Double and single adultery are punish able with various degrees of severity in most of the countries of modern Europe ; but it is believed that in none of them, at the present day, is either of these offences capital.
There are some traces of the punish meat of adultery as a crime in very early periods of the history of English law. Lord Coke says, that in ancient times it was within the jurisdiction of the sheriff's tourns and court-leet, and was punished by fine and imprisonment (3 Inst. 306): but at the present day, adultery is not the subject of a criminal prosecution in the temporal courts, and the cognizance of the offence is confined to the Ecclesias tical Courts, according to the rules of the canon law. Instances of criminal prose cutions in the spiritual courts for adul tery are extremely rare ; and if instituted to the conviction of the parties, the in fliction of a slight fine or penance " for the benefit of the offender's soul " (in salutes anima), as it was termed, would be the only result. In the year 11;04 (2 James I.) a bill was brought into Parlia ment " for tae better repressing the de testable crime of adultery." This bill went through a committee in the House of Lords; but, upon being reported, it was suggested to the House that the object contemplated by the measure was the private interest of some individuals, and not the public good; whereupon the bill was dropped. (Part. History, vol. v. p. 88.) During the ComMonwealth, adul tery, in either sex, was made a capital felony (Scobel's Acts, part ii. p. 121), but at the Restoration this law was dis continued.
Adultery, however, comes under the cognizance of the temporal courts in Eng land as an injury to the husband. Thus a man may maintain an action against the seducer of his wife, in which he may recover damages as a compensation for the loss of her services and affections in consequence of the adultery. For the particular rules and proceedings in this action, see Selwyn's Nisi Pries, title " Adultery." But the legal nature of the union of husband and wife does not give the wife the same rights as the husband, and she has no remedy by the common or statute law in case of the husband's sexual intercourse with another woman: she has no redress for his misconduct in the ordinary courts. Her only remedy is in the Ecclesiastical Courts, where she can obtain a separation from her husband, but not a complete divorce. The band, after obtaining a verdict against the adulterer in a court of law, and a sentence of separation by the Ecclesias tical Court, may obtain a divorce from his wife by Act of Parliament ; and in no other way. [Dtvoacx.] It is not easy to define the law of Scot land relative to adultery. Heavy penal ties were levelled against it by various acts of the sixteenth century, and at last by the Act 1503, C. 74, it was ordained that " all notour or manifest committers of adulterie, in onie time to cum, sail be punished with all the rigour unto the death, as weil the woman as the man, doer and committer of the gamin:" and certain criterions were established for distinguishing the notorious and habitual practice of the crime which was thus pu nishable with death, from those isolated acts which were visited by the common law with a less punishment. The latest instance of sentence of death awarded for adultery is, perhaps, the case of Margaret Thomson, 28th May, 1677. All the sta tutes on the subject have, according to the peculiar practice of Scotland, expired by long desuetude. On the other hand, however, if the public prosecutor should think fit to prosecute for adultery, the High Court of Justiciary has authority to count it within the class of offences punishable at discretion. Such prosecu
tions the however unknown. In the se venteenth and the commencement of the eighteenth century, the church courts made themselves very active in requiring the civil magistrate to adjudicate in this offence ; but this means of punishment was abolished by the 10th Anne, c. 7, § 10, which prohibited civil magistrates from giving effect to ecclesiastical censures. Of late years the doctrine has been ad mitted by Scottish lawyers, that the se duction of a wife is a good ground for an action of damages ; but such prosecutions are wholly unknown in practice. Adul tery is a good ground for an action of divorce. [DIVORCE..] (Hume On Crimes, i. 452-458; Stair's Institute, b. 1, tit. 4, § 7 ; Erskine's Inetitute, b. 1, tit. 6, § 43.) The French law (Code Final, 324) makes it excusable homicide if the hus band kills the wife and the adulterer in the act of adultery in his own house. The punishment of a woman convicted of adultery is imprisonment for a period of not less than three months, and not ex ceeding two years ; but the prosecution can only be instituted at the suit of the husband ; and the sentence may be abated on his consenting to take back the wife (§ 337, 337). The paramour of a wife convicted of adultery is liable to imprisonment for not less than three months, or for a period not exceeding two years ; and to a penalty of not leas than 100 francs, or not exceeding 2000 francs (§ 338). A husband convicted, on complaint of the wife, of keeping a concubine in his own house, is liable to penalties of not less than 100 or not more than 2000 francs; and under these circumstances he cannot institute a suit against his wife for adultery (§ 339).
In the State of New York, the Court of Chancery is empowered to pronounce a divorce is vinculo matrimonii in the case of adultery, and in no other case, upon the complaint either of the husband or the wife. The process is by bill filed by the complaining party. [DivoncE.] If a divorce is pronounced, the defendant is dis abled from marrying during the lifetime of the other party. Adultery appears to be a ground of divorce in all the American States, so far as can be collected from the statement in Kent (Commentaries, vol. ii.). A case is mentioned by Kent as decided in New Jersey, in which it was adjudged that a married man was not guilty of adultery in having carnal connection with an unmarried woman. By a statute of North Carolina, adultery is an indictable offence. In Alabama both adultery and fornication are indictable offences in per sons living together in adultery or for nication. The law of Massachusetts also punishes adultery and fornication as in dictable offences.
Du Cange (Gloss. Med. et Infim. La tin.) contains much curious matter on the punishulent of adultery among various nations of the middle ages.
The subject of adultery and its penalties is one of great interest to society, but one of great difficulty. The usages of nations have varied as to the punishment, but in asmuch as adultery is the corruption of marriage, which is the foundation of so ciety, adultery has been viewed as a great offence by all nations. The consi deration of the penalties which ought to be imposed on the offenders is in separable from the question of divorce and the provision for the children of the marriage, if any.