Abridgment of Ecclesiastical Laws, Treatise · Chapter 34
CHAP. XXXIIII.
Of Adultery.
1. What Adultery is, why ſo called, and in what Court Cognizable.
2. The Puniſhment of Adultery under the Levitical Law; and what it was anciently by the Civil Law.
3. The ſeveral Puniſhments thereof anciently according to the Quality of the Offenders reſpectively.
4. Adulterers compared to Idolaters; ſtrange Puniſhments of Adultery among the ancient Pagans.
5. The Severity of certain Eccleſiaſtical Laws in ancient times againſt Adultery.
6. The Cuſtoms among the Arabians, Mahumetans, Tartars, Indians, Pagans, in puniſhing Adulterers.
7. The Civil Law touching Jealouſie, and ſecond Marriage the former Huſband then living.
8. Adultery, what in ſenſu largo; how the puniſhment thereof is now mitigated at the Civil Law to what it was anciently; and how puniſhed at the Canon Law.
9. The diverſity of puniſhments inflicted on Adulterers according to the divers Cuſtoms of Nations reſpectively.
10. In what reſpect the Temporal Laws may take ſome Cognizance of Adultery.
11. What the Saxons of old in this Kingdom called the Puniſhment of Adultery; the remarkable Caſe of Sr. Jo. de Camois.
11. Adultery fals under a Threefold Conſideration of Law; the Hiſtory of the Adulterous Stork.
(1.) ADULTERY, or Adulterium, quaſi [ad alterius thorum] where the Rights of lawful Matrimony are violated, Lindwood's Conſt. de Offic. Archipresb. verb. tertium mandat. is the Incontinencie of Married perſons, or of perſons whereof the one at leaſt is under the Conjugal Vow.Adulterium eſt illicitus Concubitus conjugati & conjugatae. This is properly cognizable within the Eccleſiaſtical Jurisdiction; the Conviction whereof is by Examination and other Legal proof requiſite by the Law of the Church; which if committed by any of the Clergy, duely convicted thereof, he was puniſhable by Impriſonment at the diſcretion of the Biſhop or Ordinary of that Dioceſs wherein he reſides.bSt. 1. H. 7.
(2.) By the Levitical Law Adultery was puniſhed with Death in both Sexes,cLev. 20. 10. Deut. 22. 22. yea Stoned to death.dJoh. 8. 5. By the Civil Law alſo, which cals it the Violating of another mans Bed, the Puniſhment anciently was Death, both in the Man and in the woman: But afterwards the Puniſhment was mitigated by that Law as to the Woman, ſhe being firſt whipt, and then ſhut up in a Monaſterie; but by the Canons other Laws are inflicted.
(3.) At the Synod in Ireland, held by St. Patrick and other Biſhops an. 456. by the 19th. Canon thereof the Adulterers were to be excommunicated. At the Council held at Berghamſtead by Bertwald Archbiſhop of Canterbury, the Biſhop of Hereford and others, in the fifth year of Withred King of Kent an. 697. ſeveral Laws were made againſt Adultery, according to the ſeveral qualities and conditions of the Perſons offending reſpectively; beſide Excommunication againſt all ſuch; if the Adulterer were an Alien, he was to depart the Land, and to take his Sins and his Eſtate away with him: If a Soldier, then to be fin'd five pounds: If a Ruſtick or Countrey Husbandman (known in the Law by [Paganus]) then to pay fifty ſhillings: If a Prieſt, then to be inhibited from adminiſtring the Sacrament of Baptiſm.
(4.) Boniface Archbiſhop of Mentz, when he was the Popes Legate in Germany, an. 745. in his Epiſtle to AEthelbald King of Mercia, compares Adulterers to Idolaters; and moreover ſays, that the Greeks and Romans Compar'd Adultery to Blaſphemy, when committed by or with one of religious Orders; and adds, that among the Pagans, in the time of the old Saxons the very pactice was, that if a Virgin Adulterouſly defil'd her Fathers Family, or a Married woman plaid the whore, they were enforced to be their own Executioners, and by their own hands to reduce themſelves by Strangling to dead Corps, which being after burnt, the Adulterer was hangd over the Aſhes thereof; and at other times the Adultereſſes were by thoſe of their own Sex, out of their Zeal to Chaſtity, whipt from Village to Village, till they were whipt to death. In Antiqua Saxonia, In epiſt. Bonifac. ad Ethelbald. Ang. Reg. Antiq. Brit. f. 60. n. 20.ubi nulla eſt Chriſti cognitio, ſi Virgo in paterna domo maritata, ſub Conjuge fuerit adulterata, manu propria ſtrangulatam cremant, & ſupra foſſam ſepultae corruptorem ſuſpendunt; aut cingulo tenus veſtibus abſciſis flagellant eam caſtae matronae, & cultellis pungunt, & de Villa in Villam inter ſe occurrunt novae flagellatrices, donec interimant. Seldeni ad Eadmerum Notae & Specilegium. p 185. l. 37.By the Laws of William the Conqueror the Adulterer was to be put to death. Si Pater deprehenderit Filiam in Adulterio in domo ſua, ſeu in domo Generi ſui, bene licebit ei oure (lege forſan occire, occidere) Adulterium.
(5.) In the Eccleſiaſtical Laws of Keneth King of Scots, an. 840. By the 14th. and 15. Canon thereof it is ordained, That he who deflowrs a Virgin, ſhall dye for it, unleſs ſhe deſires him for her Husband; and that he who Adulterates another mans Wife not diſſenting, Both ſhall ſuffer the ſevereſt puniſhment, unleſs ſhe were under a force, in which caſe ſhe ſhall be acquitted. By the Eccleſiaſtical Laws of Hoel Dak King of Wales, an. 940. it was a ſufficient cauſe of Divorce, if a Woman did but kiſs any other man than her Husband. l. 18. Yea ſhe muſt loſe her Dower and all her Rights by that Law, and only for a kiſs; and by the ſame Law Adultery in the Man was held as a kind of Hoſtility. In the time of the latter Saxons by the Eccleſiaſtical Laws of King Edmund, an. 944. Adulterers and Murderers had one and the ſame puniſhment, and both alike denied Chriſtian Burial. After him, by the Eccleſiaſtical Laws of King Knute, an. 1032. Adulterers and ſuch as violated the Chaſtity of a Widow or a Virgin, were to be baniſhed and their Eſtates confiſcate: And in caſe a Wife playd the Strumpet, her Husband living, he was to poſſeſs himſelf of all her Eſtate Real as well as Perſonal, and ſhe to have her Noſe and Ears cut off, and an indelible Blot with perpetual Infamy to remain upon her Family.
(6.) The Arabians (as Strabo relates) though they uſed Inceſtuous Copulation with Siſter and Mother, yet puniſhed Adultery with death; but that only was Adultery in their account, which was out of the ſame Linage or Kindred, for otherwiſe All of the ſame Blood to uſe the ſame Woman, was but their (Inceſtuous) Honeſty. And by the very Alchoran not only is an unchaſt Look on another mans Wife forbiden, but alſo if a Wife be convicted of Adultery by the teſtimony of four Women, ſhe is confin'd to perpetual Impriſonment in her own houſe till ſhe dyes, and none ſuffered to come at her: And in ſome parts of the Grand Signiors Territories the Turks have a cuſtom to thruſt the Adulterers head into a Dung-Wallet of the Panch of a Beaſt new killed, and ſo to carry him through the Streets; but for a Chriſtian to have Carnal knowledg of any of their women, is death, unleſs he turn Turk. And with the Tartars their Women are ſo chaſt, as that Adultery is ſeldom heard of among them, but when it happens to be committed, they puniſh it alſo with death.eVin. l. 3. c. 86. Among the very Pagan Indians as at Dominica, Cuiana, Bantam, Japan, and other parts of the Indies Adultery is puniſhed with death:fScot. Hiſt. Likewiſe the Javans and Chinois or Chineſſes inflict the ſame puniſhment of death on Adulterers; and at Pequin, the City where the King of China makes his Reſidence, the Dowries or Joyntures of convicted Adultereſſes are beſtowed on the Hoſpitals of Female Orphans;gPurch. Pilg. p. 3. l. 2. c. 2. § 5. and at Petane, a Province joyning to Chinas their Noble Perſonages are for Adultery even by their own Parent either ſtrangled or ſtab'd to death, at their own choice which. At Braſile, the Husband might kill his Adulterous Wife,hLerius c. 17. and at Mexico or New Spain Adultery was death;iMex. Hiſt. alſo by the Laws of the Inguas, the ancient Lords of Peru, Adultery and Inceſt with Aſcendents or Deſcendents in the Direct Line was puniſhed with death; yet they held it no Adultery to have many Wives, whereof one only was principal, with whom Marriage was contracted, whom they wedded and received with a particular Matrimonial Ceremony, She only was held as the Adultereſs, and with the Adulterer died for it; the others being rather Concubines than Wives, were not underſtood by them as capable of this offence or puniſhment.kPurc. Pil. p. 3. l. 5. c. 6. Indeed in the Kingdom of Angola in AEthipia and at Bengala in the Indies Adultery is but the loſs of the Adulterers Noſe,lLinſ. c. 16. and in Guinea it is in the Woman but a Divorce and Baniſhment from her houſe, and in the Adulterer but a forfeiture of 24 Peſo's of gold to the King; and among the Jews, now ſince the Sword and Scepter departed from Judah, it is but a Penalty in ſtead of a puniſhment, and but a ſtanding up to the Chin in cold water to quench the Flames of Luſt. Theſe Preſidents are not here quoted for Laws, but only to let us ſee what Conſtructions even Pagans and Mahumetans have made of Adultery.
(7) By the Civil Law, a man jealous of his wife, may accuſe her before a Competent Judge of Adultery, if after three admonitions, in the preſence of three credible Perſons, given to the Perſon ſuſpected of too much Familiarity with her, he refrain not from her company and communication with her. Auth. Coll. 9. By which Law alſo both Sexes are puniſhed as guilty of Adultery; if a Woman, whoſe Husband is abroad in the Warrs, or otherwiſe abſent, marry again, before ſhe hath certain intelligence of his death either from the Commander under whom he ſerved, or from the Governour of the place where he died; for without ſuch certain intelligence, if ſhe preſume to marry again (how long ſoever her Husband is otherwiſe abſent from her) both ſhe and he who married her ſhall be puniſhed as Adulterers; and if her former Husband after ſuch her ſecond Marriage return back again, ſhe alſo ſhall return back again to her former Husband, if he will receive her, otherwiſe ſhe ſhall live apart from them both, Auth. Coll. ibid. Blackden married one within age, and after diſagreed, ſo that they might Marry elſwhere; and the firſt wife had Iſſue by other Husbands, and died; and Blackden was ſued in the Eccleſiaſtical Court by an Informer, ſuppoſing he had married a woman, living his other wife, and Blackden there proves the diſagreement, by which he had Sentence for him againſt the Informer, and yet he was taxed to give the Informer 20 Marks for coſts, which he refuſed to pay, and moved for a Prohibition, which was granted: For it was Injuſtice to allow coſts to one who had vexed him without cauſe, and when Sentence had been given againſt the Informer.
(8.) This Adultery or Adulterium, quaſi [ad alterum] being (as aforeſaid) an unlawful acceſs ad alterius thorum, although it properly refers to one or both ſuch as is or are in a Matrimonial State, yet by abuſe of words it is alſo commonly underſtood of corrupting or violating the Chaſtity of a Virgin or a Widow; as when we uſually ſay, ſuch or ſuch natural things are adulterated, when by reaſon of ſome Artifice they are corrupted and become not truly natural; and ſuch Wares and Merchandizes are adulterated, when there is ſome Fraud in the caſe, and ſo Adultery is repugnant to the very Nature of Matrimony, which of Two makes One, when as the other of One makes Two: The puniſhment whereof was anciently by the Civil Law, Capital as to the Man: But by the latter Laws of the Authenticks, the Women are firſt whipt, then thruſt into Monaſteries; and by the Canon Law it is Excommunication.
(9.) Plato made a Law, that whoever kill'd an Adulterer, ſhould go unpuniſhed. The Inhabitants of Arabia Foelix puniſhed it with death. Seleucus, otherwiſe Nicanor, King of Syria, that ſucceeded Alexander in the Government of that part of the Empire, decreed that whoever was apprehended in Adultery ſhould be exoculated, or have his eyes pluck'd out, which afterwards happened to be impartially firſt executed on his own SonoAElianus.. And albeit according to the proper Conſtruction of words there is a difference put between Adulterium and Stuprum, the former referring to perſons married, the other to Widows or Virgins. Modeſtin. in l. inter Stuprum ff. de verb. Sig. Yet by the Julian Law the word [Adultery] is uſed indifferently in reference to both: Id. Modeſt. in L. Stuprum. Ad L. Jul. de Adult. But to ſpeak properly, they are not Termini convertibiles, for though all Adultery be Whoredome, yet every Whoredome is not Adultery; each of which have their reſpective puniſhments according to the Laws and Cuſtoms of the place where they are committed. Grotius out of Leſſius affirms, that the Adulterer and Adultereſs are not only obliged to indemnifie the innocent party as to all charges of Alimentation of the unlawfully begotten, but alſo to make good what dammage the Legitimate Children may thereby ſuffer in their Inheritance, and whoever doth leſſen the Reputation of a Virgin either by force or inſinuations, ſhall refund to her as much as ſhe is thereby fallen in value, upon the hopes or expectation of her Preferment in Marriage: But if by his Sollicitations he hath obtained the uſe of her body under a promiſe of Marriage, he is obliged to marry her accordingly. Grot. de jur. bel. lib. 2. cap. 17. §. 5. & Leſs. lib. 11. cap. 10. Dub. 6.
(10.) Although this Sin of Adultery, is properly and of right belonging to the Cognizance of the Eccleſiaſtical Jurisdiction, yet it will not be denied, but that as it is an offence againſt the peace of the Realm (for which reaſon ſome are of opinion that Avoutry or Bandry is an offence Temporal as well as Spiritual) the Juſtices of the Peace may out of their Seſſions require Surety for the good Behaviour of ſuch as offend therein, as alſo of ſuch as by Common Fame are reputed Reſorters to houſes ſuſpected of maintaining Adultery or Incontinency, of ſuch as keep ſuch houſes, of lewd Women found in ſuch houſes, of common Whoremongers and common Whores; s28. Eliz. by Wray, Anderſon, & manwood. Crom. 140.And upon Information given to a Conſtable, that a Man and a Woman be in Adultery or Fornication together (or that a Man and woman of evil Fame or Report are gone to a ſuſpected houſe in the night) the Officer may take company with him, and if he find them ſo, he may carry them to Priſon, or before a Juſtice of Peace to find Sureties for the good Behaviour.t13. H. 7. 10. Br. Travers. 432.
(11. The Puniſhment of Adultery is diverſified according to the Laws and Cuſtoms of ſeveral Nations reſpectively as forementioned, and the Penalty thereof with the Saxons of old in this Kingdom was called Lairwite or Lecherwite, and Legergeldum, from two Saxon words ſignifying it ſeems concumbere and mulcta, vBl. Nomo. Lex. Verb. Lairwite.a Fine or Cuſtom of puniſhing offenders of that kind; which Priviledg is ſaid to have belonged anciently to the Lords of ſome Mannors, in reference to their Villains and Tenants.wVid. Fleta. l. 1. c. 47. to this purpoſe & Co. Inſt. par. 4. fo. 206. And by Statute Law, as alſo by the law of the Land, a Wife that clopes, and departs from her Husband with an Adulterer, and refuſes to be reconciled to him, loſeth or forfeits her Dower or Jointure,xSt. Weſt. 3 c. 34. Co. 2. p. Inſt. fo. 433. yea though ſhe departed from him with his own conſent, to which purpoſe remarkable is that Caſe of Sr. John de Camois, Son of the Lord Ralph Camois, in the time of Ed. the firſt, who of his own voluntary Will gave and demiſed his own Wife Margaret, a Daughter and Heir of John de Gaidesden unto Sr. William Pannell Kt. and together with her gave, granted releaſed, and Quit-claimed all her Goods and Chattels &c. ſo that neither himſelf nor any other in his name, ſhould ever after make any claim, or challenge any intereſt in the ſaid Margaret, or to or in her Goods or Chattels, &c. Whereupon, ſhe demanding her Dower in part of the Lands of Sr. John Camois there happened a Suit at Law, wherein ſhe was overthrown by Judgment given, That ſhe ought to have no Dower out of his Eſtate, upon the Stat. of Weſtm. 2. Quia receſſit à Marito ſuo in vita ſua, & vixit ut Adultera cum praedicto Gulielmo, &c.yCamd. Brit. tit. Suſſex. & Co. Inſt. 2. p. fo. 475.
(12.) There are of the Church of Rome, who hold that Adultery in conjugato cum ſoluta is minus peccatum quam in conjugata cum ſoluto; the reaſon they give for it is, for that it is far more repugnant to the Law of Nature that one Woman ſhould be joyned to two Men, than e contra, and ſuppoſe that Bigamy in the Patriarchs of old is an impregnable Fortification of that Reaſon; the Feminine Sex will give them but little thanks for this Opinion: But leaving them to enjoy the one and the other, we hold that This, as to the Inquiry and Puniſhment thereof, is properly within the Eccleſiaſtical Cognizance, it being moſt conſonant to Reaſon, that in what Jurisdiction Matrimonial Cauſes are controvertible, in the ſame ſhould the Violation of Conjugal Rights be diſcuſſed; to which end, as well the Civil as Canon Law (though that eſpecially) are furniſh'd with great variety of Conſtitutions, to obviate all manner of circumſtances relating to this Subject. Paſch. 8. car. B. R. Caſe Matingly verſ. Martyn. It was reſolved, that the cognizance of all Fornications, Adulteries, and of perſons ſuſpected to live in Adultery, doth belong to the Eccleſiaſtical Court. Jones Rep. So then Adulterium being quaſi Acceſſio ad alterius thorum, is the violation of anothers Bed; whence it is required, that either both, or one of the Parties, be under the Matrimonial Vow; for that conjugal circumſtance, either in the Male or Female, is as the cauſa ſine qua non, that the luxurious Act falls under the notion of Adultery, in diſtinction from acts of the ſame kind under other circumſtances: For the Law holds, that it may be committed in a threefold manner, either ex parte viri, vel feminae, vel utriuſ que alway ſuppoſing that one or both are Matrimonializ'd, and both living. The Penalty of Adultery hath varied according to the Laws and Cuſtoms of ſeveral Nations, and of ſeveral Ages in the ſame Nation; as appears by what hath been ſaid on this Subject;Leſſius de Juſt. & jur. lib. 4. cap 3. Dob. 10. nu. 71. The puniſhment of this epidemical evil, the very Brutes and meer Animals have given us a preſident of, if credit may be given to ſuch as have made report of the Stork, of which Leſſius writes out of another Author, as being a Creature of ſtrange abhorrency and revenge of Adultery, that by the very inſtinct of Nature the jealous Animal, impatient of vindicating his defiled Neſt, ſummon'd others of the ſame Feather to adviſe in the Caſe, Teſtifying that in his own time a certain Stork being as it were convicted of Adultery per olfactum maſculi ſui or the ſmelling of her Male, he conven'd a Flock of other Storks, before whom he ſo proſecuted (Neſcio qualiter, ſayes the Author) the Indictment againſt the Female Stork, that ſhe was firſt deplum'd, then torn in pieces, by the rude Multude of the other Storks, as if in a ſolemn Council they had all unanimoſly ſentenc'd her to death as an Adultereſs. If the report ſeems improbable, yet the Moral is very applicable.