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On fiich occafions, (hangers or people not Intcreftcd in the ' family, have been allowed to accufc, and profecute women for Adultery, either if committed during a hufband's long abfence, or thro' his connivance; Occult or fecrct Adultery, that kept concealed from the knowledge of the world, and only divulged to a confefTor or the like; — In the canon law this is moil favourably dealt with ; perfons were admitted to penance for this, and ab- folved, who were rcfufed it for the open kind. Da Cange i GIoiT. Lat. T. i. p. 75. fcq. Prefumptive Adultery, that which is only difcovered or in- ferred from certain figns, or indications. Such are the par- ties being found in bed together, Nudus cum Nuda. Interpretative, or reputed Adultery, denotes an act which tho' properly not included under tire denomination, yet is reputed as equivalent thereto, and accordingly punifhed as fuch.
Thus mixed marriages between Chriftiarts and Jews* e, g. between a chriftian man, and a jewifh woman, are put by the laws of Arcadius, and Honorius, on the footing of Adul- tery. Fabn\\ Lux Verit. c. 13. p. 281. Obferv. Halcns. T. 10. Obf. 10. §. 26. p. 372.
So alfo fecond marriages arc called by fomc fathers, as Athc- nagoras, and St. Ambrofe, an honourable or better fort of Adulteries. Sudd. Ifag. Theol. 1. 2. c. 4. p. 621. Bibl. Raif. T. 1. p. 300. fcq. & 323. Improper Adultery includes other extraordinary cafes and {pedes; fuch are the commerce with a woman only efpoufed, not actually married ; with a married woman who lives as a common whore ; with a married woman taking her for fingle; with a putative wife, or concubine, taking her for a real wife ; and with a nun* who by her vows is doomed efpoufed. Figurative Adultery, that intended only to rcprcfent, or prefigure another fait, or convey fomc other ihftrii£Kon. This coincides with typical, or allegorical Adultery, and ftands oppofed to actual. Thus David's Adultery is faid by St. Ambrofe to be a type of Chrift, who notwithstanding his former wife the jewifh church, married the Gentiles a . £0 alfo the Adultery of Mars and Venus, is turned into an allegory by naturalifts, moralifts, alchemifts b , &c, — [ J Nouv. Rep. Lett. T. 54* p. 233. b Bojjlt. du Poem. Epiq. 1, 5. c. 2. p. 413.] Single Adultery is that where only one of the parties is married, in contra diftinction from double Adultery, which is, where both parties are married. Calv. Lex. Jurid, 117. c. 8. Jnccjluom Adultery, that wherein the parties are related
within the third degree of confanguinity. Licit Adultery, that not prohibited by any exprefs or known Law.
It has been difputed whether Adultery be malum in fe, or only malum prsbibttum, i. c. evil in itfelf, or only rendered evil, by virtue of pofitive laws, and prohibitions c . St. Ambrofe and fome others have maintained, that Adultery was not cri- minal before the mofaic law d . — [ c Hehb. de civ. c. 6. §. 16. p. no. d V. Budd. Ifag. 1. 2. c. 4. p. 634. Id in Hilt. Ecclef. Par.. 1. Sec. 1. T. 2. p. 106.]
It has been controverted, whether Adultery may he lawfully committed in war, with the enemies wives c ? The anfwer is in the negative, and the authorifed practice of civilized nations is agreeable to this. It has alfo been a famous quef- tion, whether it be lawful for a woman to commit Adultery with the confent of her hufband, and for the procuring fome great good to him ? St. Auftin apparently allows of it, at leaft, does not condemn it. His reafons are, that as married people have a right to tire ufe of each others bodies, they may transfer that right to whom they pleafe ; a doctrine which he allows indeed, will not generally hold under the gofpel, but concludes, there may be particular cafes, wherein it may lawfully take place, as to fave the life of a hufband, or wife f ; as in the celebrated cafe of Acindymus governor of Antioch £. This father places the eflence of Adultery*, in the defire of carnal plcafure, a principle which will involve equally the greater part of people lawfully married, under the crime of Adultery \ — [ e Vitriar. Inft. Jur. Nat. Lib. 3. c. 4. Quef 13. i Augujl. de Serm. Dom. in Mont. 1. 1. c. 16. £. 49. ejufd. de Civ. Dei. 1. 16. c. 25. s Baylc, Diet. Crit. r. 1. p. 64. feq. in Voc. Acindymus. b V. Barbeyrac Traite de la morale des Peres, c. 16. Pref. Stat. Rep. Lett. T. 2. p. 23. feq. Bibl. Raifon. T. 3. p. 70.]
On the like footing ftands that other difpute, whether it be lawful for one of the parties married to commit Adultery, with the confent of the other, for the fake of having chil- dren ? Of which we have inflances in Abraham, who on this account couverfed with Hagar ; and of Cato, who for the fame reafon lent his wife Marcia to his friend Hortenfius. The like was allowed among the Greeks : thus by the laws ot Athens, an heirefs was permitted, in cafe file found her hufband defective, to make ufe of his neareft relation K Ly- curgus introduced the like practice among the Spartans, as the beft expedient to prevent jealoufy ; laughing at thofe who thought the violation of their bed fuch an infupportable affront, as to revenge it with cruel murthers and wars. He even encouraged people who had ^ndfome wives, and were
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in no great likelihood of having a breed thcmfelvcs, to admit healthy, able bodied men to converfe with them ; the iffue of fuch conversations was efteemed and loved by them as if they were their own *, Only kings were exempt from this law, to preferve the royal blood unmixt.— [' Potter. Arehieo! 1. 4- c. 12. T. 2. p. 298. k Strab. Geogr; 1. 7.] PoIIman, a German profeffor, has a differtation on the huf- band's right to alienate his wife's body to another's ufe. V. Nouv. Liter. Germ. An. 1707. p. 316. Illicit AdulterYj that which is exprefsly contrary to fome obligatory law : fuch, according to the generality of cafuifts, is all Adultery, proper, improper* finglej double, open, and oc- cult ; by rcafon of a natural bafenefs or turpitude in the thing, as well as its being a violation of conjugal faith, and injury to our neighbour.
In effect, punifhments have been annexed to Adultery in molt ages and nations, tho' of different degrees of feverity. In many it has been capital, in others venial* and attended only with flight pecuniary mulcts. Some of the penalties are fe- rrous, and even cruel, others of a jocofe and humorous kind; Even contrary things have been enacted as puniihmtnts for Adultery. By fome laws, the crimimals are forbid marrying together, in cafe they become fingle ; by others,- they are forbid to marry any befides each other ;' by fomc-j they are incapacitated from ever committing the like crime again ; by others, they are glutted with it till it becomes downright naufeous. See the Cyclopedia, and Aft. Erud. Lipf. An, 1690. p. 325. Id. 1687. p. 6. Bibl. Univ. T. 11, p 179; Among the rich Greeks, adulterers were allowed to redeem themfelves by a pecuniary fine ; the woman's father in fuch cafes, returned the dower he had received from her hufband, which fome think, was refunded by the adulterer. Another puiiifhment among thofe people was, putting out the eyes of adulterers. Potter, ubi fupr. p. 301. feq. The Athenians had an extraordinary way of punifhing adul- terers, called **(&*?&. «j«^, ;j»»«, praflifed at leaft on the poorer fort, who were not able to pay the fines. This was an awkward fort of cmpalcment, performed by thrufting one of the largeft raddifhes up the anus of the adulterer, or in defect thereof, a hfh with a large head called Mugil, Mullet. Al- ca:us is faid to have died this way, tho' it is doubted whe- ther the punifhment was reputed mortal. Juvenal and Ca- tullus fpeak of this cuftom, as received alfo among the Ro- mans, tho' not authorized by an exprefs law* as it was among the Greeks. V. Salmutb. ad Pancirol. P. 2. Tit. 2. p. 87. Pott. lib. cit. p. 304. Bayle Dia. Crit. T. 1. p. 135^ in Voc. Aim. Hoffm. Lex. Univ. Sltid. Lex. T. 3. p. 40. and 252. in Vqcib. irafal.Mila.a, e <.f«us. Juv. Sat. 10. v. 317. Catull. Epig. 15.
Among the Mingrelians, adultery is punifhed with the for- feiture of a hog, which is ufually eaten in good friendfhip between the gallant, the adultercfs, and the cuckold. Cbardirtj Voy. T. 1. p. 47. Bibl. Choif. T. 23. p. 359. Nouv. Rep. Lett. T. 8. p< 1068. _
In fome parts of the Indies, it is faid any man's wife is per- mitted to proftitute hcrfelf to him who will give an elephant for the ufe of her ; and it is reputed no fmall glory to her, to have been rated fo high. Mcntaigne, Efl'. 1. 3. c. 5< p. 878. ,
Adultery is faid to be fo frequent at Ceylon^ that not a wo- man but practifes it, notwithstanding its being puniihablc With death. Bibl. Univ. T. 23. p. 237.
Nor does it feem to have been lefs familiar among the antient Egyptians, inafmuch as when their blind king Pheron was told by an oracle, that he could only recover his light by waffling his eyes in the water of a woman, who had never known man, befide her own hufband j it was a long time e'er all Egypt could afford him a drop for the purpofe. V% Herodot. ap. Hift. Acad. Infcript. T. I. p. 241, Nouv. Rep. Lett. T. 52. p. 29.
Among the Japonefe, and divers other nations, Adultery is only penal in the woman s . Amorig the Abyffmians, the crime of the hufband is faid to be only punifhed on the inno- cent wife b . In the Marian iflands on the contrary, the woman is not punifhable for Adultery ; but if the man go affray, he pays feverely : the wife and her relations wafte his lands, turn him out of his houfe, csV. c — [* Turner. Hift. Relig. p. 484. b Lobo, Voyage d'Abyfs. ap. Bibl. Raif. T. 1. p. 59. c Nouv. Rep. Lett. T. 25. p. 321.] It is controverted whether, among the Romans, Adultery was allowed to be compounded ? Noodt fhews that it might, after the crime was rendered capital, not before ; which feema directly to thwart the conftitution of the emperors Dioelcfian and Maximian, where Adultery is declared the only capital crime excepted from compofition. M. Noodt takes the words exeepto adulteries, for an interpolation. De Tranfact. k Pact, Crim. ap. Jour des Scav. T. 33. p. 1 1 39* Ouv, des Scav* Oct. 1704. p. 469. Bibl. Choif. T. 4. p. 306. feq. By an edict of the emperor Antoninus, the hufband was not allowed to bring an action of Adultery againft his wife, un- lets he himfelf were innocent ; the reafon given for it is very natural, periniquum enim vUtiur ejp itt pudicitiam vir ob uxore exjgat y quam ipfe nan txhibeat. V. Mem, de Trev. 1723. p. 1179. Bibl. Univ. T, %%. p, 95.
5 There
