Volume 1

A dictionary of Christian antiquities : being a continuation of the 'Dictionary of the Bible' / edited by William Smith and Samuel Cheetham ; illustrated by engravings on wood.

Date:: [between 1890 and 1899?]

Credit: A dictionary of Christian antiquities : being a continuation of the 'Dictionary of the Bible' / edited by William Smith and Samuel Cheetham ; illustrated by engravings on wood. Source: Wellcome Collection.

45/1096 (page 25)

$of confounded explanations occurs in a remark- able dialogue between the doctor and his friend, vol. iii. 46, of Croker’s Boswell. The natural inference is that the above-men- tioned authors were not conversant with the great change of definition undergone by the word adultery and its equivalents. But when those who write on the specialties of church history and antiquities quote Fathers, councils, jurists, and decretals, they ought in reason to note how far the common terms which their catenae link together are or are not used in the same sense throughout. This precaution has been generally neglected as regards the subject of this article, —hence endless confusion. Immediately upon the nature of the crime (as legally defined) followed its Classification. By Z£X Julia, 48 Dig., i. 1, it \vas placed among public wrongs. But a public wrong does not necessarily infer a public right of prosecution; see Gothofred’s note on Cod. Theod. 9, tit. 7, s. 2. —“Aliud est publicum crimen; aliud publica accusatio.” For Publica Judicia, cf. Dig. as above and Institut. Justin. 4, 18, sub init. Under Augustus the husband was preferred as prosecutor, next the wife’s father. The hus- band was in danger of incurring the guilt of procuration (lenocinium') if he tailed to pros*e- cute (48, Dig. v. 2, § 2, and 29, sub init.; also 9, Cod. Just. 9, 2). He must open proceedings by sending a divorce to his wife (48, Dig. v. 2, § 2; 11, § 10; and 29, init.). Thus t^'orce was made an essential penalty, though far from being the whole punishment. By Boiell. 117, c. 8, pro- ceedings might commence before the divorce. Such prosecution had 60 days allowed for it, and these must be dies utiles. The husband’s choice of days was large, as his libellus might be presented “ de piano,” i.e., the judge not sit- ting “pro tribunali” (48, Dig. v. 11, § 6; and 14, § 2). The husband might also accuse for 4 months further, but not “jure mariti,” only “ut quivis extraneus” (Goth, on 11, § 6). For ex- ample, see Tacit. Ann. ii. 85; Labeo called to account by the praetor (cf. Orell. note), for not having accused his wife, pleads that his 60 days had not elapsed. After this time an extraneus might intervene for 4 months of avail- able days (tit. of Dig. last quoted, 4, § 1). If the divorced wife married before accusation, it was necessary to begin with the adulterer (2, init.; 39, § 3). The wife might then escape through failure of the plaint against him (17, § 6). He was liable for five continuous years even though she were dead (11, § 4; 39, § 2), and his death did not shield her (19, init.), but that period barred all accusation against both oftenders (29, § 5; and 31; also 9, Cod. J. 9, 5). Under Constantine, A.D. 326 (9, Cod. Theod. 7, 2, iind 9, Cod. J. 9, 30), the right of public prose- cution was taken away. The prosecutors were thus arranged: husband; wife’s relations, i.e. father, brother, father’s brother, mother’s brother. This order remained unaltered (see Balsam. Schol. in Bevereg. Pandect, i. 408, and Blastaris Syn- tagma, p. 185). The ilosaic law, like the Roman, made this offence a public wrong, and apparently also a matter for public prosecution; compare Deut. xxii. 22, with John viii. 3 and 10. As long as the penalty of death was enforced, the ‘husband cooiu not condone. But in later times he might content himself mth acting under Deut. xxiv. 1- 4. See Matt, i., 19. [Fspousals count as matri- mony under Jewish law even more strongly than under Roman ; compare L>eut. xxii. 23, seq., with 48, Dig. V, 13, § 3]. See also Hosea, ii. 2, iii. 1, and parallel passages. By canon law all known sins are scandals, and as such public wrongs ; cf. Gothofr. marg. annot. on Dig. 48, tit. 1, s. 1 ; Grat. Decret. ii. c. 6, 9, 1 ; J. Claru-s, Sent. Bee. v. 1,6; and on Adultery, Blackstone, iii. 8, 1, and iv. 4, 11. This ofience became known to Church authorities in various ways; see Basil 34; Innocent ad Exup. 4; and Elib. 76, 78, Greg. Xyss. 4, where confession mitigates punishment. A similar allow^ance for self-accusation is found in regard of other crimes, e.g. Greg. Thaum. cans. 8 and 9. The Church agreed with the State in not allowing a husband to condone (Basil, 9 and 21), and on clerks especially (Neocaesarea, 8), Divines who were not canonists diflered consi- derably. Hermas’s Pastor (Mandat, iv.) allowed and urged one reconciliation to a penitent wife. Augustine changed his mind ; compare Be Adul- terin. Conjug. lib. ii. 8 (ix.) with Pdractat. lib. i. xix. 6. In the first of these places he hesitates between condonation and divorce ; opposes for- giveness “ per claves regni caelorum ” to the pro- hibitions of law “ secundum terrenae civitatis modum,” and concludes by advising continence, which no law forbids. In the latter passage he speaks of divorce as not only allowed but com- manded. “ Et ubi dixi hoc permissura esse, non jussum ; non attend! aliam Scripturam dicentem ; Qui tenet adulteram stultus et impius est ” (Prov. XA’iii. 22 ; Ixx.). A public wrong im.plied civil idghts ; therefore this offence ^as the crime of free persons (Dig. 48, tit. 5, s. 6 init.). “ Inter liberas tantum per- sonas adulterium stuprumve passas Lex Julia locum habet.” Cf. Cod. J. 9, tit. 9, s. 23 init. A slave was capable only of Contubernium (see Ser- vus and Matrimonium in Diet. Antiq.). Servitude annulled marriage (Dig. 24, tit. 2, s. 1), or rather made it null from the first (^Novell. Just. 22. 8, 9, 10). “Ancillam a toro abjicere” is laudable ac- cording to Pope Leo 1. (Ac? Rustic. 6). That Christian princes attempted to benefit slaves rather by manumission than by ameliorating the servile condition, we see from the above-quoted Novell, and from HarmeUop. Proch. i. 14; the slave (sec. 1) is competent to no civil relations, and (sec. 6) his state is a quasi-death. Concubinage was not adultery (Dig. 25, tit. 7, s. 3, § 1); but a concubine might become an adult- eress, because, though not an uxor, she ought to be a matrona, and could therefore, if unfaithful, be accused, not jure mariti, hut jure extranei. For legal conditions, see Cod. J. 5, tit. 26 and 27, Just. Novell. 18, c. 5 ; also 74 and 89. Leo (Aon. 91) abolished concubinage on Christian grounds. For the W'ay in w'hich the Church regarded it, cf. Bals., on Basil, 26, and Cone. Tolet. i. 17; also August. Quaest. in Genesim, 90, De Fid. et Op. 35 (xix.), and Senn. 392, 2. Pope Leo I. (Ac? Rustic. 4, cf. 6, as given by Mansi) seems to make the legal concubine a mere ancilla ; cf. Grat. Decret. I. Dist. 34 (ut supra) and Diet. Antiq. s. v. We now come to much the gravest conse- quence of a classification under public wu'ongs— its effect on woman’s remedy. By Lex Julia, the I wife has no pow’er of plaint against the husband$