fear them as their masters: I have taught husbands to keep their faith to their wives, as they desire by all means that modesty should be preserved for themselves for whatever God, who is himself the Father and Founder of all things, punishes in an adulterous wife, he also punishes in an adulterous husband". Abdiæ Apostol. Hist. de S. Paulo, s. 7. apud Fabricium. Cod. Apocr. Nov. Test. CHAPTER V. THE SINFUL AND CRIMINAL CHARACTER OF ADULTERY. THE degree of guilt which attaches to the offence of the adulterer cannot be justly ascertained without reverting to the nature of the contract of which adultery is the breach and violation. If marriage, as it is contemplated by some writers, be a civil contract, and nothing more, adultery, as the violation of that contract, may be thought a civil injury, and liable to the same redress as other civil injuries. A civil injury is properly the infringement or privation of the private or civil right of an individual, in respect of his person or property, under which he is entitled to recover by civil action the right and interest which he has lost, or to receive some compensation for the wrong which he has sustained. Thus by the civil law of Rome simple theft was pronounced a civil injury, for which a man was entitled to obtain redress by civil action, and which under the Jewish law also might be discharged by the payment of an equivalent. It is not unreasonable nor inconsistent with this view of the nature of civil injuries to suppose that the fine or compensation for adultery, considered as a civil injury, had originally respect to the manner in which the wife came into possession of the husband, and to the right and interest which the Exod. xxii. 1, 4. Lev. vi. Gibbon's Rom. Emp. c. 44. 4. Prov. vi. 31. man possessed in the woman at a time when the woman was held to be not a person but a thing; a thing which might be acquired by coemption, and any deficiency in the title to which might be supplied by use and possession for a year. It was very consistent with this state of society, that the father of an adulteress should return the dower which the husband had as it were paid for the purchase of the wife, and that the adulterer should redeem himself from other penalties, by paying the price of the benefit of which he had surreptitiously possessed himself. It is not unjust to impute the same doctrine, or at least a tacit recognition of the husband's property in the wife, to the law of England, which pronounces adultery to be a civil injury, and provides satisfaction to the husband by an action of trespass vi et armis, which is the ordinary method of obtaining redress for immediate injury done to the person or property of another: but it may be asked, Is the comfort and society of the wife, in the loss of which the foundation of the action is said to consist, a personal right of the husband in any other sense than as it affects his property? It may also be questioned, how far the doctrine of the law is agreeable to the present state of English society, in which the woman is certainly not purchased by the man, is not held to be his property, but is possessed of equal and reciprocal rights: how far it corresponds with those reciprocal rights, or even with the nature of marriage, considered as a civil contract between parties equally capable of contracting, to Gibbon, c. 44. allow to the husband, and to withhold from the wife, the right of action for damages for the civil injury; and what is the value of the common excuse for this partiality, if the gist of the action is not the danger of a spurious issue, but the loss of the wife's conversation, a loss not more injurious to the man, than is the loss of the husband's protection to the woman. It may be more generally excepted, that if under the authority of the merely civil contract the parties are free to covenant for a mutual release, and to resort to the Roman practice of divorce bonâ gratiâ, they are equally free to reserve a right and licence of adultery, by which the civil injury would be abated, and which is actually stipulated for in the East, is implied in all cases of polygamy and community of wives, and is supposed to have been the ground of the extraordinary power assumed by the husband of lending a wife. Such objections to the doctrine of marriage as a civil contract, and of adultery as a civil injury, it would be unjust to overlook, but it is no part of the present argument to resolve. If marriage, as has been contended, be a divine institution, and not merely a civil contract, adultery assumes the character of a sin, and is the violation of a duty which is due to God, not less than of a duty which is due to man: and if the question be referred to the sacred writings it will be seen, as well from the punishment as from the prohibition, that adultery has always been accounted a sin of a very heinous and aggravated kind. In the patriarchal age God took upon himself to defend the purity of the marriage bed, when it was endangered through the false fear of those who were most concerned in its preservation. When Abram in the consciousness of Sarai's beauty advised her to assume the character of his sister, and Pharaoh, as was expected, was captivated by her beauty, the Lord plagued Pharaoh and his house with great plagues because of Sarai, Abram's wife, and deterred him from the crime which he ignorantly meditated. Pharaoh obeyed the warning, and reproving Abram restored to him his wife, not without expressing a secret abhorrence of the sin which he had tempted him to conceive, and which he would not have conceived, if he had known that Sarai was a man's wife: What is this that thou hast done unto me? Why didst thou not tell me that she was thy wife? Why saidst thou, She is my sister? so I might have taken her to me to wife. Now therefore, behold thy wife; take her, and go thy way. A similar case occurred, through the same false fear and apprehension of Abraham, in which the guilt of adultery, as a sin against God, is yet more clearly demonstrated. Abraham represented his wife under the same character of his sister to Abimelech the king of Gerar: and when Abimelech had sent for Sarai, God came to Abimelech in a dream by night, and said unto him, Behold, thou art but a dead man, for the woman that thou hast taken, for she is a man's wife. But Abimelech had not come near her; and he said, Lord, wilt thou slay also a righteous nation? Said he not unto me, She is my sister? And she, even she herself, said, He is my brother; in the integrity of my heart, and the inno 4 Gen. xii. 11–20. |