X. Adultery in the Greco-Roman World.
However Aryan India may be, she differs very remarkably from us. Let us look now at the way in which adultery has been regarded in Europe, and, to begin with, in the Greco-Roman world. We know that in classic antiquity marriage was quite crudely considered as a civic duty, and looked at from the single point of view of population. Lycurgus and Solon encouraged the impotent husband to favour the adultery of his young wife. Speaking of the laws of Lycurgus, Plutarch says—“He laughed at those who revenge with war and bloodshed the communication of a married woman’s favours; and allowed that, if any one in years should have a young wife, he might introduce to her some handsome and worthy young man, whom he most approved, and when she had borne a child of this generous race, bring it up as his own. Also he permitted that if a man of character should entertain a passion for a married woman upon account of her modesty and the beauty of her children, he might beg her husband that he might be allowed to plant, as it were, in rich and fertile soil, excellent children, the congenial offspring of excellent parents.”[704] This is marriage considered without the least prejudice, from the strict point of view of social utility. Solon imitates Lycurgus on this point, but with one restriction which recalls the Code of Manu, that the wife of an impotent husband should, with his permission of course, choose a lover from among the nearest relatives of the said husband.[705]
Custom sometimes went further than the laws, and Plutarch relates that Cimon of Athens, who was a model of goodness and greatness of soul, lent his wife to the rich Callias.[706] But that did not prevent the laws of Solon from authorising the husband to kill the adulterer.[707] Further, the law punished with civil degradation the too indulgent husband, and authorised the family tribunals to condemn to death the guilty woman, whom the husband himself executed before witnesses.[708] Lastly, a law of Draco, which was never abrogated, delivered the adulterous lover to the discretion of the husband.[709] After all, save for the good of the state, before which everything had to bend, this Greek legislation only consecrates the old primitive right by which the wife was the property of her husband.
In all that concerns marriage ancient Rome singularly resembles ancient Greece.[710] Her customs and regulations regarding the wife were at first of a savage atrocity. The term adulterer begins by being applied to the woman alone, and the law of the Ten Tables arraigned the guilty wife before the domestic tribunal; she was condemned and executed by the relatives themselves—Cognati necanto uti volent. Family tribunals continued to exist during the whole period of the republic, and even later, concurrently with the law Julia; but customs softened, and death was commuted to banishment to two hundred miles from Rome at the least, with the obligation of wearing the toga of the courtesan. The flagrante delicto naturally authorised the husband to kill the wife on the spot;[711] as for the lover, he could keep him, torture him, mutilate him, raffanise him (I dare not give the sense of this picturesque word), and deliver him to the ferocious lubricity of his slaves. Law and public opinion authorised the husband to fleece the surprised lover, and thus torture could be made a means of extorting money from him.
The Lex Julia, enacted either by Julius Cæsar or Augustus, attempted a reform of morals. By the terms of this law, which was in force till the time of Justinian, the husband could not kill his wife, taken in adultery, without being punished as a murderer. Neither could he put the lover to death unless he were a slave, a go-between (leno), a comedian, or a freed man of the husband or of the family. But the husband could hold him prisoner twenty hours in order to procure witnesses. The father had more extensive rights than the husband; he was authorised, in case of flagrante delicto, to kill his daughter and her lover, but he was to kill them both, and immediately. However, to enable him to act thus as justiciary, he must have the potestas still, and the crime must have been committed in his house, or in that of his son-in-law. The Lex Julia punishes the adulterous man by the confiscation of the half of his goods; it decrees the same punishment for the woman, and, besides, forbids her to marry after the repudiation, which was obligatory for the husband. The latter was obliged even to drive away his wife at once for fear of being called a go-between. This same Lex Julia made adultery a public crime which every citizen could bring before the tribunals, and it punished with the sword the adulterous man.[712] By degrees, and towards the Christian epoch, the legislation relative to adultery was amended.
In his quality of philosopher the Emperor Antoninus was more clement and just than his predecessors; by one law he interdicted the husband, who might himself be presumably guilty of adultery, to kill or sue his wife surprised in flagrante delicto. By degrees the customs became in time so free and so tolerant that, Septimus Severus having enacted new laws against adultery, the consul, Dion Cassius, found at Rome three thousand plaints on the register for this cause.[713] Theodosius, says an ecclesiastical writer, mitigated the penalties against adultery; he abolished an ancient Roman custom, inspired by the idea of retaliation, according to which the guilty woman, shut up in a little hut, was given to the passers-by, who even were to be furnished with little bells to attract attention.[714] The same ignoble penalty was, we have seen, in use among several of the Redskin tribes, and this fact proves, with many others, the original equality of the most diverse races in primitive savagery. Yielding to the ardour of a new convert, Constantine legislated with fury against all moral outrages, and decreed, without wincing, the punishment of death against adulterers of both sexes.
Justinian reformed and moderated legal severities. His code condemns the adulteress to be whipped, to have her hair shaved, and to be shut in a convent for life, if her husband does not take her back before the end of two years. In comparison with the excess of zeal shown by Constantine, this is nearly merciful. We have already said enough of the relaxation of manners under the wiser Pagan emperors. A marriage which was almost free procured for young women of the aristocracy an independence without much restraint; and in practice, at least, and in spite of the laws, adultery had ceased to be the abominable crime which it had begun by being.[715]
XI. Adultery in Barbarous Europe.
Our ancestors of barbarous Europe have had, as regards adultery, customs quite as ferocious as those of the savages of any other race. These same customs were still found recently among the Tcherkesses of the Caucasus, where the injured husband shaved the hair of the guilty woman, split her ears, and sent her back to her parents, who sold her or put her to death.[716] The lover was generally killed by the husband or his relatives. With the Lesghis, the husband who had not killed his adulterous wife in flagrante delicto could have her judged by the council of the tribe, and she was then condemned and stoned after the Hebrew fashion.[717]
In the Germanic and Scandinavian countries adultery has primitively been considered as an enormous crime. Thus the ancient Danes punished adultery with death, whilst murder was only fined. The old Saxons began by burning alive the adulteress, and on the extinct fire they hung or strangled her accomplice. In England King Edmund assimilated adultery to murder. King Canute ordered that the man should be banished, and the woman should have her nose and ears slit.