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ADULTE´RIUM adultery.


Among the Athenians, if a man caught another in the act of criminal intercourse (μοιχεία) with his wife, he might kill him with impunity. According to Lysias (de Caede Eratosth. § 2) the law was the same in all Greek states, oligarchical or democratic, and without reference to the rank or position of the offender (cf. Xen. Hiero 3.3). Other punishments short of death are alluded to in Aristophanes (Aristoph. Cl. 1083; Plut. 168) and Lucian (de Morte Peregr. § 9). The right of vengeance extended to the cases of a wife, mother, sister, daughter, or even a concubine (παλλακή), if she were the mother of free children (Lys. l.c. § 31; Dem. Aristocr. p. 637.53). But it was no adultery for a man to have connexion with a married woman who prostituted herself, or who was engaged in selling anything in the agora (Dem. c. Neaer. p. 1367.87). The husband might, if he pleased, take a sum of money from the adulterer by way of compensation, and detain him till he found sureties for the payment. If the alleged adulterer had been unjustly detained, he might bring an action against the husband; and, if he gained his cause, he and his sureties were released. If he failed, the law required the sureties to deliver up the adulterer to the husband before the court, to do what he pleased with him, except that he was not to use a knife or dagger. (Dem. l.c. p. 1367.85.)

The husband might also prosecute the adulterer in the action called μοιχείας γραφή. If the act of adultery was proved, the husband could no longer cohabit with his wife under pain of losing his privileges as a citizen (ἀτιμία). The adulteress was excluded even from those temples which foreign women and slaves were allowed to enter; and if she was seen there, any one might treat her as he pleased, provided he did not kill her or mutilate her. (Dem. l.c. p. 1374.115; Aeschin. c. Timarch. § 183.)

Lysias further tells us (l.c. § 32) that the law punished seduction more than actual violence: τοὺς βιαζομένους ἐλάττονος ζημίας ἀξίους ἡγήσατο εἶναι τοὺς πείθοντας. The infidelities of a husband, as might be expected, were viewed more leniently, and gave the wife no right of action for divorce.

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2. Roman

Adulterium properly signifies, in the Roman law, the offence committed by a man, married or unmarried, having sexual intercourse with a woman whom he knows to be another man's wife. Stuprum (called by the Greeks φθορά) signifies intercourse with an unmarried woman, but to live with a woman in the state of concubinage was not stuprum (D. 25, 7, 3.7). It was the condition of the female which determined the legal character of adultery; there was no adultery unless the female was married. The infidelity of the husband was restrained simply by moral and not by legal sanctions (Cato, ap. Gel. 10.23.5). The male who committed adultery was adulter, the female adultera. The Latin writers were puzzled about the etymology of the word adulterium; but if we look to its various significations besides that of illegal sexual intercourse, we find that we may safely refer it to the same root as that which appears in adultus. The notion is that of “growing to,” “fixing” or “fastening to” one thing on another and extraneous thing; hence, among other meanings, the Romans used adulterium and adulteratio as we use the word “adulteration,” to express the corrupting of a thing by mixing something with it of less value. Early Roman law appears to have left the punishment of adultery to private revenge and the jurisdiction of the family. (Dionys. A. R. 2.25; Suet. Tib. 35.) The husband and also the father of the adulteress were allowed to take the law into their own hands, and put to death the two guilty parties. The Lex Julia de Adulteriis deprived the husband of the right of killing his wife taken in adultery; under this law he was not entitled to kill the adulterer, unless the latter was an infamous person, and had been detected in the husband's house. (Paul. 2.26, 1-7; Coll. Leg. 4.8.) The Lex Julia left the father the power of killing his daughter. This power was strictly limited. Thus he was not entitled to put one of the parties to death and spare the other (if he killed only one of the parties, he brought [p. 1.30]himself within the penalties of the Cornelian law de Sicariis); the punishment had to be inflicted at once and on both; the father had only jurisdiction when the offence was detected in his own house or in that of the husband (Dig. 48, 5, 23.4; cf. Quint. 3.11. 7, 5. 10, 104. 7, 1. 6). If the father were a filius familias, he had not by the Lex Julia any power of killing, but notwithstanding this he was permitted to exercise it (Paul. Sent. 26, 2). He had no jurisdiction over an emancipated child. The Lex Julia de Adulteriis coercendis, passed in the time of Augustus (probably B.C. 17), repealed in its first chapter some prior enactments on the same subject, the exact purport of which is unknown. Horace (Hor. Carm. 4.5.21) alludes to the Julian law. By this enactment the husband and father of the adulteress were given the right of prosecuting the adulterer and adulteress; but if they did not do so within sixty days, any other person might prosecute (Dig. 48, 5; Tac. Ann. 2.85). A woman convicted of adultery was mulcted in half of her dos and the third of her separate property, and was banished (relegata) to some island. The adulterer forfeited half his property, and was banished in like manner, but not to the same island as the woman. The adulterer and adulteress were subjected also to civil incapacities. This law did not inflict the punishment of death on either party; and in those instances under the emperors in which death was inflicted, it must be considered as an extraordinary punishment, and beyond the provisions of the Julian law (Tac. Ann. 2.50; 3.24). By the Julian law, if a husband kept his wife after an act of adultery was known to him, and let the adulterer off, he was guilty of the offence of lenocininm. If the wife was divorced for adultery, the husband was entitled to retain part of the dos (Ulp. Fr. 6.12). The husband, by the fifth chapter of the Julian law, could detain for twenty hours the adulterer whom he had caught in the act, for the purpose of calling in witnesses to prove the adultery. The Emperor Constantine limited the right of prosecuting under the Lex Julia to the husband, father, brother, and uncle of the accused woman. In the same Constitution of Constantine, the offence of the adulterer was made capital (sacrilegos autem nuptiarum gladio puniri oportet, Cod. 9.9,29). By the legislation of Justinian (Nov. 134, 100.10), the law of Constantine was probably only confirmed; but the adulteress was put into a convent, after being first whipped. If her husband did not take her out in two years, she was compelled to assume the habit, and to spend the rest of her life in the convent. Justinian also provided for the disposal of the forfeited property of the adulterer and adulteress.

The authorities for the Lex Julia de Adulteriis are collected by Rein, Das Criminalrecht der comer; cf. Wächter, Abh. 1.102-122; Rudorff, Röm. Rechtsgesch.

[G.L] [E.A.W]

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