The origin and development of the moral ideas

Among ourselves an act of incontinence assumes a different aspect if one of the parties, either the man or the woman, is married. Involving a breach of faith, adultery is an offence against him or her to whom faith is due, and at the same time the seducer commits an offence against the husband of the adulteress. But here again our own views are not universally shared.

Although it is hard to understand that the seducer could ever be regarded as guiltless, we are told that among a few peoples adultery is not held to be wrong;155 and Mr. Morgan states that among the Iroquois “punishment was inflicted upon the woman alone, who was supposed to be the only offender.”156 But these cases are certainly quite exceptional. In a savage tribe a seducer may be thankful if he escapes by paying to the injured husband the value of the bride or some other fine, or if the penalty is reduced to a flogging, to his head being shaved, his ears cut off, one of his eyes destroyed, or his legs speared. Very commonly he has to pay with his life. We have seen that even among many peoples who generally prohibit self-redress an adulterer may be put to death by the aggrieved husband, especially if he be caught flagrante delicto;157 and in other cases he may be subject to capital punishment, in the proper sense of the word.158 In Albania, even in our days, custom not only allows, but compels, the injured husband to kill the adulterer.159 Hebrew law enjoined the man who committed adultery with another man’s wife to be put to death;160 and Christian legislators followed the example.

Constantine celebrated his new zeal for the sacramental idea of marriage by establishing the punishment of death for the seducer;161 adultery was in point of heinousness assimilated to murder, idolatry, and sorcery.162 Various mediæval law-books punished the seducer with death;163 whilst in Scotland notorious and manifest adultery was made capital as late as 1563.164 This extreme severity, however, has been followed by extreme leniency. In Scotland, though adultery kept its place in the statute-book as a heinous and in some cases a capital crime, prosecution for it had ceased for many years before the time of Baron Hume;165 and in England it is no crime at all in the eyes of the law, only an ecclesiastical offence.

The punishment of the seducer often varies according to his rank, or according to that of the husband, or according to the relative rank of both, or according to the rank of the adulteress. Among the Monbuttu, if the guilty woman belongs to the royal household, the adulterer is put to death, whereas otherwise he is only compelled to pay an indemnity to the offended husband.166 Among the Ew̔e-speaking peoples of the Slave Coast the fine imposed for adultery depends on the rank of the injured husband;167 and the same principle is found in Anglo-Saxon law.168 Among the Bakongo, again, the penalties for adultery “vary from capital punishment to a trifling fine, according to the station of the offender or the district he lives in.”169 Drury tells us that in the country of Anterndroea in Madagascar, “if a man lies with another man’s wife who is superior to him, he forfeits thirty head of cattle besides beads and shovels a great number,” whereas “if the men are of an equal rank, then twenty beasts are the fine.”170 According to the Chinese Penal Code, a slave who is guilty of criminal intercourse with the wife or daughter of a freeman, shall be punished at the least one degree more severely than a freeman would have been under the same circumstances.171 In India a man of one of the first three castes who committed adultery with a Sûdra woman was banished, but a Sûdra who committed adultery with a woman of one of the first three castes suffered capital punishment;172 and an opinion is also quoted that for a Brâhmana who once was guilty of adultery with a married woman of equal

We find no difficulty in explaining all these facts. In early civilisation a husband has often extreme rights over his wife. The seducer encroaches upon a right of which he is most jealous, and with regard to which his passions are most easily inflamed. Adultery is regarded as an illegitimate appropriation of the exclusive claims which the husband has acquired by the purchase of his wife, as an offence against property.175 It is said in the ‘Laws of Manu’ that “seed must not be sown by any man on that which belongs to another.”176 How closely the seducer is associated with a thief is illustrated by the fact that among some peoples he is punished as such, having his hands, or one of them, cut off.177 Yet even among savages the offence is something more than a mere infringement of the right of ownership. The Kurile Islanders, says Krasheninnikoff, have an extraordinary way of punishing adultery: the husband of the adulteress challenges the adulterer to a combat. The result is generally the death of both the combatants; but it is held to be “as great dishonour to refuse this combat as to refuse an invitation to a duel among the people of Europe.”178 The passion of jealousy, the feeling of ownership, and the sense of honour, thus combine to make the seducer’s act an offence, and often a heinous offence, in the eyes of custom or law; and for the same reasons as in other offences the magnitude of guilt is here also influenced by the rank of the parties concerned.

Modern legislation, on the other hand, does not to the same extent as early law and custom allow a man to give free vent to his angry passion; it regards the dishonour of the aggrieved husband as a matter of too private a character to be publicly avenged; and the faithfulness which a wife owes her husband is no longer connected with any idea of ownership. Moreover, the severity of earlier European laws against adultery was closely connected with Christianity’s abhorrence of all kinds of irregular sexual intercourse; and secular legislation has more and more freed itself from the bondage of religious doctrine.

Among some savage peoples it is the seducer only who suffers, whilst the unfaithful wife escapes without punishment.179 Jealousy, in the first place, turns against the rival, and the seducer is the dishonourer and the thief. But, as a general rule, the unfaithful wife is also looked upon as an offender, and the punishment falls on both. She is discarded, beaten, or ill-treated in some way or other, and not infrequently she is killed. Often, too, she is disfigured by her enraged husband, so that no man may fall in love with her ever after.180 Indeed, so strong is the idea that a wife belongs exclusively to her husband, that among several peoples she has to die with him;181 and frequently a widow is prohibited from remarrying either for ever or for a certain period after the husband’s death.182 In ancient Peru widows generally continued to live single, as “this virtue was much commended in their laws and ordinances.”183 Nor is it in China considered proper for a woman to contract a second marriage after her husband’s death, and a lady of rank, by doing so, exposes herself to a penalty of eighty blows.184 “As a faithful minister does not serve two lords, neither may a faithful woman marry a second husband”—this is to the Chinese a principle of life, a maxim generally received as gospel.185 Among so-called Aryan peoples the ancient custom which ordained sacrifice of widows survived in the prohibitions issued against their marrying a second time.186 Even now the bare mention of a second marriage for a Hindu woman would be considered the greatest of insults, and, if she married

again, “she would be hunted out of society, and no decent person would venture at any time to have the slightest intercourse with her.”187 In Greece188 and Rome189 a widow’s remarriage was regarded as an insult to her former husband; and so it is still regarded among the Southern Slavs.190 The early Christians, especially the Montanists and Novatians, strongly disapproved of second marriages by persons of either sex;191 a second marriage was described by them as a “kind of fornication,”192 or as a “specious adultery.”193 It was looked upon as a manifest sign of incontinence, and also as inconsistent with the doctrine that marriage is an emblem of the union of Christ with the Church.194