Adulterium
（
μοιχεία). Adultery.
1. Greek
Among the Athenians, if a man caught another in the act of criminal intercourse with his
wife, he might kill him, and the same law held with respect to a concubine (
παλλακή). Other punishment was likewise permitted. It appears that
at Athens there was no adultery unless a married woman was concerned, and even then there was
no adultery if the married woman was a prostitute or one engaged in selling anything in the
agora. If the husband chose to bring suit against the adulterer, it was called
μοιχείας γραφή. If the adultery was proven, the husband could not
condone the offence under penalty of
ἀτιμία. (See
Atimia.) The adulteress was excluded from the temple,
and if found there any one might treat her as he pleased, provided he did not kill or
mutilate her.
2. Roman
The general usages at Rome appear to have been very similar to the Athenian. The Lex Iulia
de Adulteriis, passed under Augustus, about B.C. 17, enacted them. By this 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
lenocinium. The husband or father in whose
power the adulteress was, had sixty days allowed for commencing proceedings against the wife,
after which time any other person might prosecute. A woman convicted of adultery was mulcted
in half of her dowry and the third part of her property (
bona), and
banished (
relegata) to some desolate island, such as Seriphos, for
instance. The adulterer was mulcted in half his property, and banished in like manner. 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.
The Julian law permitted the father (both adoptive and natural) to kill the adulterer and
adulteress in certain cases, as to which there were several nice distinctions established by
the law. If the father killed only one of the parties, he brought himself within the
penalties of the Cornelian law
de sicariis. The husband might kill
persons of a certain class, described in the law, whom he caught in the act
of adultery with his wife; but he could not kill his wife. 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. If the wife was divorced for
adultery, the husband was entitled to retain part of the dowry. 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. See Rein,
Das Criminalrecht der Römer.
