Adultery

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It is the purpose of this article to consider adultery with reference only to morality. The study of it, as more particularly affecting the bond of marriage, will be found under the head ofDIVORCE. The discussion of adultery may be ordered under three general divisions:

I. Nature of adultery;
II. Its guilt;
III. Obligations entailed upon the offenders.

Nature of adultery

Adultery is defined as carnal connection between a marriedperson and one unmarried, or between a marriedperson and the spouse of another. It is seen to differ from fornication in that it supposes the marriage of one or both of the agents. Nor is itnecessary that this marriage be already consummated; it need only be whattheologians callmatrimonium ratum. Sexual commerce with one engaged to another does not, it is most generally held, constitute adultery. Again, adultery, as the definition declares, is committed in carnal intercourse. Nevertheless immodest actions indulged in between a marriedperson and another not the lawful spouse, while not of the same degree of guilt, are of the same character of malice as adultery (Sanchez, De Mat., L. IX. Disp. XLVI, n. 17). It must be added, however, thatSt. Alphonsus Liguori, with mosttheologians, declares that even between lawful man and wife adultery is committed when their intercourse takes the form of sodomy (S. Liguori L. III, n. 446).

Among savages generally adultery is rigorously condemned and punished. But it is condemned and punished only as a violation of the husband'srights. Among such peoples the wife is commonly reckoned as the property of her spouse, and adultery, therefore, is identified with theft. But it is theft of an aggravated kind, as the property which it would spoliate is more highly appraised than other chattels. So it is that in some parts of Africa the seducer is punished with the loss of one or both hands, as one who has perpetrated a robbery upon the husband (Reade, Savage Africa, p. 61). But it is not the seducer alone that suffers. Dire penalties are visited upon the offending wife by her wronged spouse; in many instances she is made to endure such a bodily mutilation as will, in the mind of the aggrieved husband, prevent her being thereafter a temptation to other men (Schoolcraft, Historical and Statistical Information Respecting the History, Condition and Prospects of the Indian Tribes of the United States, I, 236; V, 683, 684, 686; also H.H. Bancroft, The Native Races of the Pacific States of North America, I, 514). If, however, the wronged husband could visit swift and terrible retribution upon the adulterous wife, the latter was allowed no cause against the unfaithful husband; and this discrimination found in the practices of savage peoples is moreover set forth in nearly all ancient codes of law. The Laws of Manu are striking on this point. In ancient India, "though destitute of virtue or seeking pleasure elsewhere, or devoid of good qualities, yet a husband must be constantlyworshipped as a god by a faithful wife"; on the other, hand, "if a wife, proud of the greatness of her relatives or [her own] excellence, violates theduty which she owes to her lord, the king shall cause her to be devoured by dogs in a place frequented by many" (Laws of Manu, V, 154; VIII, 371).

In the Graeco-Roman world we find stringentlaws against adultery, yet almost throughout they discriminate against the wife. The ancientidea that the wife was theproperty of the husband is still operative. The lending of wives practiced among some savages was, as Plutarch tells us, encouraged also by Lycurgus, though, be it observed, from a motive other than that which actuated the savages (Plutarch, Lycurgus, XXIX). The recognized license of the Greek husband may be seen in the following passage of the Oration against Neaera, the author of which is uncertain, though it has been attributed to Demosthenes: "We keep mistresses for our pleasures,concubines for constant attendance, and wives to bear us legitimate children, and to be our faithful housekeepers. Yet, because of the wrong done to the husband only, the Athenian lawgiver Solon, allowed any man to kill an, adulterer whom he had taken in the act" (Plutarch, Solon).

In the earlyRoman Law thejus tori belonged to the husband. There was, therefore, no such thing as the crime of adultery on the part of a husband towards his wife. Moreover, this crime was not committed unless one of the parties was a marriedwoman (Dig., XLVIII, ad leg. Jul.). That the Roman husband often took advantage of his legal immunity is well known. Thus we are told by the historian Spartianus that Verus, the colleague ofMarcus Aurelius, did not hesitate to declare to his reproaching wife: "Uxor enim dignitatis nomen est, non voluptatis." (Verus, V). Later on in Roman history, as the late William E.H. Lecky has shown theidea that the husband owed a fidelity like that demanded of the wife must have gained ground at least in theory. This Lecky gathers from the legal maxim of Ulpian: "It seems most unfair for a man to require from a wife the chastity he does not himself practice" (Cod. Just., Digest, XLVIII, 5-13; Lecky, History ofEuropean Morals, II, 313).

In theMosaic Law, as in the oldRoman Law, adultery meant only the carnal intercourse of a wife with a man who was not her lawful husband. The intercourse of a married man with a singlewoman was not accounted adultery, but fornication. The penal statute on the subject, inLeviticus 20:10, makes this clear: "If any man commit adultery with the wife of another and defile his neighbor's wife let them beput to death both the adulterer and the adulteress." (See alsoDeuteronomy 22:22) This was quite in keeping with the prevailing practice ofpolygamy among theIsraelites. In theChristian law this discrimination against the wife is emphatically repudiated. In thelaw ofJesus Christ regarding marriage the unfaithful husband loses his ancient immunity (Matthew 19:3-13). Theobligation of mutual fidelity, incumbent upon husband as well as wife, is moreover implied in the notion of theChristian sacrament, in which is symbolized the ineffable and lasting union of the Heavenly Bridegroom and His unspotted Bride, theChurch,St. Paul insists with emphasis upon theduty of equal mutual fidelity in both the marital partners (1 Corinthians 7:4); and several of theFathers of the Church, asTertullian (De Monogamia, cix), Lactantius (Divin. Instit., LVI, c. xxiii),St. Gregory Nazianzen (Oratio, xxxi), andSt. Augustine (De Bono Conjugati, n. 4), have given clear expression to the sameidea. But the notion thatobligations of fidelity rested upon the husband the same as upon the wife is one that has not always found practical exemplification in thelaws ofChristian states. Despite the protests of Mr. Gladstone, the English Parliament passed, in 1857, a law by which a husband may obtain absolutedivorce on account of simple adultery in his wife, while the latter can be freed from her adulterous husband only when his infidelity has been attended with such cruelty "as would have entitled her to adivorcea mensâ et toro." The same discrimination against the wife is found in some of our early New England colonies. Thus, inMassachusetts the adultery of the husband, unlike that of the wife, was not sufficient ground fordivorce. And the same most likely was the case in Plymouth Plantation (Howard, A History of Matrimonial Institutions, II, 331-351). At present, in our States there is not this discrimination, butdivorce, when granted on the ground of adultery, is obtainable by the wife just as by the husband.

Guilt of adultery

We have referred to the severe punishment meted out to the adulterouswoman and her seducer among savages. It is clear, however, that the severity of these penalties did not find their sanction in anything like an adequateidea of the guilt of this crime. In contrast with such rigour is the lofty benignity ofJesus Christ towards the one guilty of adultery (John 8:3, 4), a contrast as marked as that which exists between theChristian doctrine regarding the malice of thissin and theidea of its guilt which prevailed before theChristian era. In the earlydiscipline of the Church we see reflected a sense of the enormity of adultery, though it must be admitted that the severity of thislegislation, such as that, for instance, which we find in canons 8 and 47 of the Council of Elvira (c. 300), must be largely accounted for by the general harshness of the times. Considering now the act in itself, adultery, forbidden by the sixth commandment, has in it a twofold malice, In common with fornication it violates chastity, and it is, besides, asin againstjustice. Drawing a distinction between these two elements of malice, certain casuists, early in the seventeenth century, declared that intercourse with a marriedwoman, when her husband gave his consent, constituted not thesin of adultery, but of fornication. It would, therefore, they contended, be sufficient for the penitent, having committed this act, to accuse himself of the lattersin only in confession. At the instance of theArchbishop ofMechlin, the Academy of Louvain, in the year 1653, censured asfalse anderroneous the proposition: "Copula cum conjugata consentiente marito non est adulterium, adeoque sufficit in confessione dicere se esse fornicatum." The same proposition was condemned byInnocent XI, 2 March, 1679 (Denzinger, Enchir., p. 222, 5th ed.). Thefalsity of thisdoctrine appears from the very etymology of the word adultery, for the term signifies the going into the bed of another (St. Thom., II-II:154:8). And the consent of the husband is unavailing to strip the act by which another has intercourse with his wife of this essential characterization. Again, the right of the husband over his wife is qualified by the good of human generation. This good regards not only the birth, but the nourishment andeducation, of offspring, and its postulates cannot in any way be affected by the consent ofparents. Such consent, therefore, as subversive of the good of human generation, becomes juridically void. It cannot, therefore, be adduced as a ground for thedoctrine set forth in the condemned proposition above mentioned. For the legal axiom that an injury is not done to one who knows and wills it (scienti et volenti non fit injuria) finds no place when the consent is thus vitiated.

But it may be contended that the consent of the husband lessens the enormity of adultery to the extent that whereas, ordinarily, there is a double malice — that against the good of human generation and that against the privaterights of the husband with the consent of the latter there is only the first-named malice; hence, one having had carnal intercourse with another's wife, her husband consenting, should in confession declare the circumstance of this permission that he may not accuse himself of that of which he is not guilty: In answer to this, it must be said that the injury offered the husband in adultery is done him not as a private individual but as a member of a maritalsociety, upon whom it is incumbent to consult the good of the prospective child. As such, his consent does not avail to take away the malice of which it is question. Whence it follows that there is noobligation to reveal the fact of his consent in the case we have supposed (Viva, Damnatae Theses, 318). And here it may be observed that the consenting husband may be understood to have renounced his right to any restitution.

The question has been discussed, whether in adultery committed with aChristian, as distinct from that committed with aPagan, there would be special malice against the sacrament constituting asin against religion. Though sometheologians have held that such would be the case, it should be said, with Viva, that the fact that thesinfulperson was aChristian would create an aggravating circumstance only, which would not call for specification in confession.

It need hardly be said that when the parties to adultery are both married thesin is more grievous than when one of them is single. Nor is it sufficient for a marriedperson whose guilty partner in this act was also married to declare in confession the fact simply of having committed adultery. The circumstance that both parties to thesin were married is one that must be made known. Again the adulterer in his confession must specify whether, as married, he violated his own marriage pledge or; as single he brought about the violation of the marriage pledge of another. Finally, it is to be observed that in case only one of the parties to adultery is married, a more heinoussin is committed when the marriedperson is thewoman than when she is the unmarried agent. For in the former instance the due process of generation is not infrequently interfered with, to the injury of the lawful husband; moreover, uncertainty of parentage may result, and even afalse heir may be imposed upon thefamily. Such a distinction as is here remarked, therefore, calls for specification in the confessional.

Obligations entailed upon the offenders

As we have seen, thesin of adultery implies an act ofinjustice. This is committed against the lawful spouse of the adulterer or adulteress. By the adultery of a wife, besides the injury done the husband by her infidelity, a spurious child may be born which he may think himself bound to sustain, and which may perhaps become his heir. For the injury suffered in the unfaithfulness of his wife restitution must be made to the husband, should he become apprised of the crime. Nor is theobligation of this restitution ordinarily discharged by an award of money. A more commensurate reparation, when possible, is to be offered. Whenever it iscertain that the offspring isillegitimate, and when the adulterer has employedviolence to make thewomansin, he is bound to refund the expenses incurred by the putative father in the support of the spurious child, and to make restitution for any inheritance which this child may receive. In case he did not employviolence, there being on his part but a simple concurrence, then, according to the more probable opinion oftheologians, the adulterer and adulteress are equally bound to the restitution just described. Even when one has moved the other tosin both are bound to restitution, though mosttheologians say that theobligation is more immediately pressing upon the one who induced the other tosin. When it is not sure that the offspring isillegitimate the common opinion oftheologians is that thesinful parties are not bound to restitution. As for the adulterous mother, in case she cannot secretly undo theinjustice resulting from the presence of herillegitimate child, she is notobliged to reveal hersin either to her husband or to her spurious offspring, unless theevil which the good name of the mother might sustain is less than that which would inevitably come from her failure to make such a revelation. Again, in case there would not be the danger ofinfamy, she would be held to reveal hersin when she could reasonably hope that such a manifestation would be productive of good results. This kind of issue, however, would be necessarily rare.

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