Definition of adulterer/adulteress

[RJ_Paton]

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.

[RJ_Paton]

The definition

[Forfarian]

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.

[Andrew Tarr]

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 ?

[RJ_Paton]

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.

[Forfarian]

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?

[GR2]

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.

[RJ_Paton]

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.

[RJ_Paton]

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)