Various theories have been set forth to explain the religious prostitution of the Babylonian type. It has been interpreted as an expiation for individual marriage, as a temporary recognition of pre-existing communal rights at a time when “communal marriage” in the full sense of the term had already ceased to exist.147 It has been supposed to be nothing but ordinary immorality practised under the cloak of religion.148 It has been represented as a form of sacrifice, either as a first-fruit offering149 or as an act by which a worshipper sacrifices her most precious possession to the deity.150 To Dr. Farnell it seems to be “a special modification of a wide-spread custom, the custom of destroying virginity before marriage so that the bridegroom’s intercourse should be safe from a peril that is much dreaded by men in a certain stage of culture; and here, as in other ritual,” he adds, “it is the stranger that takes the peril upon himself.”151 But why should the stranger have been more willing than the bridegroom to expose himself to this danger? Considering that the act was performed at the temple of the goddess of fecundity, I think its object most probably was to ensure fertility in the woman; this, in fact, is directly indicated by the words which the stranger, according to Herodotus, uttered when he threw the silver coin into her lap:—“The goddess Mylitta prosper thee!”152 And from what has been said in a previous chapter about the semi-supernatural character ascribed to strangers, about the efficacy of their blessings and the benefits expected from their love,153 we can see why a stranger was appointed to confer the blessing upon the girl.154

Among ourselves an act of incontinence assumes a different aspect if one of the parties, either the man or the woman, is married. Involving a breach of faith, adultery is an offence against him or her to whom faith is due, and at the same time the seducer commits an offence against the husband of the adulteress. But here again our own views are not universally shared.

Although it is hard to understand that the seducer could ever be regarded as guiltless, we are told that among a few peoples adultery is not held to be wrong;155 and Mr. Morgan states that among the Iroquois “punishment was inflicted upon the woman alone, who was supposed to be the only offender.”156 But these cases are certainly quite exceptional. In a savage tribe a seducer may be thankful if he escapes by paying to the injured husband the value of the bride or some other fine, or if the penalty is reduced to a flogging, to his head being shaved, his ears cut off, one of his eyes destroyed, or his legs speared. Very commonly he has to pay with his life. We have seen that even among many peoples who generally prohibit self-redress an adulterer may be put to death by the aggrieved husband, especially if he be caught flagrante delicto;157 and in other cases he may be subject to capital punishment, in the proper sense of the word.158 In Albania, even in our days, custom not only allows, but compels, the injured husband to kill the adulterer.159 Hebrew law enjoined the man who committed adultery with another man’s wife to be put to death;160 and Christian legislators followed the example. Constantine celebrated his new zeal for the sacramental idea of marriage by establishing the punishment of death for the seducer;161 adultery was in point of heinousness assimilated to murder, idolatry, and sorcery.162 Various mediæval law-books punished the seducer with death;163 whilst in Scotland notorious and manifest adultery was made capital as late as 1563.164 This extreme severity, however, has been followed by extreme leniency. In Scotland, though adultery kept its place in the statute-book as a heinous and in some cases a capital crime, prosecution for it had ceased for many years before the time of Baron Hume;165 and in England it is no crime at all in the eyes of the law, only an ecclesiastical offence.

The punishment of the seducer often varies according to his rank, or according to that of the husband, or according to the relative rank of both, or according to the rank of the adulteress. Among the Monbuttu, if the guilty woman belongs to the royal household, the adulterer is put to death, whereas otherwise he is only compelled to pay an indemnity to the offended husband.166 Among the Ew̔e-speaking peoples of the Slave Coast the fine imposed for adultery depends on the rank of the injured husband;167 and the same principle is found in Anglo-Saxon law.168 Among the Bakongo, again, the penalties for adultery “vary from capital punishment to a trifling fine, according to the station of the offender or the district he lives in.”169 Drury tells us that in the country of Anterndroea in Madagascar, “if a man lies with another man’s wife who is superior to him, he forfeits thirty head of cattle besides beads and shovels a great number,” whereas “if the men are of an equal rank, then twenty beasts are the fine.”170 According to the Chinese Penal Code, a slave who is guilty of criminal intercourse with the wife or daughter of a freeman, shall be punished at the least one degree more severely than a freeman would have been under the same circumstances.171 In India a man of one of the first three castes who committed adultery with a Sûdra woman was banished, but a Sûdra who committed adultery with a woman of one of the first three castes suffered capital punishment;172 and an opinion is also quoted that for a Brâhmana who once was guilty of adultery with a married woman of equal class, the penance was one-fourth of that prescribed for an outcast.173 In ancient Peru “an adulterer was punish’d with death, if the woman was of note, or else with the rack.”174

We find no difficulty in explaining all these facts. In early civilisation a husband has often extreme rights over his wife. The seducer encroaches upon a right of which he is most jealous, and with regard to which his passions are most easily inflamed. Adultery is regarded as an illegitimate appropriation of the exclusive claims which the husband has acquired by the purchase of his wife, as an offence against property.175 It is said in the ‘Laws of Manu’ that “seed must not be sown by any man on that which belongs to another.”176 How closely the seducer is associated with a thief is illustrated by the fact that among some peoples he is punished as such, having his hands, or one of them, cut off.177 Yet even among savages the offence is something more than a mere infringement of the right of ownership. The Kurile Islanders, says Krasheninnikoff, have an extraordinary way of punishing adultery: the husband of the adulteress challenges the adulterer to a combat. The result is generally the death of both the combatants; but it is held to be “as great dishonour to refuse this combat as to refuse an invitation to a duel among the people of Europe.”178 The passion of jealousy, the feeling of ownership, and the sense of honour, thus combine to make the seducer’s act an offence, and often a heinous offence, in the eyes of custom or law; and for the same reasons as in other offences the magnitude of guilt is here also influenced by the rank of the parties concerned. Modern legislation, on the other hand, does not to the same extent as early law and custom allow a man to give free vent to his angry passion; it regards the dishonour of the aggrieved husband as a matter of too private a character to be publicly avenged; and the faithfulness which a wife owes her husband is no longer connected with any idea of ownership. Moreover, the severity of earlier European laws against adultery was closely connected with Christianity’s abhorrence of all kinds of irregular sexual intercourse; and secular legislation has more and more freed itself from the bondage of religious doctrine.

Among some savage peoples it is the seducer only who suffers, whilst the unfaithful wife escapes without punishment.179 Jealousy, in the first place, turns against the rival, and the seducer is the dishonourer and the thief. But, as a general rule, the unfaithful wife is also looked upon as an offender, and the punishment falls on both. She is discarded, beaten, or ill-treated in some way or other, and not infrequently she is killed. Often, too, she is disfigured by her enraged husband, so that no man may fall in love with her ever after.180 Indeed, so strong is the idea that a wife belongs exclusively to her husband, that among several peoples she has to die with him;181 and frequently a widow is prohibited from remarrying either for ever or for a certain period after the husband’s death.182 In ancient Peru widows generally continued to live single, as “this virtue was much commended in their laws and ordinances.”183 Nor is it in China considered proper for a woman to contract a second marriage after her husband’s death, and a lady of rank, by doing so, exposes herself to a penalty of eighty blows.184 “As a faithful minister does not serve two lords, neither may a faithful woman marry a second husband”—this is to the Chinese a principle of life, a maxim generally received as gospel.185 Among so-called Aryan peoples the ancient custom which ordained sacrifice of widows survived in the prohibitions issued against their marrying a second time.186 Even now the bare mention of a second marriage for a Hindu woman would be considered the greatest of insults, and, if she married again, “she would be hunted out of society, and no decent person would venture at any time to have the slightest intercourse with her.”187 In Greece188 and Rome189 a widow’s remarriage was regarded as an insult to her former husband; and so it is still regarded among the Southern Slavs.190 The early Christians, especially the Montanists and Novatians, strongly disapproved of second marriages by persons of either sex;191 a second marriage was described by them as a “kind of fornication,”192 or as a “specious adultery.”193 It was looked upon as a manifest sign of incontinence, and also as inconsistent with the doctrine that marriage is an emblem of the union of Christ with the Church.194

Conjugal fidelity, whilst considered a stringent duty in the wife, is not generally considered so in the husband. This is obviously the rule among savage and barbarous tribes; but there are interesting exceptions to the rule. The Igorrotes of Luzon are so strictly monogamous that in case of adultery the guilty party can be compelled to leave the hut and the family for ever,195 and among various other monogamous savages adultery is said to be unknown.196 The Dyak husband “preserves his vow of fidelity with a rectitude which makes jealousy a farce.”197 The Toungtha, who marry only one wife, do not consider it right for a master to take advantage of his position even with regard to the female slaves in his house.198 Nay, the duty of fidelity in the husband has been recognised even by some savage peoples who allow polygamy. The Abipones, we are told, thought it both wicked and disgraceful to have any illicit intercourse with other women than their wives; hence adultery was almost unheard of among them.199 Among the Omaha Indians, “if a woman’s husband be guilty of adultery with another woman she may strike him or the guilty female in her anger,” though she cannot claim damages.200 In several tribes of Western Victoria a wife whose husband has been unfaithful to her “may make a complaint to the chief, who can punish the man by sending him away from his tribe for two or three moons”;201 and among some aborigines in New South Wales similar complaints may be made to the elders of the tribe, with the result that the adulterous husband may have to suffer for his conduct.202 The Kandhs of India deny the married man certain prerogatives which are granted to his wife: whilst constancy to her husband is so far from being required in a wife, “that her pretensions do not, at least, suffer diminution in the eyes of either sex when fines are levied on her convicted lovers,” infidelity in a married man is held to be highly dishonourable, and is often punished with deprivation of many social privileges.203

The duty which savages thus in certain instances have imposed on the husband is hardly at all recognised in the archaic State. The Mexicans “did not consider, nor did they punish, as adultery the trespass of a husband with any woman who was free, or not joined in matrimony; wherefore the husband was not bound to so much fidelity as was exacted from the wife,” adultery in her being inevitably punished with death.204 In China, where adultery in a woman is branded as one of the vilest crimes and the guilty wife is oftentimes “cut into small pieces,” concubinage is a recognised institution of the country.205 In Corea “conjugal fidelity—obligatory on the woman—is not required of the husband…. Among the nobles, the young bridegroom spends three or four days with his bride, and then absents himself from her for a considerable time, to prove that he does not esteem her too highly. Etiquette dooms her to a species of widowhood, while he spends his hours of relaxation in the society of his concubines. To act otherwise would be considered in very bad taste, and highly unfashionable.”206 In Japan, “while the man is allowed a loose foot, the woman is expected not only to be absolutely spotless, but also never to show any jealousy, however wide the husband may roam, or however numerous may be the concubines in his family.”207 According to Hebrew law adultery was a capital offence, but it presupposed that the guilty woman was another man’s wife.208 The “Aryan” nations in early times generally saw nothing objectionable in the unfaithfulness of a married man, whereas an adulterous wife was subject to the severest penalties.209 Until some time after the introduction of Christianity among the Teutons their law-books made no mention of the infidelity of husbands, because it was permitted by custom.210 The Romans defined adultery as sexual intercourse with another man’s wife; on the other hand, the intercourse of a married man with an unmarried woman was not regarded as adultery.211 The ordinary Greek feeling on the subject is expressed in the oration against Neæra, ascribed to Demosthenes, where the licence accorded to husbands is spoken of as a matter of course:—“We keep mistresses for our pleasures, concubines for constant attendance, and wives to bear us legitimate children and to be our faithful house-keepers.”212