The ancient Romans had no formal law against adultery; but both accusation and punishment were arbitrary. The Emperor Augustus was the first who brought them into a law, which he had the misfortune to see executed in the persons of his own children. This was the Julian Law.
But, though this law left the accusation of adultery open to everybody, it is certain, adultery has been always looked upon as a private and domestic crime, rather than a public one; so that strangers were seldom suffered to prosecute, especially where the marriage was peaceful, and the husband made no complaint. Some of the succeeding Emperors abrogated this law, which left the accusation of adultery open to strangers;In regard, such an accusation could not be entered without setting the husband and wife at variance, throwing the children into a state of uncertainty, and bringing contempt and derision upon the husband; for as the husband is the nearest interested in the matter, it is supposed he will examine the wife's actions with more circumspection than any other: So that where he is silent, it is not fair anybody else should speak for him. See ACCUSATION.
For this reason, the law, in some cases, has made the Husband both judge and executioner in his own cause; and has allowed him to revenge himself of the injury, by taking away the lives of the adulterers whom he should apprehend in the act. It is true, where the husband made a trade of his wife's infamy, or where having seen her shame with his own eyes, he yet suffered patiently and dissembled the affront; in these cases, adultery became a crime of public concern: and the Julian Law provides punishments for such husbands, as well as their wives.
In most European countries, at this day, adultery is not a public crime; and none but the husband is suffered to intermeddle, excepting where the scandal is very notorious. Even the King's Advocates, Attorney, or the like, may not intermeddle.
Add, that though the husband who violates the conjugal bond is guilty of adultery as well as the wife; yet is not the wife allowed to accuse, or prosecute him for the same. See WIFE, HUSBAND, etc.
Socrates relates, L. V. c. 8. that under the Emperor Theodosius, in the year 380, women convicted of adultery were punished by public constupration.
Lycurgus punished the adulterer as a parricide—The Locrians tore out his eyes; and most of the Orientals punish him very severely.
The Saxons formerly burnt the adulteress, and over her ashes erected a gibbet, whereon the adulterer was hanged. In England, King Edmond punished adultery as homicide; but Canute ordained the man to be banished, and the woman to have her nose and ears cut off. Qui uxoratus faciet adulterium, habet rex vel dominus superiorem; episcopus inferiorem. IL. Hen. 1. c. 12. De adulterio per totam client. habet rex hominem, episcopus mulierem. Domesday, tit. Cestre Civit. In Spain, they punished adultery by cutting off that part which had been the instrument of the crime. In Poland, before Christianity was established, they punished adultery and fornication in a very particular manner: The criminal they carried into the market-place, and there fastened him by the testicles with a nail; laying a razor within his reach, and leaving him under a necessity, either of doing justice upon himself or of perishing in that condition.
At present, the laws are much more favorable: To divorce and strip the adulteress of her dower is all her punishment among us: In the Romanish countries, they also shut them up in nunneries.
The Lacedemonians, instead of punishing adultery, permitted it, or at least tolerated it; as we are told by Plutarch. See CONCUBINE. According to some of the Papal decisions, adultery renders marriage between the two criminals unlawful; this making what the schools call impedimentum criminis.
The Greeks, and other Christians throughout the East, adhere to the opinion that adultery dissolves the bond of marriage: So that the husband, without more ado, may marry another—The Council of Trent condemns that opinion; and even in some measure anathematizes those who hold it. See XXIV. Can. 7.