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For the legal axiom that an injury is not done to one who knows and wills it ( scienti et volenti non fit injuria ) finds no place when the consent is thus vitiated.
But it may be contended that the consent of the husband lessens the enormity of adultery to the extent that whereas, ordinarily, there is a double malice -- that against the good of human generation and that against the private rights of the husband with the consent of the latter there is only the first-named malice; hence, one having had carnal intercourse with another's wife, her husband consenting, should in confession declare the circumstance of this permission that he may not accuse himself of that of which he is not guilty: In answer to this, it must be said that the injury offered the husband in adultery is done him not as a private individual but as a member of a marital society, upon whom it is incumbent to consult the good of the prospective child.
In the Christian law this discrimination against the wife is emphatically repudiated. Thus, in Massachusetts the adultery of the husband, unlike that of the wife, was not sufficient ground for divorce.
In the law of Jesus Christ regarding marriage the unfaithful husband loses his ancient immunity ( Matthew 19:3-13 ). And the same most likely was the case in Plymouth Plantation (Howard, A History of Matrimonial Institutions, II, 331-351).
The recognized license of the Greek husband may be seen in the following passage of the Oration against Neaera, the author of which is uncertain, though it has been attributed to Demosthenes: "We keep mistresses for our pleasures, concubines for constant attendance, and wives to bear us legitimate children, and to be our faithful housekeepers.
Yet, because of the wrong done to the husband only, the Athenian lawgiver Solon, allowed any man to kill an, adulterer whom he had taken in the act" (Plutarch, Solon).
Thus we are told by the historian Spartianus that Verus, the colleague of Marcus Aurelius, did not hesitate to declare to his reproaching wife: "Uxor enim dignitatis nomen est, non voluptatis." (Verus, V). This Lecky gathers from the legal maxim of Ulpian: "It seems most unfair for a man to require from a wife the chastity he does not himself practice" (Cod.
Such consent, therefore, as subversive of the good of human generation, becomes juridically void.
It cannot, therefore, be adduced as a ground for the doctrine set forth in the condemned proposition above mentioned.
Considering now the act in itself, adultery, forbidden by the sixth commandment, has in it a twofold malice, In common with fornication it violates chastity, and it is, besides, a sin against justice.
Drawing a distinction between these two elements of malice, certain casuists, early in the seventeenth century, declared that intercourse with a married woman, when her husband gave his consent, constituted not the sin of adultery, but of fornication.