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General => The Common Room => Topic started by: Forfarian on Friday 06 June 25 10:28 BST (UK)
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Adultery is defined in both Scots and English law as either a married man having sexual intercourse with a woman who is not his wife, or a married woman having sexual intercourse with a man who is not her husband.
Clearly, a married person who has sexual intercourse with a person whos is not their spouse is an adulterer/adulteress.
But what about the other party? Is a single person who has sexual intercourse with a married person also an adulterer/adulteress, or merely a fornicator/fornicatrix?
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As far as I can find out no, a single person cannot commit adultery. But I also discovered that in Scots law they are referred to as the ‘paramour’.
https://brodies.com/insights/family-law/adultery-divorces-in-scotland/
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Depending on the circumstances etc etc it must vary?
Was the other party aware that the person they were having intercourse with was actually married?
The time frame may also play a part in the apportioning of guilt / label applied at that time
Boo
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The ecclesiastical sin of fornication is applied to single women who give birth to a child.
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The following is from my 1709 copy of Collections and observations methodiz'd concerning the worship, discipline, and government of the church of Scotland.
"Adultery is the violation of another's bed... and is committed by a Married person's lying with an Unmarried, or the Unmarried person's lying with one who is married. If the Woman with whom the adultery is committed was at that Time living as a common Whore, and the Committer was a single Man, and knew nothing of her being Married, his punishment should be moderated on that account, but if the Man was Married, the Crime is the same, whether the Woman was a Whore or not, it being still a Violation on his part." That would seem to suggest both parties are guilty of adultery, the married and the unmarried.
The same book says "Fornication is committed by the carnal knowledge of unmarried Persons."
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The King James Version at Matthew 5:-
v. 27 refers to adultery
v. 28 But I say unto you, That whosoever looketh on a woman to lust after her hath committed adultery with her already in his heart.
So if the act takes place, some will see the act as adultery and both are party to it.
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The ecclesiastical sin of fornication is applied to single women who give birth to a child.
Indeed, but it is not confined to such cases. The child is incidental.
The OED defines fornication as follows, "voluntary sexual intercourse between a man (in restricted use, an unmarried man) and an unmarried woman. In Scripture extended to adultery".
Chambers Dictionary defines it as "voluntary sexual intercourse of the unmarried, sometimes extended to cases where only one of the pair concerned is unmarried".
Matthew 5 v 28 is irrelevant to my original question, which is whether an unmarried person having actual sexual intercourse with a married person is an adulterer/adulteress or merely a fornicator/fornicatrix.
It seems that it is rather equivocal.
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I think in the case of an unmarried man and unmarried woman, she would be considered a fornicator, and he would be considered "a bit of a lad."
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I think in the case of an unmarried man and unmarried woman, she would be considered a fornicator, and he would be considered "a bit of a lad."
Very possibly, though the kirk sessions considered both parties as equally guilty.
My original question specifically relates to cases where one, and only one, of the guilty parties is married.
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Surely what is needed is proof?
In the case of fornication, that would be a pregnancy.
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So undetected fornication isn't fornication? And undetected adultery isn't adultery?
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https://www.rootschat.com/forum/index.php?topic=879749.0
Remembered I’d posted information about an ancestor who received a fornication penalty, attached purely as a bit of background.
I was once told in matters with legal implications that the definition of ‘reasonable’ is as good as your Barrister…
Flippant, yes but wondered if a similar approach could be used in consideration of ‘fornication’?
I dimly remember Bill Clinton’s lawyer at the time of the Monica Lewinsky case saying something along the lines ‘it all depends on how you define the word ‘is’.
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Caledonian Mercury 15-10-1753:
Thereafter came on the Trial of Alison Inglis, Daughter of --- Inglis at Scone, indicted for Adultery with the deceast George Bruce at Brechin a married Man. After reading the Indictment, she gave in a Petiton praying to be banished Scotland for Life, which the Advocate Depute having consented to, she was banished accordingly, never to return under the usual Certifications.
Her designation suggests she was not married, however, she is indicted for adultery and avoids the death penalty for "notour adultery" by petitioning for banishment instead.
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I descend from Richardson of Bubwith via my 3 x Gt Grandmother and he simply denied that the acts had occurred.
HC.CP.1637/3
May 1637
Immorality (adultery / failure to attend church / non-communication)
Office v. Peter Vavasour of Bubwith, esq, defendant
The office accused Peter of committing fornication and adultery with one Ruth Richardson. The office claimed that Peter had behaved very suspiciously and offensively with Ruth, had been found lying on a bed with her, had kept her in his house, and had continued to visit her for days at a time when she returned to her father’s house. The office further claimed that Peter had publicly boasted about his sexual relations with Ruth and with other women since his marriage, and had denied the claims of others that Ruth was a ‘comon strumpett or a whore.’
Peter agreed that Ruth had been a servant in his household, but denied that he had ever had sexual relations with her. He admitted that he had visited her father’s house since her return there, but claimed it was to do business with her father. Peter denied the other accusations made against him, but did admit that he was sometimes absent from church.
University of York
Borthwick Institute GB 193
Cause Papers in the Diocesan Courts of the Archbishopric of York, 1300 to 1858
HC.CP.1637/3
https://www.dhi.ac.uk/causepapers/causepaper.jsp?id=93232
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I think you will find a church court needs either an admission of guilt or a minimum of two witnesses.
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If you can find a copy of Prof Rebecca Probert's books about the law and marriage
Marriage Law for Genealogists and Divorced, Bigamist and Bereaved
you might find the definitive answer to your question
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If you can find a copy of Prof Rebecca Probert's books about the law and marriage
Marriage Law for Genealogists and Divorced, Bigamist and Bereaved
you might find the definitive answer to your question
Thank you for passing on details of this book which looks very interesting, there are a number of copies on Abebooks under £10.00.
https://www.abebooks.co.uk/Marriage-Law-Genealogists-Definitive-Guide-What/32134317143/bd
However it looks like the Marriage Law considered in the book apply to England and Wales only.
Are there any similar publications which cover Scotland and Northern Ireland?
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he simply denied that the acts had occurred
That's a very common reaction to an accusation of either adultery or fornication.
It sheds no light at all on the original question, which is, does an unmarried person who has sexual relations with a married person commit adultery or fornication?
Thank you, GR2, for that example from 1753, which is relevant.
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he simply denied that the acts had occurred
It sheds no light at all on the original question, which is, does an unmarried person who has sexual relations with a married person commit adultery or fornication?
Unfortunately I don’t think there is a simple answer to the question as there are so many variables for example (not exhaustive): was ecclesiastical law involved? which country did the people involved live in? when did the activities take place? (with apologies) potentially what were the detailed sexual activities that took place?
To mention, for the last question I first wrote ‘conceivably‘’ then changed to ‘potentially’ to avoid any pun!
Further background from Wikipedia with respect to English law
https://en.m.wikipedia.org/wiki/Adultery_in_English_law
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However it looks like the Marriage Law considered in the book apply to England and Wales only.
Are there any similar publications which cover Scotland and Northern Ireland?
There is a book "A Handbook of Husband And Wife According to the Laws of Scotland" by Frederick Parker Walton published in 1893 which has a whole chapter dedicated to Adultery. (Chapter 6) with many examples and stated cases BUT it rarely refers to the "other party" except in a few instances where the term Paramour is used.
As stated in an earlier reply, Adultery was once a Criminal Offence normally punishable by imprisonment (although the early law books don't say who gets the punishment). However should a child have been born from the adultery then it became a Capital Crime (from the 16th Century to early or mid 19th Century) But again the law books simply refer to the Adulterer being punished. The Church while it held the power would on the face of things (Kirk Session Records) be very keen to throw the blame about treating both parties as Fornicators.
By the strict legal definition a single person (i.e. unmarried) cannot commit Adultery.
Added: The "other Party" is also referred to a Particeps Criminis and can be called as a co defender & sued for expenses and damages.
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The definition
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Unfortunately I don’t think there is a simple answer to the question as there are so many variables for example (not exhaustive): was ecclesiastical law involved? which country did the people involved live in? when did the activities take place? (with apologies) potentially what were the detailed sexual activities that took place?
Indeed.
My question was prompted by instances in Scotland, so English law would not have applied, and I was more interested in less recent events, say over 150 years ago. As for the detailed activities, it was a general rather than a specific question, so could have involved different activities in different cases.
As for ecclesiastical law, that's a whole new can of worms. Ecclesiastical or canon law as it applies or applied in England and Wales isn't relevant, and what are sometimes described as 'crimes' in the Kirk Session records are not crimes in the eyes of Scots Law, which stands separate from the kirk.
For example, until 1939 it was always possible to marry by declaration in Scotland, and although the Kirk took exception to this and tried to prevent it, or to fine anyone who had chosen to marry by declaration, the marriage was recognised as valid in the civil courts.
I reckon you are right, and that there isn't a definitive answer.
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It sheds no light at all on the original question, which is, does an unmarried person who has sexual relations with a married person commit adultery or fornication?
Is this necessarily an 'either/or'; might the perpetrator not commit both ?
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Is this necessarily an 'either/or'; might the perpetrator not commit both ?
Context matters.
Strictly speaking (by the definition of the crime) only a married person could commit adultery however social etiquette/beliefs/constraints etc. would almost certainly tar both parties with the same brush.
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Strictly speaking (by the definition of the crime) only a married person could commit adultery
Thank you, this is what I have been trying to get at all along.
Is there a formal definition that makes the distinction clear?
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Caledonian Mercury 15-10-1753:
Thereafter came on the Trial of Alison Inglis, Daughter of --- Inglis at Scone, indicted for Adultery with the deceast George Bruce at Brechin a married Man. After reading the Indictment, she gave in a Petiton praying to be banished Scotland for Life, which the Advocate Depute having consented to, she was banished accordingly, never to return under the usual Certifications.
Her designation suggests she was not married, however, she is indicted for adultery and avoids the death penalty for "notour adultery" by petitioning for banishment instead.
Just quoting myself to draw attention again to an unmarried woman being indicted for the capital crime adultery. The law here certainly treats and punishes her as an adulteress.
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Just quoting myself to draw attention again to an unmarried woman being indicted for the capital crime adultery. The law here certainly treats and punishes her as an adulteress.
Sadly the newspaper article does not provide a definitive answer. On one hand referring to her by her maiden name is quite normal under Scots Law but trying her for Adultery suggests she was married as the law itself states that only a married person can commit adultery (see reply #19).
Her giving birth to a child from the relationship while pushing the "crime" into the Capital Punishment category also suggests that the authorities were perhaps using this as some form of show trial for some reason unknown to us today
There is also the concept of "Particeps Criminis" - Criminal Participant, (used more in Civil Law than in Criminal) which could make her equally liable with the birth of a child from the relationship, given the patriarchal & Misogynistic attitudes often found in Laws (and Lawmakers) of the period.
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Is there a formal definition that makes the distinction clear?
Reply #19 is from Greens Scots Law Encylopedia (1901) and gives the definition of Adultery as a crime (although by 1901 it was more in abeyance than enforced)