The ancient Arabs were not more clement towards adultery than their cousins of Palestine, and the Bedouins, who have preserved more of the old customs, still consider adultery as the greatest of crimes. Burckhardt tells us that with them the adulterous woman is beheaded either by her father or her brother.[680] These are morals that go far beyond the prescriptions of the Koran. It would seem that Mahomet, much given to sexual pleasures himself, had not the courage to be too severe on others. He, indeed, calls the adultery of woman the “infamous action” par excellence, but he directs, nevertheless, that the crime be proved by four witnesses.[681] Moreover, the woman can escape the punishment by swearing four times before God that she is innocent, and that her husband has lied.[682] If she is convicted, both she and her accomplice receive a hundred lashes in public. Then the woman must be shut up “until death visits her, or God finds her a means of salvation,”[683] all of which is relatively mild enough.
Although Mussulmans, the Kabyles of Algeria do not keep to the somewhat humane prescriptions of the Koran in regard to adultery. In general, they are pitiless towards all infractions of morals. With them a kiss on the mouth is equivalent to adultery, and costs more than an assassination.[684] Every child born out of marriage is put to death, as well as its mother.[685] If the family tries to spare the guilty one, the Djemâa stones her and imposes a fine on the relatives.[686] The child and mother are stoned by the Djemâa or the family. Even when a woman is actually separated from her husband her adulterous child is killed, but the fate of the mother is left to the discretion of the relatives.[687]
Whoever carries off a woman, especially a married woman, and flees with her, becomes a public enemy, and the village where the fugitives have taken refuge must give them up under pain of war. The man is put to death, and the woman is restored to her family, who do not spare her.[688]
Custom authorises the deceived husband to sacrifice his wife, and if he rarely does it he is only hindered by the loss of the capital she represents; but usage requires the repudiation,[689] and the husband must, besides, take a striking and bloody vengeance on the lover.[690] At the very least he must simulate it, must fire, perhaps, on the guilty one with a gun loaded only with powder, and strike or slightly wound his wife’s lover. He has thus saved his honour; he is content with little, as in our rose-water duels.[691] With the Kabyles, more than elsewhere, marriage is a mercenary affair; consequently adultery naturally has pecuniary consequences. Thus, in compensation for adultery or the abduction of his wife, the husband has a right to the amount of the purchase, the thâmanth, or to an indemnity, sometimes arbitrary, sometimes tariffed;[692] but this compensation in money is distinct from the retaliation, and in no way hinders it.[693]
Lastly, the Kabyle legislation formally interdicts the marriage of the adulterous woman with her accomplice.[694]
Beginning with Melanesia and reaching Kabyle, I have sought among very different races, forming altogether the major part of mankind, the penalties used or decreed against adulterers. The result is a lamentable enumeration of sanguinary follies. I have passed by in silence the legendary or exceptional sufferings. I have not spoken of women crushed under the feet of elephants, violated by stallions, buried alive, etc. The common reality alone more than suffices to show that man, still far from being very delicate in conjugal or amorous matters, considers adultery as a great crime, especially for woman. It remains for us to see how the races calling themselves par excellence noble—the Indo-European races—have regarded this fault, so difficult to pardon.
IX. Adultery in Persia and India.
The Avesta does not mention adultery in ancient Persia. In modern Persia it has been punished with ferocity, except, naturally, when it was committed by the Shah, who chose, according to his fancy, any young girls or women among his subjects, without any one daring to find fault with him.[695] But for private individuals adultery was an abominable crime; the man who had committed it was put to death; the woman, treated of course more severely, was tied up alive in a sack and thrown into the water.
The Code of Manu gives us very complete information in regard to the penalty for adultery in ancient India. In the first place, it is understood that the adultery of the husband ought not to trouble the wife at all. “Although the conduct of her husband may be blameworthy, and he may give himself up to other amours and be devoid of good qualities, a virtuous woman ought constantly to revere him as a god.”[696] The adultery of the woman is naturally quite another thing. “If a woman, proud of her family and her importance, is unfaithful to her husband, the king shall have her devoured by dogs in a very frequented public place.”[697] If a woman of high rank, the lover also is not spared. “The king shall condemn her accomplice to be burned on a bed of red hot iron.”[698] For the less aristocratic adultery the punishment varies according to the caste. “For adultery with a protected Brahmanee, a Vaisya loses all his property, after imprisonment for a year; a Kchatriya is condemned to pay a thousand panas, to have his head shaved and watered with urine of an ass.” For the Brahmin the penalty is very light. “An ignominious tonsure is ordered instead of capital punishment for a Brahmin in the cases where the punishment of the other classes would be death.”[699] The Soudra, on the contrary, who holds criminal commerce with a woman belonging to one of the three first classes, “shall be deprived of the guilty member, and of all his possessions, if she was not guarded; but if it was so, he loses both his goods and his existence.”[700] It must be noticed, also, that very slight evidence suffices to prove adultery. “To pay little attentions to a woman, to send her flowers and perfumes, to frolic with her, to touch her ornaments or vestments, to sit with her on the same couch, are considered by wise men as proofs of an adulterous love.”[701]
On the other hand, the husband, if he has had no children, can oblige his wife to give herself either to his brother or to another relative. “Anointed with liquid butter and keeping silence, let the relative charged with this office approach during the night a widow or a childless woman, and engender one single son, but never a second.” Then, in the following verse, the Code alters: “Some of those who understand this question well, think that the aim of this precept is not perfectly attained by the birth of a single child, and that women may legally engender in this manner a second son.”[702] One verse, certainly less ancient, contradicts these curious texts, which are evidently survivals of primitive customs, according to which the husband disposed as he pleased of his feminine property. More modern Brahmanic legislation still authorises the husband to kill the wife and her lover if taken in adultery, and there would be nothing new to us in this, if, as in Japan, and as formerly at Rome, the law did not formally interdict him from killing only one of the two culprits.[703]