ADULTE´RIUM
ADULTE´RIUM adultery.
Greek
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 ἢ 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.
[
G.L] [
W.W]
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]
