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There arc various conjectures concerning the antient punifh- ment of Adultery among the Romans. Some will have it to have been made capital, by a law of Romulus, and again by the twelve tables. Others, that it was firft made capital by Augufhis ; and others, not before the emperor Conftantine. The truth is, the punilhment in the early days was very va- rious, much being left to the difcretion of the hufband and parents of the adulterous wife, who exereifed it differently, rather with the filence and countenance of the magiftrate, than any formal authority from him. Thus" we are told the wife's father was allowed to kill both parties, when caught in the fact, provided he did it immediately, killed both to- gether, and, as it were, with one blow. The fame power ordinarily was not indulged the hufhand, except the crime were committed with fome mean, or infamous perfon ; though, in other cafes, if his rage carried him to put them to death, he was not punifhed as a murderer d . On many occafions, however, revenge was not carried fo far, but mu- tilating, caftrating % cutting off the ears, nofes, &c. ferved the turn. The punifliment allotted by the lex Julia, was not, as many have imagined, death; but rather baniihment, or deportation, being interdicted fire and water : though Octa- vius appears, in feveral initances, to have gone beyond his own law, and to have put Adulterers to death. Under Macrinus, many were burnt at a flake f . Conftantine firft by law made the crime capital s. Under Conftantius and Conftans, Adulterers were burnt, or fewed in facks and thrown into the i'ea. Under Leo and Marcian, the penalty was abated to perpetual banifhment, or cutting oft' the nofe. Under Juftinian, a further mitigation was granted, at leaft in favour of the wife, who was only to be fcourged, lofe her dower, and be fhut up in a monaftery : after two years, the hufband was at liberty to take her back again ; if he refufed, fhe was fhaven, and made a nun for life : but it ftill remained death in the hufband h . The reafon alledgcd for this differencce is, that the woman is the weaker veffel. Matthieus declaims againft the emprefs Theodora, who is fuppofed to have been the caufe of this lav/, as well as of others procured in favour of the fex from that emperor "y — [ d Cell. Noct. Att. 1. 10. c. 23. Ridley, View of Civ. Law, p. 130. c Simon, Impot. Ccnjug. c. 9. th. 2. p. 16. feq. r Capitol, in Vit. Macrin. c. 12. Bibl. Univ. T. 25. p. 232. 1. 30. c. de Adulter. % Noodt, ubi fupra. Brijfon. ad Leg. Jul. de Adulter. p. 150. Bayk, Diet, in voc. Sengebers, n. B. h Nov. 117. c. 8. Nov. 134. c. io- Obferv. Halenf. T. 12. p. 218. 1 Matth. de Crimin. p. 377.]
Under Theodofius, women convicted of this crime were pu- nifhed after a very fmgular manner, viz. by a public con- flupration j being locked up in a narrow cell, and forced to admit all the men to their embraces that would offer them- felves. To this end, the gallants were to drefs themfelves on purpofe, having feveral little bells fattened to their cloaths, the tinkling of which gave notice to thofe without of every motion. This cultom was again abolifhed by the fame prince. Socrat. Hift. Ecclef. ]. ^. c. 18. Brantome, Mem. T. 3. p. 282. feq. Bayle, Diet. Crit. T. 1. p. 4.1 1. in voc, Babelot, Not. (C.)
In England, Adultery is reckoned a fpiritual offence, that is, cognizable by the fpiritual courts. The common law takes no farther notice of it, thai* to allow the party grieved an action of damages. This practice is often cenfured by fo- reigners, as making too light of a crime, the bad confc- quenccs of which, public as well as private, are fo great. But, perhaps this penalty, by civil action, is more wifely cal- culated to prevent the frequency of the offence, which ought to be the end of all laws, than a feverer punifliment. He that by a judgment of law is, according to circumftances, {tripped of great part of his fortune, thrown into prifon till he can pay it, or forced to fly his country, will, no doubt, in moil cafes, own, that he pays dearly for his amufement. It is much difputed, whether Adultery diftblves the bond of matrimony, and be a fufficicnt caufe of divorce, fo that the parties may marry again. k This was allowed in the antient church, ' and Is fall continued in the Greek, m as well as the Lutheran and Calvinift churches. Romanifts, however, dif- allow of it, and the council of Trent n even anathematized thofe who maintain it ; though the canon of anathematization was mitigated in deference to the republic of Venice, in fome of whole dominions, as Zant, Cephalonia, &c the contrary •ulage obtains. The difference arifes, in a great meafure, from this ; that in St. Matthew's gofpel, Chriit is reprefented as difallowing divorce in any cafe, except that of fornica- tion, (by which is to be unuerftood Adultery) whereas the other evangelilts, in reciting the fame tranfaction, omit the cxccptiun. The queftion then is, ttirl credetis ? which will you believe? Proteitants prefer Matthew, Papifts Mark, &c.
I he ccclefiaftical courts in England fo far agree with the Pa- pills, that they only grant a divorce a menfa b 3 thoro, in cafe of Adultery ; fo that a compleat divorce, to enable the parties to marry again, cannot be had without an aft of parliament. — [* Du Put, Bibl. Ecckf. T. 8. p. 16, 115, 127. feq. AcT. Enid. Lipf. an. 1698. p. 340. > Nouv. Rep. Lett.
J . 1. p. Sir. Act. Erud. Lipf. an. 1687. p. 377. m Jour, des Scav. T. 72. p. 614. n Nouv. Rep. Lett. T. 12. p, 93.]
By a council of Nantes, marriage was declared diffblved by Adultery, but the innocent party was not allowed fecond mar- riage °. In after times, leave was given the innocent party alone; and afterwards the fame was alfo allowed the criminal party p.— [° Act. Erud. Lipf. 1687. p. 377. p Brouer. dc Jur. Connub. ap. Jour, des Scav. T. 58. p. 20.]
Adultery is alfo ufed in antient cuftoms, for the punifliment, or fine impofed for that offence, or the privilege of profecuting for it. Spehn. Glofl". p. 19.
In which fenfe, Adulterium amounts to the fame with what the Saxons called Legerivita.
Adultery isfometimes ufed, in a more extenfive fenfe, for any (pecicsof impurity, or crime, againlt the virtue of chattity : and in this fenfe divines underftand the feventh commandment.
Adultery is alfo ufed, efpccially in Scripture, for idolatry, or departing from the true God, to the worfnip of a falfe one.
Adultery is alfo ufed, in ecclefiaffical writers, for a perfon's invading, or intruding into a bilhopric, during the former bifhop's life. The reafon of the appellation is, that a bifhop is fuppofed to contract a kind of fpiritual marriage with his church. Du Cange, Glofl". Lat.
The tranfiation of a bifhop from one fee to another was alfo reputed a fpecies of Adultery ; on the fuppofition of its being a kind of fecond marriage, which, in thofe days, waseftecmed a degree of Adultery. This conclufion was founded on that text of St. Paul, Let a bijbop be the hujband of one wife, by a forced conftruction of church for wife, and of bifhop for hufband. Du Cange, loc. cit.
Adultery is alfo ufed, in antient naturalifts, for the act of engrafting one plant upon another.
In which fenfe, Pliny fpeaks of the Adulteries of trees, ar- borum adulteria, which he reprefents as contrary to nature, and a piece of luxury, or needlefs refinement. Ouvr. des Scav. Juin. 1695. p. 458. Mem. de Trev. 1724. p. 2257.
ADVOCARIA, in middle age writers, a tax paid the lord, for his protection ; fometimes alfo called Salvamentum. Du Cange, Gloff. Lat. T. 1. p. 88.
ADVOCATE, Advocatus, {Cycl.)— Among the Romans, when a trial came on, the parties ufually invited all their friends, of any intereft or authority, to affift them with their countenance and protection, in order to render the judges, &c. favourable: thefe were the original Advocati. V.Ajcon. in Cicer. Verin. Calv. Lex. Jur.
Advocates took their firft origin from the jus patronatm. The patricians performed the office for their clients among the plebeians a . Upon entering an action, the parties frequently petitioned the przetor to grant them Advocati, which was done accordingly b . On this eccafion, Cicero c relates a pleafant anfwer of a Sicilian, who having a very rich, but filly and ignorant perfon affigned him for a patron, addreffed the praetor thus : ^uafo, pra:tor, adverjario meo da iflm
s: &
de ?nib
T. 4. p. 133. b Pitifc. Lex. Ant. Brijf. de Verb. Signif. voc. Advocati ones. c De Orat. 1. 2. Brijf. de Form. 1. 5.
P- 358.]
The Advocates were feated in rows, on equal benches ; and , when it came to any one's turn to fpeak, he ftood up ; though fome of the more diftinguifhed, we are told, had the privilege of fpeaking feated. Their ordinary habit was the toga ; whence we find them frequently diftinguifhed by the name Togati ; though, on fome occafions, they pleaded in the penula. Baxt. Glofl*. Ant. Rom. Pit'if loc. cit. We find great complaints of the ignorance of Advocates under Valens and Valentinian ; and of their tyranny and frauds under moft of the emperors : no names have been thought bad enough for them ; public robbers, hawks, hungry dogs, vultures in gowns, &c. V. Ammian. Marcellin. 1. 30. c. 4. Groning. Diff. de Naev. Corp. Jur. §. 9. Meibom. Prasf. ad Vogler. Introd. p. 125. Mifc. Lipf. T. 4. p. 209. Jour, des Scav. T. 38. p. 165.
'Tis controverted, whether an Advocate may lawfully meddle with the procuration, or foliciting of caufes. M. le Sure has a difcourfe exprefs to fhew he may, nay, and in fome cafes ought, without either depreciating the dignity of his office, or incroaching on that of" the proctors, Sec. e. gr. in behalf of his friends, relations ; but then he is to do it gratis. Vid. Jour, des Scav. T. 86. p. 55. feq.
'Tis difputed, whether an Advocate is obliged to defend all caufes committed to him d ; and whether, notwithstanding the oath he has taken, he may, in good confeience, under- take the defence of a caufe, which he knows to be bad c . Cicero maintains the affirmative, agreeably to the principles of the academics f . The like has alfo been folemnly decided by theftates of Friezeland, with this reftriction, that the Ad- vocate fay or do nothing, but at the exprefs requirement of the parties. But Papinian chofe rather to have his head cut off, than undertake the defence of Caracalla's murder of his bro- ther Geta. Schertzer has a difTertation exprefs on the point, wherein he maintains the negative againft Cicero *. — [ d Albert. Junfpr. Med. P. 1. p. 392. §. 2. c Act, Erud. Lipf. 1689. p. 304. f Vid. Nouv. Rep. Lett. T. 52. p. 311. s Dc Patrono mala? Caufse. V, Nouv. Liter. Germ. an. 1706. p.» 7 8.]
Advocate?
