Tacitus tells us that with the Germans the adulteress was made to walk naked through the villages. Prior to the ordinances of Canute this old German custom was still preserved in England. Her head shaved, and her body bare to the waist, the woman was dragged out of her husband’s house in the presence of her relations, and then whipped to death through the streets. Her lover was hung on a tree.
According to the laws of the Visigoths, and in virtue of the law of retaliation, the adulteress was given into the hands of the wife of her lover, if the latter was married. And if the lover had no children, his goods were confiscated to the profit of the injured husband (lib. iii.).
The penalties ended by becoming entirely pecuniary, especially for the man. The fifth section of the Salic law, and the thirty-fifth section of the Ripuarian law, both inflict a fine of two hundred pence on whoever abducts a married woman. A law of Charlemagne orders the ravisher to restore the wife and all that she has carried off. If the husband does not exact a composition, the sheriff takes up the matter, banishes the guilty man, and condemns him to pay a fine of sixty pence. In the Middle Ages the adulteress was generally shut up for life in a convent, and lost her dowry. Whipping was sometimes added to these punishments, as is proved by an ordinance made in 1561.[718]
The laws of King John (1362), of Charles le Bel (1325), of Louis XI. (1463), show that certain towns preserved the old custom of making the adulteress run naked through the city. Lastly, until 1789, legislation, although moderating its severity, remains undecided, varies according to place, circumstance, and even social position; but the atrocious and coarse penalties of ancient times are abolished and forgotten.
XII. Adultery in the Past and in the Future.
Like all our ethnographical studies, this also affirms the law of progress. We have seen savagery pass into barbarism, and barbarism into civilisation. We have seen adultery punished at first as a robbery—but a most execrable robbery—and the chastisement falling chiefly on the woman as being a property in revolt. For her alone fidelity is obligatory. As to the adulterous husband, he is punished, if at all, on the ground of having abused the property of another, and not in the least because he has been unfaithful to his own wife. By slow degrees, however, equity asserts certain rights, and at the same time customs are humanised; marriage becomes less and less a “contract of slavery” for the woman; and, in spite of the recoil caused by catholicism, progress resumes its course, and we begin to foresee the time when, marriage being instituted on rational and just foundations, adultery will disappear, or nearly so, from our customs and our laws.
But surely that time is far distant. Our conscience is still so impregnated with the morality of past ages that our public opinion and our juries willingly pardon a man who murders his adulterous wife, while they are full of mercy for the conjugal infidelities of this ferocious justiciary. The antique morals which hold woman as a servile property belonging to her husband still live in many minds. They will be extinguished by degrees. The matrimonial contract will end by being the same kind of contract as any other, freely accepted, freely maintained, freely dissolved; but where constraint has disappeared deception becomes an unworthy offence. Such will be the opinion of a future humanity, more elevated morally than ours. Doubtless it will have no longer any tender indulgence for conveniently dissimulated adultery, but, on the other hand, it will no longer excuse the avenging husband.
FOOTNOTES:
[625] Diderot, Supplément au Voyage de Bougainville, in Œuvres, t. ii. p. 245.
[626] Bonwick, Daily Life, etc., p. 72.