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of this liberty to their women; and we find that this was one of the alterations in the code of Romulus, imported from Athens, and made one of the laws of the twelve tables. The manners of the people had compelled an extension of the original restrictions. And Cicero, in his second Philippic, refers to the new laws as enlarging the freedom of separation. "Mimam suam res suas sibi habere jussit, et ex duodecim tabulis causam addidit. Claves ademit, forasque exegit.' "* An increased facility was thus afforded to Divorce, the policy of which was very questionable; and the proof of this afterwards appeared sufficiently evident.
On the joint testimony of Dionysius Halicarnassus, Valerius Maximus, and Aulus Gellius, we learn that no instance of Divorce occurred, till upwards of five centuries after the foundation of Rome. It was that of Spurius Carvilius Ruga, when Marcus Attilius Balbus, and Publius Valerius, (or as others affirm, Manlius Torquatus,) were Consuls. †
Cic. Philip. ii. 28. Opera, Tom. v. p. 1988. Edit. Gronovii.
† Dion. Halicar. lib. 2. Valer. Max. lib. 2. c. 4. Aul. Gellius. lib. 4. c. 3.
The cause of this separation was his wife's sterility; and the occasion of it appears to have been, a census taken of the Roman population, when a considerable diminution being observed, the causes of it were believed to be, that the men married only with a view to interest, and, afterwards deserting their wives, carried on unlawful intrigues with other women; to remedy which, the censors obliged the citizens to swear that they would not marry with any other view than that of increasing the subjects of the government.* This oath raised many scruples, and caused many ruptures between husbands and wives; among whom was Ruga, a man of distinction, who thought himself bound to divorce his wife, whom he passionately loved, because of her barrenness, and he accordingly put her away, and married another, and the Divorce was unimpeached by the law.
It is said, he was hated by the people for this act; but Montesquieu attributes this circumstance to the aversion which they felt towards the censors for their interference in this matter, which they considered as a step towards arbitrary power. "C'etoit un joug
See Anc. Univ. Hist. vol. 12. p. 164.
que le peuple voyoit que les censeurs alloient mettre sur lui."*
No fact in history has perhaps excited a wider difference of opinions than this. Some have questioned its truth, and those who have admitted it, have placed the most varying interpretations on it. Montesquieu, in the former part of the chapter just referred to, first attempts to disbelieve it, and then wishes to account for it on other principles than the mere force of virtue among that people in the early part of their history. "Il ne me paroit (he says) vraisemblable,” and soon after adds, if it were so, that this really had been the first instance of Divorce, it is to be ascribed to the fine which was imposed on Divorce by the laws of Romulus, the moiety of the husband's estate to the wife, the other offered to the goddess Ceres, and which fine Ruga was the first who thought it worth while to pay. But these fines were very doubtful, at least as carried to such an extent; and it is difficult to arrive at certainty respecting them. One provision of them shows the imperfect account which we retain of them, the sacrifice which was decreed to the terrestrial deities. Gibbon very properly asks, where
Montesq. Esp. Loix, lib. xvi. cap. 16.
this sacrifice from the husband's estate was to come from, as the two moieties had already been disposed of. This strange law must either have been imaginary or transient.
On the case of Ruga this elegant writer notices the lavish eulogiums which the rigidness of their laws, and the exemplary abstinence of the people, have received for the absence of any case in which this tempting privilege of Divorce was indulged for a space of so many years; but he considers the fact as speaking an equivocal language; and he contends that it proves the inequality of those terms on which the connexion of husband and wife was formed, and the undue power conferred on the one, with the state of oppressed subjection of the other. "The slave, unable to renounce her tyrant; the tyrant, unwilling to relinquish his slave." It may be remarked, however, that the story of Lucretia lends confirmation to the account of the early purity of the Roman people.
We have said, that in later times the privilege of Divorce was extended to the women, and they could sue out a sentence of separation, and live alone as well as the men. It was when the Roman matrons became
• Gibbon's Decline and Fall, vol. viii. p. 61.
the equal and voluntary companions of their lords, that new regulations were introduced into their civil jurisprudence, and marriage was held to be dissoluble by the abdication of either party.
In the course of a few centuries, in which the prosperity of conquest succeeded to the privations and struggles of the previous ages, and introduced corruption and profligacy in its train, this permission was enlarged to a most mischievous extent. The great crime for which separation was to be justified had multiplied in an alarming manner; for, when the Emperor Severus mounted the throne, no less than three thousand prosecutions for Adultery had been commenced, and were then pending; but, besides this, on the most trivial pretences, caprice, interest, passion, discovered daily motives (reasons they could not be
* Juvenal and Martial both allude to the possession of this power by the women. The former, in his Sat. ix. v. 74;
"Fugientem sæpe puellam
Amplexu rapui, tabulas quoque fregerat et jam
The latter, in his 39th Epigram, lib. x. :
"Mense Novo Jani veterem Proculeia maritum