartering of the guilty woman; elsewhere, the judges simply ordered the husband to cut off her nose and ears.[663]
In Peru the law also punished ordinary adultery with capital punishment.[664] There was no chastisement terrible enough for adultery committed with one of the wives of the Inca, the son of the Sun: the guilty man was burnt, his parents were put to death, and his house destroyed (Pizarro).
Guatemala offered an exception;[665] there the affair was arranged by a composition—a fine of precious feathers paid to the husband. The latter could also repudiate his wife, or pardon her, in which last case he was much honoured. If the adultery was committed with the wife of a great lord, the crime naturally acquired an exceptional gravity; the guilty man was then strangled if he was noble, and if servile, was thrown down a precipice. We shall find elsewhere this hierarchic iniquity, for in this matter, as in others, various human societies and races repeat themselves.
VII. Adultery among the Mongol Races and in Malaya.
Thus the Mongols of Asia seem to have copied the Mongoloids of America. With the nomad Tartars a man of inferior class who has committed adultery with a woman of his own class pays the injured husband forty-five head of cattle; but the husband must revenge himself on the inconstant wife. The law invites him to do so; for if he kills her, the compensation of cattle remains his property; if not, it goes to the prince. But if it happens that a man of low condition has illicit intercourse with the wife of a prince, then the crime is terrible; the man is cut to pieces, the faithless wife is decapitated, and the family of the guilty man reduced to slavery.[666] If we may believe a modern traveller, Mongol customs have become considerably modified on this point, adultery being now extremely common in Mongolia, and so little repressed that the women hardly take the trouble to conceal it.[667]
In lamaic Thibet they do not regard adultery as a tragedy. The wife is corrected, and the lover pays a fine to the husband, or husbands, when there are several.[668]
Chinese legislation is relatively moderate in regard to adultery. In the first place it expressly forbids the husband to lend or let out his wife, under pain of twenty-four strokes with the bamboo.[669] The Chinese woman can certainly be imprisoned for adultery,[670] but she is chiefly punished by repudiation, which is obligatory on the husband on pain of twenty strokes of the bamboo.[671] She can, however, be sold either by the husband or by the judge to whom the offended husband remits her.[672] In contrast to certain barbarous legislations, the Chinese law is more severe in regard to adultery for the strong than for the weak. “Whoever, on the strength of his power or credit, shall take away the wife or the daughter of a free man to make her his own wife, shall be imprisoned for the usual time and put to death by strangulation.”[673]
In Japan the law gives the offended husband the cruel and very general right to kill the guilty ones if taken in adultery, and forbids him to spare one.[674] We find this latter injunction, perhaps more humane than it appears, in ancient Roman legislation and elsewhere.
Nothing is at once more monotonous and more ghastly than this ethnographic review of the penalties against adultery.
Simple death has not sufficed to punish this crime, so enormous has it everywhere seemed; and thus other refinements of cruelty have been added—disembowelling, cutting in pieces, the stake, etc.
So far, among the races we have been investigating, Chinese legislation has been the wisest and most just, since, contrary to usual custom, it enacts the most severe penalties against the powerful man who takes advantage of his social position to commit adultery. Here and there, however, we find societies where adultery excites less fury. These societies are rare, and they are not always the most civilised.
At Java, for example, adultery is treated with clemency, especially if it is not committed with the chief wife. Even in this last case the guilty one, at least the man, is often only punished by public contempt.[675] The Dyaks punish conjugal infidelity with a fine only, for both parties.[676] This is a rare example of clemency, and it is given by a still barbarous race. We look in vain for such moderation among much more civilised peoples, as we shall see in studying ancient Egypt and the Berbers and Semites.
VIII. Adultery among the Egyptians, the Berbers, and the Semites.
Diodorus tells us that in ancient Egypt the man who was guilty of adultery received a thousand lashes, whilst the woman suffered the amputation of her nose, a very special penalty, which we have seen used in America and negro Africa, which we shall find also among the Saxons of England, and for which Diodorus has given us the reason. “The legislator,” he says, “has intended to deprive the woman of attractions which she had only made use of for seduction.”[677]
The Bible, also, is not tender towards adulterers. But it makes no distinction between the culpability of the man and the woman; stoning is for both. This terrible punishment is not only inflicted on the faithless wife, but on the inconstant fiancée. The accomplices even are put to death. There are, however, some distinctions, and precautions are taken to mitigate the rigour of the law; thus the guilty woman is only condemned to be stoned if the crime has been committed in the city. If in the fields, the man alone incurs stoning;[678] it is thus admitted that the woman may have suffered violence. Besides this, two witnesses are in all cases necessary to establish the crime. Lastly, the slave woman is not punished with death.[679]
The ancient Arabs were not more clement towards adultery than their cousins of Palestine, and the Bedouins, who have preserved more of the old customs, still consider adultery as the greatest of crimes. Burckhardt tells us that with them the adulterous woman is beheaded either by her father or her brother.[680] These are morals that go far beyond the prescriptions of the Koran. It would seem that Mahomet, much given to sexual pleasures himself, had not the courage to be too severe on others. He, indeed, calls the adultery of woman the “infamous action” par excellence, but he directs, nevertheless, that the crime be proved by four witnesses.[681] Moreover, the woman can escape the punishment by swearing four times before God that she is innocent, and that her husband has lied.[682] If she is convicted, both she and her accomplice receive a hundred lashes in public. Then the woman must be shut up “until death visits her, or God finds her a means of salvation,”[683] all of which is relatively mild enough.
Although Mussulmans, the Kabyles of Algeria do not keep to the somewhat humane prescriptions of the Koran in regard to adultery. In general, they are pitiless towards all infractions of morals. With them a kiss on the mouth is equivalent to adultery, and costs more than an assassination.[684] Every child born out of marriage is put to death, as well as its mother.[685] If the family tries to spare the guilty one, the Djemâa stones her and imposes a fine on the relatives.[686] The child and mother are stoned by the Djemâa or the family. Even when a woman is actually separated from her husband her adulterous child is killed, but the fate of the mother is left to the discretion of the relatives.[687]
Whoever carries off a woman, especially a married woman, and flees with her, becomes a public enemy, and the village where the fugitives have taken refuge must give them up under pain of war. The man is put to death, and the woman is restored to her family, who do not spare her.[688]
Custom authorises the deceived husband to sacrifice his wife, and if he rarely does it he is only hindered by the loss of the capital she represents; but usage requires the repudiation,[689] and the husband must, besides, take a striking and bloody vengeance on the lover.[690] At the very least he must simulate it, must fire, perhaps, on the guilty one with a gun loaded only with powder, and strike or slightly wound his wife’s lover. He has thus saved his honour; he is content with little, as in our rose-water duels.[691] With the Kabyles, more than elsewhere, marriage is a mercenary affair; consequently adultery naturally has pecuniary consequences. Thus, in compensation for adultery or the abduction of his wife, the husband has a right to the amount of the purchase, the thâmanth, or to an indemnity, sometimes arbitrary, sometimes tariffed;[692] but this compensation in money is distinct from the retaliation, and in no way hinders it.[693]
Lastly, the Kabyle legislation formally interdicts the marriage of the adulterous woman with her accomplice.[694]
Beginning with Melanesia and reaching Kabyle, I have sought among very different races, forming altogether the major part of mankind, the penalties used or decreed against adulterers. The result is a lamentable enumeration of sanguinary follies. I have passed by in silence the legendary or exceptional sufferings. I have not spoken of women crushed under the feet of elephants, violated by stallions, buried alive, etc. The common reality alone more than suffices to show that man, still far from being very delicate in conjugal or amorous matters, considers adultery as a great crime, especially for woman. It remains for us to see how the races calling themselves par excellence noble—the Indo-European races—have regarded this fault, so difficult to pardon.
IX. Adultery in Persia and India.
The Avesta does not mention adultery in ancient Persia. In modern Persia it has been punished with ferocity, except, naturally, when it was committed by the Shah, who chose, according to his fancy, any young girls or women among his subjects, without any one daring to find fault with him.[695] But for private individuals adultery was an abominable crime; the man who had committed it was put to death; the woman, treated of course more severely, was tied up alive in a sack and thrown into the water.
The Code of Manu gives us very complete information in regard to the penalty for adultery in ancient India. In the first place, it is understood that the adultery of the husband ought not to trouble the wife at all. “Although the conduct of her husband may be blameworthy, and he may give himself up to other amours and be devoid of good qualities, a virtuous woman ought constantly to revere him as a god.”[696] The adultery of the woman is naturally quite another thing. “If a woman, proud of her family and her importance, is unfaithful to her husband, the king shall have her devoured by dogs in a very frequented public place.”[697] If a woman of high rank, the lover also is not spared. “The king shall condemn her accomplice to be burned on a bed of red hot iron.”[698] For the less aristocratic adultery the punishment varies according to the caste. “For adultery with a protected Brahmanee, a Vaisya loses all his property, after imprisonment for a year; a Kchatriya is condemned to pay a thousand panas, to have his head shaved and watered with urine of an ass.” For the Brahmin the penalty is very light. “An ignominious tonsure is ordered instead of capital punishment for a Brahmin in the cases where the punishment of the other classes would be death.”[699] The Soudra, on the contrary, who holds criminal commerce with a woman belonging to one of the three first classes, “shall be deprived of the guilty member, and of all his possessions, if she was not guarded; but if it was so, he loses both his goods and his existence.”[700] It must be noticed, also, that very slight evidence suffices to prove adultery. “To pay little attentions to a woman, to send her flowers and perfumes, to frolic with her, to touch her ornaments or vestments, to sit with her on the same couch, are considered by wise men as proofs of an adulterous love.”[701]
On the other hand, the husband, if he has had no children, can oblige his wife to give herself either to his brother or to another relative. “Anointed with liquid butter and keeping silence, let the relative charged with this office approach during the night a widow or a childless woman, and engender one single son, but never a second.” Then, in the following verse, the Code alters: “Some of those who understand this question well, think that the aim of this precept is not perfectly attained by the birth of a single child, and that women may legally engender in this manner a second son.”[702] One verse, certainly less ancient, contradicts these curious texts, which are evidently survivals of primitive customs, according to which the husband disposed as he pleased of his feminine property. More modern Brahmanic legislation still authorises the husband to kill the wife and her lover if taken in adultery, and there would be nothing new to us in this, if, as in Japan, and as formerly at Rome, the law did not formally interdict him from killing only one of the two culprits.[703]
X. Adultery in the Greco-Roman World.
However Aryan India may be, she differs very remarkably from us. Let us look now at the way in which adultery has been regarded in Europe, and, to begin with, in the Greco-Roman world. We know that in classic antiquity marriage was quite crudely considered as a civic duty, and looked at from the single point of view of population. Lycurgus and Solon encouraged the impotent husband to favour the adultery of his young wife. Speaking of the laws of Lycurgus, Plutarch says—“He laughed at those who revenge with war and bloodshed the communication of a married woman’s favours; and allowed that, if any one in years should have a young wife, he might introduce to her some handsome and worthy young man, whom he most approved, and when she had borne a child of this generous race, bring it up as his own. Also he permitted that if a man of character should entertain a passion for a married woman upon account of her modesty and the beauty of her children, he might beg her husband that he might be allowed to plant, as it were, in rich and fertile soil, excellent children, the congenial offspring of excellent parents.”[704] This is marriage considered without the least prejudice, from the strict point of view of social utility. Solon imitates Lycurgus on this point, but with one restriction which recalls the Code of Manu, that the wife of an impotent husband should, with his permission of course, choose a lover from among the nearest relatives of the said husband.[705]
Custom sometimes went further than the laws, and Plutarch relates that Cimon of Athens, who was a model of goodness and greatness of soul, lent his wife to the rich Callias.[706] But that did not prevent the laws of Solon from authorising the husband to kill the adulterer.[707] Further, the law punished with civil degradation the too indulgent husband, and authorised the family tribunals to condemn to death the guilty woman, whom the husband himself executed before witnesses.[708] Lastly, a law of Draco, which was never abrogated, delivered the adulterous lover to the discretion of the husband.[709] After all, save for the good of the state, before which everything had to bend, this Greek legislation only consecrates the old primitive right by which the wife was the property of her husband.
In all that concerns marriage ancient Rome singularly resembles ancient Greece.[710] Her customs and regulations regarding the wife were at first of a savage atrocity. The term adulterer begins by being applied to the woman alone, and the law of the Ten Tables arraigned the guilty wife before the domestic tribunal; she was condemned and executed by the relatives themselves—Cognati necanto uti volent. Family tribunals continued to exist during the whole period of the republic, and even later, concurrently with the law Julia; but customs softened, and death was commuted to banishment to two hundred miles from Rome at the least, with the obligation of wearing the toga of the courtesan. The flagrante delicto naturally authorised the husband to kill the wife on the spot;[711] as for the lover, he could keep him, torture him, mutilate him, raffanise him (I dare not give the sense of this picturesque word), and deliver him to the ferocious lubricity of his slaves. Law and public opinion authorised the husband to fleece the surprised lover, and thus torture could be made a means of extorting money from him.
The Lex Julia, enacted either by Julius Cæsar or Augustus, attempted a reform of morals. By the terms of this law, which was in force till the time of Justinian, the husband could not kill his wife, taken in adultery, without being punished as a murderer. Neither could he put the lover to death unless he were a slave, a go-between (leno), a comedian, or a freed man of the husband or of the family. But the husband could hold him prisoner twenty hours in order to procure witnesses. The father had more extensive rights than the husband; he was authorised, in case of flagrante delicto, to kill his daughter and her lover, but he was to kill them both, and immediately. However, to enable him to act thus as justiciary, he must have the potestas still, and the crime must have been committed in his house, or in that of his son-in-law. The Lex Julia punishes the adulterous man by the confiscation of the half of his goods; it decrees the same punishment for the woman, and, besides, forbids her to marry after the repudiation, which was obligatory for the husband. The latter was obliged even to drive away his wife at once for fear of being called a go-between. This same Lex Julia made adultery a public crime which every citizen could bring before the tribunals, and it punished with the sword the adulterous man.[712] By degrees, and towards the Christian epoch, the legislation relative to adultery was amended.
In his quality of philosopher the Emperor Antoninus was more clement and just than his predecessors; by one law he interdicted the husband, who might himself be presumably guilty of adultery, to kill or sue his wife surprised in flagrante delicto. By degrees the customs became in time so free and so tolerant that, Septimus Severus having enacted new laws against adultery, the consul, Dion Cassius, found at Rome three thousand plaints on the register for this cause.[713] Theodosius, says an ecclesiastical writer, mitigated the penalties against adultery; he abolished an ancient Roman custom, inspired by the idea of retaliation, according to which the guilty woman, shut up in a little hut, was given to the passers-by, who even were to be furnished with little bells to attract attention.[714] The same ignoble penalty was, we have seen, in use among several of the Redskin tribes, and this fact proves, with many others, the original equality of the most diverse races in primitive savagery. Yielding to the ardour of a new convert, Constantine legislated with fury against all moral outrages, and decreed, without wincing, the punishment of death against adulterers of both sexes.
Justinian reformed and moderated legal severities. His code condemns the adulteress to be whipped, to have her hair shaved, and to be shut in a convent for life, if her husband does not take her back before the end of two years. In comparison with the excess of zeal shown by Constantine, this is nearly merciful. We have already said enough of the relaxation of manners under the wiser Pagan emperors. A marriage which was almost free procured for young women of the aristocracy an independence without much restraint; and in practice, at least, and in spite of the laws, adultery had ceased to be the abominable crime which it had begun by being.[715]
XI. Adultery in Barbarous Europe.
Our ancestors of barbarous Europe have had, as regards adultery, customs quite as ferocious as those of the savages of any other race. These same customs were still found recently among the Tcherkesses of the Caucasus, where the injured husband shaved the hair of the guilty woman, split her ears, and sent her back to her parents, who sold her or put her to death.[716] The lover was generally killed by the husband or his relatives. With the Lesghis, the husband who had not killed his adulterous wife in flagrante delicto could have her judged by the council of the tribe, and she was then condemned and stoned after the Hebrew fashion.[717]
In the Germanic and Scandinavian countries adultery has primitively been considered as an enormous crime. Thus the ancient Danes punished adultery with death, whilst murder was only fined. The old Saxons began by burning alive the adulteress, and on the extinct fire they hung or strangled her accomplice. In England King Edmund assimilated adultery to murder. King Canute ordered that the man should be banished, and the woman should have her nose and ears slit.
Tacitus tells us that with the Germans the adulteress was made to walk naked through the villages. Prior to the ordinances of Canute this old German custom was still preserved in England. Her head shaved, and her body bare to the waist, the woman was dragged out of her husband’s house in the presence of her relations, and then whipped to death through the streets. Her lover was hung on a tree.
According to the laws of the Visigoths, and in virtue of the law of retaliation, the adulteress was given into the hands of the wife of her lover, if the latter was married. And if the lover had no children, his goods were confiscated to the profit of the injured husband (lib. iii.).
The penalties ended by becoming entirely pecuniary, especially for the man. The fifth section of the Salic law, and the thirty-fifth section of the Ripuarian law, both inflict a fine of two hundred pence on whoever abducts a married woman. A law of Charlemagne orders the ravisher to restore the wife and all that she has carried off. If the husband does not exact a composition, the sheriff takes up the matter, banishes the guilty man, and condemns him to pay a fine of sixty pence. In the Middle Ages the adulteress was generally shut up for life in a convent, and lost her dowry. Whipping was sometimes added to these punishments, as is proved by an ordinance made in 1561.[718]
The laws of King John (1362), of Charles le Bel (1325), of Louis XI. (1463), show that certain towns preserved the old custom of making the adulteress run naked through the city. Lastly, until 1789, legislation, although moderating its severity, remains undecided, varies according to place, circumstance, and even social position; but the atrocious and coarse penalties of ancient times are abolished and forgotten.
XII. Adultery in the Past and in the Future.
Like all our ethnographical studies, this also affirms the law of progress. We have seen savagery pass into barbarism, and barbarism into civilisation. We have seen adultery punished at first as a robbery—but a most execrable robbery—and the chastisement falling chiefly on the woman as being a property in revolt. For her alone fidelity is obligatory. As to the adulterous husband, he is punished, if at all, on the ground of having abused the property of another, and not in the least because he has been unfaithful to his own wife. By slow degrees, however, equity asserts certain rights, and at the same time customs are humanised; marriage becomes less and less a “contract of slavery” for the woman; and, in spite of the recoil caused by catholicism, progress resumes its course, and we begin to foresee the time when, marriage being instituted on rational and just foundations, adultery will disappear, or nearly so, from our customs and our laws.
But surely that time is far distant. Our conscience is still so impregnated with the morality of past ages that our public opinion and our juries willingly pardon a man who murders his adulterous wife, while they are full of mercy for the conjugal infidelities of this ferocious justiciary. The antique morals which hold woman as a servile property belonging to her husband still live in many minds. They will be extinguished by degrees. The matrimonial contract will end by being the same kind of contract as any other, freely accepted, freely maintained, freely dissolved; but where constraint has disappeared deception becomes an unworthy offence. Such will be the opinion of a future humanity, more elevated morally than ours. Doubtless it will have no longer any tender indulgence for conveniently dissimulated adultery, but, on the other hand, it will no longer excuse the avenging husband.