As fidelity to the marriage-bed, especially on the part of woman, has always been considered as one of the most essential duties of matrimony, wise legislators, in order to secure that benefit have annexed punishment to the act of adultery; these punishments, however, have generally some reference to the manner in which wives were acquired, and to the value stamped upon woman by civilization and politeness of manners. It is ordained by the Mosaic code, that both the men and the women taken in adultery shall be stoned to death; whence it would seem, that no more latitude was given to the male than to the female. [p156] But this is not the case; such an unlimited power of concubinage was given to the men, that we may suppose him highly licentious indeed, who could not be satisfied therewith, without committing adultery. The Egyptians, among whom women were greatly esteemed, had a singular method of punishing adulterers of both sexes; they cut off the privy parts of the man, that he might never be able to debauch another woman; and the nose of the woman, that she might never be the object of temptation to another man.
Punishments nearly of the same nature, and perhaps nearly about the same time, were instituted in the East Indies against adulterers; but while those of the Egyptians originated from a love of virtue and of their woman, those of the Hindoos probably arose from jealousy and revenge. It is ordained by the Shaster, that if a man commit adultery with a woman of a superior cast, he shall be put to death; if by force he commit adultery with a woman of an equal or inferior cast, the magistrate shall confiscate all his possessions, cut off his genitals, and cause him to be carried round the city, mounted on a ass. If by fraud he commit adultery with a woman of an equal or inferior cast, the magistrate shall take his possessions, brand him in the forehead, and banish him the kingdom. Such are the laws of the Shaster, so far as they regard all the superior casts, except the Bramins; but if any of the most inferior casts commit adultery with a woman of the casts greatly superior, he is not only to be dismembered, but tied to a hot iron plate, and burnt to death; whereas the highest casts may commit adultery with the very lowest, for the most trifling fine; and a Bramin, or priest, can only suffer by having the hair of his head cut off; and, like the clergy of Europe, while under the dominion of the Pope, he cannot be put [p157] to death for any crime whatever. But the laws, of which he is always the interpreter, are not so favorable to his wife; they inflict a severe disgrace upon her, if she commit adultery with any of the higher casts; but if with the lowest, the magistrate shall cut off her hair, anoint her body with Ghee, and cause her to be carried through the whole city, naked, and riding upon an ass; and shall cast her out on the north side of the city, or cause her to be eaten by dogs. If a woman of any of the other casts goes to a man, and entices him to have criminal correspondence with her, the magistrate shall cut off her ears, lips and nose, mount her upon an ass, and drown her, or throw her to the dogs. To the commission of adultery with a dancing girl, or prostitute, no punishment nor fine is annexed.
ANECDOTE OF CÆSAR.
When Cæsar had subdued all his competitors, and most of the foreign nations which made war against him, he found that so many Romans had been destroyed in the quarrels in which he had often engaged them, that, to repair the loss, he promised rewards to fathers of families, and forbade all Romans who were above twenty, and under forty years of age, to go out of their native country. Augustus, his successor, to check the debauchery of the Roman youth, laid heavy taxes upon such as continued unmarried after a certain age, and encouraged with great rewards, the procreation of lawful children. Some years afterwards, the Roman knights having pressingly petitioned him that he would relax the severity of that law, he ordered their whole body to assemble before him, and the married and unmarried to arrange themselves in [p158] two separate parties, when, observing the unmarried to be much the greater company, he first addressed those who had complied with his law, telling them, that they alone had served the purposes of nature and society; that the human race was created male and female to prevent the extinction of the species; and that marriage was contrived as the most proper method of renewing the children of that species. He added, that they alone deserved the name of men and fathers, and that he would prefer them to such offices, as they might transmit to their posterity. Then turning to the bachelors, he told them, that he knew not by what name to call them; not by that of men, for they had done nothing that was manly; nor by that of citizens, since the city might perish for them; nor by that of Romans, for they seemed determined to let the race and name become extinct; but by whatever name he called them, their crime, he said, equalled all other crimes put together, for they were guilty of murder, in not suffering those to be born who should proceed from them; of impiety, in abolishing the names and honors of their fathers and ancestors; of sacrilege, in destroying their species, and human nature, which owed its original to the gods, and was consecrated to them; that by leading a single life they overturned, as far as in them lay, the temples and altars of the gods; dissolved the government, by disobeying its laws; betrayed their country, by making it barren. Having ended his speech, he doubled the rewards and privileges of such as had children, and laid a heavy fine on all unmarried persons, by reviving the Poppæan law.
Though by this law all the males above a certain age were obliged to marry under a severe penalty, Augustus allowed them the space of a full year to comply with its demands; but such was the [p159] backwardness to matrimony, and perversity of the Roman knights, and others, that every possible method was taken to evade the penalty inflicted upon them, and some of them even married children in the cradle for that purpose; thus fulfilling the letter, they avoided the spirit of the law, and though actually married, had no restraint upon their licentiousness, nor any incumbrance by the expense of a family.
POWER OF MARRYING.
Among nations which had shaken off the authority of the church of Rome, the priests still retained almost an exclusive power of joining men and women together in marriage. This appears rather, however, to have been by the tacit consent of the civil power, than from any defect in its right and authority; for in the time of Oliver Cromwell, marriages were solemnized frequently by the justices of the peace; and the clergy neither attempted to invalidate them, nor make the children proceeding from them illegitimate; and when the province of New England was first settled, one of the earliest laws of the colony was, that the power of marrying should belong to the magistrates. How different was the case with the first French settlers in Canada! For many years a priest had not been seen in the country, and a magistrate could not marry: the consequence was natural; men and woman joined themselves together as husband and wife, trusting to the vows and promises of each other. Father Charlevoix, a Jesuit, at last travelled into those wild regions, found many of the simple, innocent inhabitants living in that manner; with all of whom he found much fault, enjoined them to do penance, and afterwards married them. [p160] After the Restoration, the power of marrying again reverted to the clergy. The magistrate, however, had not entirely resigned his right to that power; but it was by a late act of parliament entirely surrendered to them, and a penalty annexed to the solemnization of it by any other person whatever.