Adultery (some form of the verb נָאִŠ, naaph', μοιχεία), commonly denotes the sexual intercourse of a married woman with any other man than her husband, or of a married man with any other woman than his wife. SEE MARRIAGE.
I. Nature of the Crime. —
1. Jewish. — Among the Hebrews, as in other Oriental nations, adultery was the act whereby any married man was exposed to the risk of having a spurious offspring imposed upon him. An adulterer was, therefore, any man who had illicit intercourse with a married or betrothed woman; and an adulteress was a betrothed or married woman who had intercourse with any other man than her husband. An intercourse between a married man and an unmarried woman was simply fornication — a great sin, but not, like adultery, involving the contingency of polluting a descent, of turning aside an inheritance, or of imposing upon a man a charge which did not belong to him. Adultery was thus considered a great social wrong, against which society protected itself by much severer penalties than attended an unchaste act not involving the same contingencies.
This Oriental limitation of adultery is intimately connected with the existence of polygamy. If a Jew associated with a woman who was not his wife, his concubine, or his slave, he was guilty of unchastity, but committed no offense which gave a wife reason to complain that her legal rights had been infringed. If, however, the woman with whom he associated was the wife of another, he was guilty of adultery — not by infringing his own marriage covenant, but by causing a breach of that which existed between this woman and her husband (Michaelis, Mosaisches Recht, art. 259; Jahn's Arcaologie, Th. 1, b. 2, § 183). SEE POLYGAMY.
2. Roman. — It seems that the Roman law made the same important distinction with the Hebrew between the infidelity of the husband and of the wife, by defining adultery to be the violation of another man's bed (violatio tori alieni); so that the infidelity of the husband could not constitute the offense. The more ancient laws of Rome, which were very severe against the offense of the wife, were silent as to that of the husband (Smith's Dict. of Class. Antiq.). See WIFE.
3. Spiritual. — Adultery, in the symbolical language of the Old Testament, means idolatry and apostasy from the worship of the true God (Jer 3:8-9; Eze 16:32; Eze 23:37; also Re 2:22). Hence an adulteress meant an apostate Church or city, particularly "the daughter of Jerusalem," or the Jewish Church and people (Isa 1:21; Jer 3:6,8-9; Eze 23:7). This figure resulted from the primary one, which describes the connection between God and his separated people as a marriage between him and them (Jer 2:2; Jer 3:14; Jer 13:27; Jer 31:32; Ho 8:9). By an application of the same figure, "an adulterous generation" (Mt 12:39; Mt 16:4; Mr 8:38) means a faithless and impious generation. SEE FORNICATION.
II. Trial of Adultery. — The Mosaic trial of the suspected wife by the bitter water, called the water of jealousy (Nu 5:11-31) — the only ordeal in use among the Israelites, or sanctioned by their law — is to be regarded as an attempt to mitigate and bring under legal control an old custom which could not be entirely abrogated. The forms of Hebrew justice all tended to limit the application of this test.
(1.) By prescribing certain facts presumptive of guilt, to be established on oath by two witnesses, or a preponderating but not conclusive testimony to the fact of the woman's adultery.
(2.) By technical rules of evidence which made proof of those presumptive facts difficult (see the Talmudical tract Sotah, 6, 2-5).
(3.) By exempting certain large classes of women (all, indeed, except a pure Israelitess married to a pure Israelite, and some even of them) from the liability.
(4.) By providing that the trial could only be before the great Sanhedrim (Sotah, 1, 4).
(5.) By investing it with a ceremonial at once humiliating and intimidating, yet which still harmonized with the spirit of the whole ordeal as recorded in Numbers 5; but,
(6.) above all, by the conventional and even mercenary light in which the nuptial contract was latterly regarded. (See Simeon, Works, 2, 1.)
When adultery ceased to be capital, as no doubt it did, and divorce became a matter of mere convenience, it would be absurd to suppose that this trial was continued; and when adultery became common, as the Jews themselves confess, it would have been impious to expect the miracle which it supposed. If ever the Sanhedrim were driven by force of circumstances to adopt this trial, no doubt every effort was used, nay, was prescribed (Sotah, 1, 5, 6), to overawe the culprit and induce confession. Nay, even if she submitted to the trial, and was really guilty, some rabbis held that the effect on her might be suspended for years through the merit of some good deed (Sotah, 3, 4-6). Besides, moreover, the intimidation of the woman, the man was likely to feel the public exposure of his suspicions odious and repulsive. Divorce was a ready and quiet remedy; and the only question was, whether the divorce should carry the dowry and the property which she had brought, which was decided by the slight or grave character of the suspicions against her (Sotah, 6, 1; Gemara, Kethuboth, 7, 6; Ugolino, Uxor Heb. c. 7). If the husband were incapable, through derangement, imprisonment, etc., of acting on his own behalf in the matter, the Sanhedrim proceeded in his name as concerned the dowry, but not as concerned the trial by the water of jealousy (Sotah, 4, 6). SEE JEALOUSY.
This ordeal was probably of the kind which we still find in Western Africa, the trial by red water, as it is called, although varying among different nations in minute particulars, and a comparison of the two may suggest the real points of the evil which the law on Moses was designed to rectify, and the real advantages which it was calculated to secure. This ordeal is in some tribes confined to the case of adultery, but in others it is used in all crimes. In Africa the drink, in cases of proper ordeal, is poisonous, and calculated to produce the effects which the oath imprecates; whereas the "water of jealousy," however unpleasant, was prepared in a prescribed manner, with ingredients known to all to be perfectly innocuous. It could not, therefore, injure the innocent; and its action upon the guilty must have resulted from the consciousness of having committed a horrible perjury, which crime, when the oath was so solemnly confirmed by the draught, and attended by such awful imprecations, was believed to be visitable with immediate death from heaven. On the Gold Coast the ordinary oath-drink (not poisonous) is used as a confirmation of all oaths, not only oaths of purgation, but of accusation, or even of obligation. In all cases it is accompanied with an imprecation that the fetish may destroy them if they speak untruly, or do not perform the terms of their obligation; and it is firmly believed that no one who is perjured under this form of oath will live an hour (Villault; Bosman). Doubtless the impression with respect to this mere oath-drink is derived from observation of the effects attending the drink used in the actual ordeal; and the popular opinion regards such an oath as of so solemn a nature that perjury is sure to bring down immediate punishment. The red water, as an ordeal, is confined to crimes of the worst class. These are murder, adultery, witchcraft. Perhaps this arises less from choice than from the fact that such crimes are not only the highest, but are the least capable of that direct proof for which the ordeal is intended as a substitute. A party is accused: if he denies the crime, he is required to drink the red water, and, on refusing, is deemed guilty of the offense. The trial is so much dreaded that innocent persons often confess themselves guilty in order to avoid it. And yet the immediate effect is supposed to result less from the water itself than from the terrible oath with which it is drunk. So the person who drinks the red water invokes the fetish to destroy him if he is really guilty of the offense with which he is charged. The drink is made by an infusion in water of pieces of a certain tree or of herbs, and, if rightly prepared, the only chance of escape is the rejection of it by the stomach, in which case the party is deemed innocent, as he also is if, being retained, it has no sensible effect, which can only be the case when the priests, who have the management of the matter, are influenced by private considerations or by reference to the probabilities of the case, to prepare the draught with a view to acquittal. The imprecations upon the accused if he be guilty are repeated in an awful manner by the priests, and the effect is watched very keenly. If the party seems affected by the draught, like one intoxicated, and begins to foam at the mouth, he is considered undoubtedly guilty, and is slain on the spot; or else he is left to the operation of the poisonous draught, which causes the belly to swell and burst, and occasions death. (Barhot, p. 126; Bosman, p. 148; Artus, in De Bry, 6:62; Villault, p. 191; Corry's Windward Coast, p. 71; Church Missionary Paper, No. 17; Davis's Journal, p. 24.) SEE POISON.
Traces of a similar ancient custom may be produced from other quarters. Hesiod (Theogon. 755-95) reports that when a falsehood had been told by any of the gods, Jupiter was wont to send Iris to bring some water out of the river Styx in a golden vessel; upon this an oath was taken, and if the god swore falsely he remained for a whole year without life or motion.
There was an ancient temple in Sicily, in which were two very deep basins, called Delli, always full of hot and sulfurous water, but never running over. Here the more solemn oaths were taken; and perjuries were immediately punished most severely (Diod. Sic. 11:67). This is also mentioned by Aristotle, Silius Italicus, Virgil, and Macrobius; and from the first it would seem that the oath was written upon a ticket and cast into the water. The ticket floated if the oath was true, and sunk if it was false. In the latter case the punishment which followed was considered as an act of divine vengeance (q.v.). SEE OATH.
The trial for suspected adultery by the bitter water amounted to this, that a woman suspected of adultery by her husband was allowed to repel the charge by a public oath of purgation, which oath was designedly made so solemn in itself, and was attended by such awful circumstances, that it was in the highest degree unlikely that it would be dared by any woman not supported by the consciousness of innocence. And the fact that no instance of the actual application of the ordeal occurs in Scripture affords some countenance to the assertion of the Jewish writers, that the trial was so much dreaded by the women that those who were really guilty generally avoided it by confession; and that thus the trial itself early fell into disuse. And if this mode of trial was only tolerated by Moses, the ultimate neglect of it must have been desired and intended by him. In later times, indeed, it was disputed in the Jewish schools, whether the husband was bound to prosecute his wife to this extremity, or whether it was not lawful for him to connive at and pardon her act, if he were so inclined. There were some who held that he was bound by his duty to prosecute, while others maintained that it was left to his pleasure (Sotah, 16, 2). From the same source we learn that this form of trial was finally abrogated about forty years before the destruction of Jerusalem (see Wagenseil's Sota, containing a copious commentary, with full illustrations of this subject, from rabbinical sources, Altdorf, 1674). The reason assigned is, that the men themselves were at that time generally adulterous, and that God would not fulfill the imprecations of the ordeal oath upon the wife while the husband was guilty of the same crime (Joh 8:1-8). SEE ORDEAL.
III. Penalties of Adultery. —
1. Jewish. — By excluding from the name and punishment of adultery the offense which did not involve the enormous wrong of imposing upon a man a supposititious offspring, in a nation where the succession to landed property went entirely by birth, so that a father could not by his testament alienate it from any one who was regarded as his son, the law was enabled, with less severity than if the inferior offense had been included, to punish the crime with death. It is still so punished wherever the practice of polygamy has similarly operated in limiting the crime — not, perhaps, that the law expressly assigns that punishment, but it recognises the right of the injured party to inflict it, and, in fact, leaves it, in a great degree, in his hands. Now death was the punishment of adultery before the time of Moses; and, if he had assigned a less punishment, his law would have been inoperative, for private vengeance, sanctioned by usage, would still have inflicted death. But by adopting it into the law, those restrictions were imposed upon its operation: which necessarily arise when the calm inquiry of public justice is substituted for the impulsive action of excited hands. Thus death would be less frequently inflicted; and that this effect followed seems to be implied in the fact that the whole Biblical history offers no example of capital punishment for the crime. Indeed, Lightfoot goes farther, and remarks, "I do not remember that I have anywhere, in the Jewish Pandect, met with an example of a wife punished for adultery with death. There is mention (in the Talmud, Sanhed. 242) of the daughter of a certain priest burned for committing fornication in her father's house; but she was not married" (Hor. Hebr. ad Mt 19:8). Eventually, divorce superseded all other punishment. There are, indeed, some grounds for thinking that this had happened before the time of Christ, and we throw it out as a matter of inquiry, whether the Scribes and Pharisees, in attempting to entrap Christ in the matter of the woman taken in adultery (see infra), did not intend to put him between the alternatives of either declaring for the revival of a practice which had already become obsolete, but which the law was supposed to command, or of giving his sanction to the apparent infraction of the law, which the substitution of divorce involved (Joh 8:1-11). In Mt 5:32, Christ seems to assume that the practice of divorce for adultery already existed. In later times it certainly did; and Jews who were averse to part with their adulterous wives were compelled to put them away (Maimon. in Gerushin, c. 2). In the passage just referred to our Lord does not appear to render divorce compulsory, even in case of adultery; he only permits it in that case alone, by forbidding it in every other. SEE DIVORCE.
In the law which assigns the punishment of death to adultery (Le 20:10), the mode in which that punishment should be inflicted is not specified, because it was known from custom. It was not, however, strangulation, as the Talmudists contend, but stoning, as we may learn from various passages of Scripture (e.g. Eze 16:38,40; Joh 8:5); and as, in fact, Moses himself testifies, if we compare Ex 31:14; Ex 35:2, with Nu 15:35-36. If the adulteress was a slave, the guilty parties were both scourged with a leathern whip, the number of blows not exceeding forty. In this instance the adulterer, in addition to the scourging, was subject to the further penalty of bringing a trespass offering (a ram) to the door of the tabernacle, to be offered in his behalf by the priest (Le 19:20-22). Those who wish to enter into the reasons of this distinction in favor of the slave may consult Michaelis (Mosaisches Recht, art. 264). We only observe that the Moslem law, derived from old Arabian usage, only inflicts upon a slave, for this and other crimes, half the punishment incurred by a free person. SEE SLAVERY, The system of inheritances, on which the polity of Moses was based, was threatened with confusion by the doubtful offspring caused by this crime, and this secured popular sympathy on the side of morality until a far advanced stage of corruption was reached. Yet, from stoning being made the penalty, we may suppose that the exclusion of private revenge was intended. It is probable that, when that territorial basis of polity passed away — as it did after the captivity — and when, owing to Gentile example, the marriage tie became a looser bond of union, public feeling in regard to adultery changed, and the penalty of death was seldom or never inflicted. Thus, in the case of the woman brought under our Lord's notice (John 8), it is likely that no one then thought of stoning her, in fact, but there remained the written law ready for the purpose of the caviller. It is likely, also, that a divorce in which the adulteress lost her dower SEE DOWRY, and rights of maintenance, etc. (Gemara, Kethuboth, cap. 7:6), was the usual remedy suggested by a wish to avoid scandal and the excitement of commiseration for crime. The word παραδειγματίσαι ("make a public example," Mt 1:19) probably means to bring the case before the local Sanhedrim, which was the usual course, SEE TRIAL, but which Joseph did not propose to take, preferring repudiation (Buxtorf, De Spons. et Divort. 3, 1-4), because that could be managed privately (Xciapa).
2. Roman. — As the Roman civil law defined adultery to be "the violation of another man's bed," the husband's incontinence could not constitute the offense. The punishment was left to the discretion of the husband and parents of the adulteress, who, under the old law, could be put to death. The most usual mode of taking revenge against the man offending was by mutilating, castrating, or cutting off the nose or ears. The punishment assigned by the lex Julia de adulteris, instituted by Augustus, was banishment, or a heavy fine. It was decreed by Antoninus, that to sustain a charge of adultery against a wife, the husband who brought it must be innocent himself. The offense was not capital until made so by Constantine, in imitation of the Jewish law. Under Macrinus, adulterers were burnt at the stake. Under Constantius and Constans they were burnt, or sewed up in sacks and thrown into the sea. But the punishment was mitigated, under Leo and Marcian, to perpetual banishment or cutting off the nose; and, under Justinian, the wife was only to be scourged, lose her dower, and be shut up in a monastery; or, at the expiration of two years, the husband might take her back again; if he refused, she was shaven, and made a nun for life. Theodosius instituted the shocking practice of public constupration, which, however, he soon abolished.
3. Other ancient Nations. — The punishment of cutting off the nose brings to mind the passage in which the prophet Ezekiel (23:25) after, in the name of the Lord, reproving Israel and Judah for their adulteries (i.e. idolatries) with the Assyrians and Chaldeans, threatens the punishment, "they shall take away thy nose and thy ears," which Jerome states was actually the punishment of adultery in those nations. One or both of these mutilations, most generally that of the nose, were also inflicted by other nations, as the Persians and Egyptians, and even the Romans; but we suspect that among the former, as with the latter, it was less a judicial punishment than a summary infliction by the aggrieved party (AEn. 6, 496). It would also seem that these mutilations were more usually inflicted on the male than the female adulterer. In Egypt, however, cutting off the nose was the female punishment, and the man was beaten terribly with rods (Diod. Sic. 1:89, 90). The respect with which the conjugal union was treated in that country in the earliest times is manifested in the history of Abraham (Ge 12:19). SEE HAREM.
The Greeks put out the eyes of the adulterers. In Crete adulterers were covered with wool as an emblem of their effeminacy, and carried in that dress to the magistrate's house, where a fine was imposed on them, and they were deprived of all their privileges and their share in public business. SEE PUNISHMENT.
4. Modern. — Among savage nations at the present day the penalties of adultery are generally severe. The Mohammedan code pronounces it a capital offense. It is one of the three crimes which the prophet directs to be expiated by the blood of a Mussulman. In some parts of India it is said that any woman may prostitute herself for an elephant, and it is reputed no small glory to have been rated so high. Adultery is stated to be extremely frequent in Ceylon, although punishable with death. Among the Japanese and some other nations it is punishable only in the woman. On the contrary, in the Marian Islands, the woman is not punishable, but the man is, and the wife and her relations waste his lands, burn him out of his house, etc. Among the Chinese it is said that adultery is not capital; parents will even make a contract with the future husbands of their daughters to allow them the indulgence.
In Portugal an adulteress was condemned to the flames; but the sentence was seldom executed. By the ancient laws of France this crime was punishable with death. Before the Revolution the adulteress was usually condemned to a convent, where the husband could visit her during two years, and take her back if he saw fit. If he did not choose to receive her again by the expiration of this time, her hair was shaven, she took the habit of the convent, and remained there for life. Where the parties were poor she might be shut up in a hospital instead of a convent. The Code Napoleon does not allow the husband to proceed against his wife in case he has been condemned for the same crime. The wife can bring an action against the husband only in case he has introduced his paramour into the house where she resides. An adulteress can be imprisoned from three months to two years, but the husband may prevent the execution of the sentence by taking her back. Her partner in guilt is liable to the same punishment. Castration was the punishment in Spain. In Poland, previous to the establishment of Christianity, the criminal was carried to the market- place, and there fastened by the testicles with a nail; a razor was laid within his reach, and he had the option to execute justice on himself or remain where he was and die. The Saxons consigned the adulteress to the flames, and over her ashes erected a gibbet, on which her paramour was hanged. King Edmund the Saxon ordered adultery to be punished in the same manner as homicide; and Canute the Dane ordered that the man should be banished, and the woman have her ears and nose cut off. In the time of Henry I it was punished with the loss of the eyes and genitals. Adultery is in England considered as a spiritual offense, cognizable by the spiritual courts, where it is punished by fine and penance. The common law allows the party aggrieved only an action and damages. In the United States the punishment of adultery has varied materially at different times, and differs according to the statutes of the several states. Adultery is, moreover, very seldom punished criminally in the United States.
5. Ecclesiastical. — Constantine qualified adultery as a sacrilege which was to be punished with death. His successors went farther, and placed it on a level with parricide. But the definition of adultery remained, in general, confined to the infidelity of the wife and her accomplice, and for a long time the Church did not succeed in establishing with the Romanic nations the conviction that the infidelity of either party deserved an equal punishment. This principle was, on the other hand, carried through in the codes of most of the Christian Germanic States. The penalty was in all cases very severe, and, if there were aggravating circumstances, death. Later, especially since the eighteenth century, the penalty was reduced in all legislations to imprisonment. The canon law punished both adulterer and adulteress with excommunication, and a clergyman who was an accomplice with imprisonment for lifetime. Protestant churches, which are not impeded in the exercise of their jurisdiction by a connection with the state, generally exclude persons guilty of adultery from church membership; while state churches are mostly prevented, in this case as in others, from taking any measures. SEE DECALOGUE.
According to the canons of the Roman Church a clerk guilty of adultery was punishable by deposition and perpetual imprisonment in a monastery. Since the Reformation clerks have been deprived of their benefices for the sin of adultery. (See Stillingfleet, Eccl. Cases, p. 82.) SEE CELIBACY.
In the opinion of the Oriental Churches the marriage tie is broken by the sin of adultery, so that the husband of an adulterous wife may marry again during her lifetime. This opinion is founded on Mt 19:9. The contrary doctrine is taught by the Western Churches (Augustine, lib. 2, de Adult. Conjug. cap. 13). See Tebbs, Scripture Doctrine of Adultery and Divorce (Lond. 1822, 8vo). SEE MATRIMONY.
IV. Adulteress in the Gospel. — A remarkable example under the Jewish law in cases of this offense occurs in the account of the "woman taken in adultery" (γυνὴ ἐν μοιχείᾷ κατειλημμένη), given by one of the evangelists (Joh 7:53, to 8:11), from which some have even erroneously inferred that our Savior regarded her act as venial — a view that is ably refuted by Paley (Moral Philosophy, vol. 1). It is true, great doubts exist as to the genuineness of the entire passage (see the dissertations of Dettmers, Vindiciae αὐθεντίας, etc., Frnkft. ad V. 1793; Stiludlin, Pericope de adultera veritas et authentia defenditur, Gotting. 1806), as it is omitted in very many of the early MSS. and versions, and greatly corrupted in others (see Tischendorf, 7th ed. in loc.), and rejected by numerous critics of note; yet, as it is retained in some good texts and editions, and as its presence cannot be explained by ascetic or monkish predilections (since it is not only without a trace of the rigor of these, but appears so lax in its doctrine as to involve serious difficulty in its adjustment to the ethics of all who could have been the authors of the interpolation), it seems to present strong claims to, being true history, if not entitled to its place in the evangelical narrative (see Tregelles, Account of the Text of the N.T. p. 236-242). See the arguments and advocates on both sides in Kuinol, Comment. in loc. SEE JOHN.
From this narrative, many have supposed that the woman's accusers were themselves guilty of the crime (at that time very common, Mr 8:38; comp. Mt 19:10) which they alleged against her; and as it was not just to receive the accusations of those who are guilty of the evil of which they accuse others, our Lord dismissed them with the most obvious propriety. But it seems enough to suppose that the consciences of these witnesses accused them of such crimes as restrained their hands from punishing the adulteress, who, perhaps, was guilty, in this instance, of a less enormous sin than they were conscious of, though of another kind. It may be, too, that their malevolent design to entrap our Lord was appealed to by him, and was no slight cause of their confusion, if they wished to found a charge which might affect his life. Their intended murder was worse than the woman's adultery; especially if, as there is reason to believe, the woman had suffered some violence. See STONING
See Lesle, De historia adultere (Fkft. ad V. 1662); Osiander, De historia adultery, non adulterina (Tubing. 1751); Scherzer, De historia adultere (Lips. 1682, 1727); Dieck, Geschichte v. der Ehebrecherin vom jur. Standpunkte, in Ullmann's Stud. u. Krit. 1832, p. 791822; Hug, De conjugii christ. vinculo indissolubili (Frib. 1816), p. 22 sq.; Schulthess, Ueb. d. Perikope v. d. Ehebrecherin, in Winer's N. Krit. Journ. v. 257314; Heumann, Interpretatio γεωγραφίας Christi (Gotting. 1738); Hilliger, De scriptione Christi in terram (Viteb. 1672). Compare Lampe, Comment. in loc. also Alford, Olshausen, Licke, Meyer, and Tholuck, in loc. For further illustration, consult Saurin, Discours, 10, 40; Pitman, Lect. p. 407; Bragg, Miracles, 2, 227; Crit. Sac. Thes. Nov. 2, 494; Bp. Horne, Disc. 3, 335; Enfield, Sermons, 3, 202; Simeon, Works, 13, 429; Spencer, Serm. p. 188; Moysey, Serm. p. 249; Williams, Serm. 2, 266. SEE WEDLOCK.