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she had defiled his bed; and if he did not put her away, but allowed his returning affection to prompt a condonation, he was to be termed, atiμos, infamous.
A few remarks are necessary on the permission of this liberty of Divorce to the women. It is supposed that the Grecian laws did not generally allow this liberty, but it is clear that the Athenians permitted the wives to separate from their husbands. They have express provisions on the subject. From a passage in Euripides, it would seem, that it was thought a scandalous thing for a woman to do so, except on very strong grounds. In that case a Bill of her Grievances was to be presented to the Archon, f called Γραμματα απολείψεως, and this with her own hand.
The terms employed to describe the cases of the husband's parting from his wife, and the wife's leaving her husband, are significantly varied. The former was said to loose the obligation, (απολευιν,) to dismiss; (αποπεμ
Ου γαρ ευκλεεις απαλλαγαι
Γυναιξαν, ουδ' οιον τ' ανηνασθαι ποσιν.
+ Grotius, on the Institute of Justinian, has this remark: "Athenia mulier quæ repudium marito dare volebat, ipsa eâ de re instrumentum ad magistratum deferre debebat." Grotius. Instit. Justin.
TE,) to send away, (apievai,) to cast out, (εκβαλλειν ;) but the wife's was merely απολειπEv, to depart, or leave; and the reason is immediately obvious,—the woman was received into the man's family, and therefore she could not be said to аTоTEμTE, send him away, αποπεμπειν, though she might arose, forsake him, and retire to a scene of greater ease and security.
Of this power of the woman, Hipparete, the wife of Alcibiades, is an instance. Plutarch relates, that, impatient of the injuries done to her marriage bed, this virtuous lady departed from her husband, and retired to her brother's house, but she was obliged, by the law, to deliver to the Archon the instrument whereby she sought a Divorce.*
Isæus mentions, in these cases of the wife's forsaking her husband, that a return of dowry was customary.
From all these facts it appears, that the Greeks had not that sense of the binding nature of the marriage vow which appeared in the consideration of the Jewish code; that Divorce was permitted for more trifling causes; that the punishment of Adultery was not capital, except where the parties were caught in
* Plut. in Vità Alcibiadis.
flagrante delicto, and that the liberty of Divorce was, by custom, distinctly allowed to the women. In these respects, there was a wide difference between the Grecian customs and the Israelitish: yet the provision and requirement of a Bill of Divorce, the terms of this Bill, γυναι πραττε τα συα, Οr τα σεαυτου πραττε, uxor res tuas age, &c.; and the making the personal delivery of this Bill part of a judicial proceeding necessary to its validity, tend to assimilate it to the case of the Hebrew enactments.
But we pass to the consideration of the view taken of these matters by the Romans.
In the earliest ages of Rome we have accounts neither of the crime of Adultery, nor the use of Divorce; but, as the prosperity of this people introduced a profligacy of manners before unknown, this crime became one of the features of their moral history, and severe enactments were framed respecting it. Laws had indeed always existed on the subject of Divorce, but we shall (as before) first speak of the crime of Adultery.
Several of the Latin poets have made allusion to this crime, from which we may infer that some of the penal consequences which
it entailed on the offender, were of a nature peculiarly disgraceful. The passages are so offensively constructed by the impure imaginations of the writers, that delicacy will not admit of their being cited; it must be sufficient to refer to them. See Plautus, in his Pœnulus, scen. 2. act 4, ver. 40; where his Syncerastus is introduced, saying, Facio," &c. Phædrus, Fab. xi. lib. iii., which proves the rule, Quæ venit ex merito deformitas dolenda venit," as consolation to the eunuch, still marking a certain painful demembration as the punishment of this offence. See also Horace, Sat. 2. lib. 1. ver. 44.*
Terence, however, whether he felt on this occasion more modesty than Plautus, certainly refrains from those offensive minutiæ of description, which deform the pages of the other writers. He speaks of the criminal, as bound hand and foot, and prepared to receive the customary punishment of adulterers. ("Pars quâ peccatum est resecari.”)†
Valerius Maximus relates two examples of this punishment.‡
* Plautus, in his Pœnulus, scen. 2. act 4, ver. 40. Phædrus, Fab. xi. lib. 3. Horace, Sat. 2. lib. 1. ver. 44. Terence. Eunuchus, Act v. Scene v. verse 3.
Minitatur quod mochis solet."
+ Val. Max. lib. vi. cap. i. n. 13.
Diodorus Siculus mentions, that the ancient laws of Egypt made the same provision, though it was for the rape of a virgin, or the violation of a woman, (προσέταξαν αποκοπτεσθαι τα αίδοια.) The punishment of Adultery was to the adulterer whipping, and to the adulteress, cutting off her nose, in order, doubtless, that such a mutilation of her features might prevent the inducement of a repetition of the crime.
Probably, this severe, but not inappropriate punishment (the loss of the offending member) was one rather permitted to be inflicted by the indignant and injured husband, who might have discovered the guilty parties in the act, than one prescribed and executed by the laws. At the same time, it must be remarked, that some nations, in legislating on these subjects, have awarded this as the punishment of less injurious criminal indulgences. It certainly was the penalty attached in the criminal code of Justinian, to those found guilty of sodomitical practices, and the reasoning by which Zoneras justifies it, as "pœnam plane convenientem," by analogy to the punishment of sacrilege, "Quid enim? Si sacrilegium commississent nonne eis manus amputassem," &c. makes the explanation of the infliction sufficiently plain. On the same analogy, one of King Edgar's