Page:Catholic Encyclopedia, volume 1.djvu/194

ADULTERY 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 of European Morals, II, 313).

In the Mosaic Law, as in the old Roman 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 single woman was not accounted adultery, but fornication. The penal statute on the subject, in Lev., xx, 10, makes this clear: "If any man commit adultery with the wife of another and defile his neighbour's wife let them be put to death both the adulterer and the adulteress. "(See also Deut., xxii, 22.) This was quite in keeping with the prevailing practice of polygamy among the Israelites. In the Christian law this discrimination against the wife is emphatically repudiated. In the law of Jesus Christ regarding marriage the unfaithful husband loses his ancient immunity (Matt., xix, 3–13). The obligation of mutual fidelity, incumbent upon husband as well as wife, is moreover implied in the notion of the Christian sacrament, in which is symbolized the ineffable and lasting union of the Heavenly Bridegroom and His unspotted Bride, the Church, St. Paul insists with emphasis upon the duty of equal mutual fidelity in both the marital partners (I Col., VII, 4); and several of the Fathers of the Church, as Tertullian (De Monogamia, cix), Lactantius (Divin. Instit., LVI, c. xxiii), St. Gregory Nazianzen (Oratio, xxxi), and St. Augustine (De Bono Conjugati, n. 4), have given clear expression to the same idea. But the notion that obligations of fidelity rested upon the husband the same as upon the wife is one that has not always found practical exemplification in the laws of Christian states. Despite the protests of Mr. Gladstone, the English Parliament passed, in 1857, a law by which a husband may obtain absolute divorce 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 a divorce a mensâ et toro". The same discrimination against the wife is found in some of our early New England colonies. Thus, in Massachusetts the adultery of the husband, unlike that of the wife, was not sufficient ground for divorce. 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, but divorce, when granted on the ground of adultery, is obtainable by the wife just as by the husband.

II. .—We have referred to the severe punishment meted out to the adulterous woman and her seducer among savages. It is clear, however, that the severity of these penalties did not find their sanction in anything like an adequate idea of the guilt of this crime. In contrast with such rigour is the lofty benignity of Jesus Christ towards the one guilty of adultery (John, viii, 3, 4), a contrast as marked as that which exists between the Christian doctrine regarding the malice of this sin and the idea of its guilt which prevailed before the Christian era. In the early discipline of the Church we see reflected a sense of the enormity of adultery, though it must be admitted that the severity of this legislation, 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, a sin against justice. Drawing a distinction between these two elements of malice, certain casuists, early in the seventeenth century, declared that intercourse with a married woman, when her husband gave his consent, constituted not the sin of adultery, but of fornication. It would, therefore, they contended, be sufficient for the penitent, having committed this act, to accuse himself of the latter sin only in confession. At the instance of the Archbishop of Mechlin, the Academy of Louvain, in the year 1653, censured as false and erroneous the proposition: "Copula cum conjugata consentiente marito non est adulterium, adeoque sufficit in confessione dicere se esse fornicatum." The same proposition was condemned by Innocent XI, 2 March, 1679 (Denzinger, Enchir., p. 222, 5th ed.). The falsity of this doctrine appears from the very etymology of the word adultery, for the term signifies the going into the bed of another (St. Thom., II-II, Q. cliv, art. 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 and education, of offspring, and its postulates cannot in any way be affected by the consent of parents. Such consent, therefore, as subversive of the good of human generation, becomes juridically void. It cannot, therefore, be adduced as a ground for the doctrine 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 private rights 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 marital society, 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 no obligation to reveal the fact of his consent in the case we have supposed (Viva, Damnatæ 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 a Christian, as distinct from that committed with a Pagan, there would be special malice against the sacrament constituting a sin against religion. Though some theologians have held that such would be the case, it should be said, with Viva, that the fact that the sinful person was a Christian 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 the sin is more grievous than when one of them is single. Nor is it sufficient for a married person 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 the sin 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