XLIV. wretched female was hopeless and perpetual, unless he asserted for his own convenience the manly prerogative of divorce. The warmest applause has been lavished on the virtue of the Romans, who abstained from the exercise of this tempting privilege above five hundred years: 124 but the same fact evinces the unequal terms of a connection in which the slave was unable to renounce her tyrant, and the tyrant was unwilling to relinquish his slave. When the Roman matrons became the equal and voluntary companions of their lords, a new jurisprudence was introduced, that marriage, like other partnerships, might be dissolved by the abdication of one of the associates. In three centuries of prosperity and corruption, this principle was enlarged to frequent practice and pernicious abuse. Passion, interest, or caprice, suggested daily motives for the dissolution of marriage; a word, a sign, a message, a letter, the mandate of a freedman, declared the separation; the most tender of human connections was degraded to a transient society of profit or pleasure. According to the various conditions of life, both sexes alternately felt the disgrace and injury: an inconstant spouse transferred her wealth to a new family, abandoning a numerous, perhaps a spurious, progeny to the paternal authority and care of her late husband; a beautiful virgin might be dismissed to the world, old, indigent, and friendless; but the reluctance of the Romans, when they were pressed to marriage by Augustus, sufficiently marks, that the prevailing institutions were least favourable to the males. A specious theory is confuted by this free and perfect experiment, which demonstrates, that the liberty of divorce does not contribute to happiness and virtue. The facility of separation would destroy all mutual confidence, and inflame every trifling dispute: the minute difference between an husband and a stranger, which might so easily be removed, might still more easily be forgotten; and the matron, who in five years can submit to the embraces of eight hus 124 In the year of Rome 523, Spurius Carvilius Ruga repudiated a fair, a good, but a barren, wife (Dionysius Hal. 1. ii. p. 93. Plutarch, in Numa, p. 141. Valerius Maximus, l. ii. c. 1. Aulus Gellius, iv. 3). He was questioned by the censors, and hated by the people; but his divorce stood unimpeached in law. bands, must cease to reverence the chastity of her own person.125 CHAP. XLIV. Insufficient remedies followed with distant and tardy Limitasteps the rapid progress of the evil. The ancient worship by of liberty of the Romans afforded a peculiar goddess to hear and divorce. reconcile the complaints of a married life; but her epithet of Viriplaca,126 the appeaser of husbands, too clearly indicates on which side submission and repentance were always expected. Every act of a citizen was subject to the judgment of the censors; the first who used the privilege of divorce assigned, at their command, the motives of his conduct;127 and a senator was expelled for dismissing his virgin spouse without the knowledge or advice of his friends. Whenever an action was instituted for the recovery of a marriage-portion, the prætor, as the guardian of equity, examined the cause and the characters, and gently inclined the scale in favour of the guiltless and injured party. Augustus who united the power of both magistrates, adopted their different modes of repressing or chastising the license of divorce.12 The presence of seven Roman witnesses was required for the validity of this solemn and deliberate act: if any adequate provocation had been given by the husband, instead of the delay of two years, he was compelled to refund immediately, or in the space of six months; but if he could arraign the manners of his wife, her guilt or levity was expiated by the loss of the sixth or eighth part of her marriage-portion. The Christian princes were the first who specified the just causes of a private divorce; their institutions, from (Juvenal, Satir. vi. 20.) A rapid succession, which may yet be credible, as well as the non consulum numero, sed maritorum annos suos computant, of Seneca (de Beneficiis, iii. 16). Jerom saw at Rome a triumphant husband bury his twenty-first wife, who had interred twenty-two of his less sturdy predecessors (Opp. tom. i. p. 90. ad Gerontiam). But the ten husbands in a month of the poet Martial, is an extravagant hyperbole (1. vi. epigram 7). 126 Sacellum Viriplace (Valerius Maximus, I. ii. c. 1.) in the Palatine region appears in the time of Theodosius, in the description of Rome by Publius Victor. 127 Valerius Maximus. I. ii. c. 9. With some propriety he judges divorce more criminal than celibacy: illo namque conjugalia sacra spreta, tantum, hoc etiam injuriose tractata. 128 See the laws of Augustus and his successors, in Heineccius, ad Legem Papiam Poppæam, c. 19. in Opp. tom. vi. P. i. p. 323...335. VOL. V. Y Y CHAP. Constantine to Justinian, appear to fluctuate between the custom of the empire and the wishes of the church,129 and the author of the Novels too frequently reforms the jurisprudence of the Code and Pandects. In the most rigorous laws, a wife was condemned to support a gamester, a drunkard, or a libertine, unless he were guilty of homicide, poison, or sacrilege, in which cases, the marriage, as it should seem, might have been dissolved by the hand of the executioner. But the sacred right of the husband was invariably maintained to deliver his name and family from the disgrace of adultery: the list of mortal sins, either male or female, was curtailed and enlarged by successive regulations, and the obstacles of incurable impotence, long absence, and monastic profession, were allowed to rescind the matrimonial obligation. Whoever transgressed the permission of the law, was subject to various and heavy penalties. The woman was stript of her wealth and ornaments, without excepting the bodkin of her hair: if the man introduced a new bride into his bed, her fortune might be lawfully seized by the vengeance of his exiled wife. Forfeiture was sometimes commuted to a fine; the fine was sometimes aggravated by transportation to an island, or imprisonment in a monastery: the injured party was released from the bonds of marriage; but the offender, during life or a term of years, was disabled from the repetition of nuptials. The successor of Justinian yielded to the prayers of his unhappy subjects, and restored the liberty of divorce by mutual consent: the civilians were unanimous,130 the theologians were divided,13 129 Alix sunt leges Cæsarum, aliæ Christi; aliud Papinianus, aliud Paulus noster præcipit (Jerom, tom. i. p. 198. Selden, Uxor Ebraica, 1. iii. c. 31. p. 847. 853). 130 The Institutes are silent, but we may consult the Codes of Theodosus (1. iii. tit. xvi. with Godefroy's Commentary, tom. i. p. 310...315.) and Justinian (1. v. tit. xvii), the Pandects (1. xxiv. tit. ii.) and the Novels (xxii. cxvii. cxxvii. cxxxiv. cxl). Justinian fluctuated to the last between civil and ecclesiastical law. 131 In pure Greek, Topvela is not a common word; nor can the proper meaning, fornication, he strictly applied to matrimonial sin. In a figurative sense, how far, and to what offences, may it be extended? Did Christ speak the Rabbinical or Syriac tongue? Of what original word is opret the translation? How variously is that Greek word translated in the versions ancient and modern! There are two (Mark, x. 11. Luke, xvi. 18.) to one (Matthew, xix. 9.) that such ground of divorce was not excepted by Jesus. and the ambiguous word, which contains the precept of CHAP. Christ, is flexible to any interpretation that the wisdom of a legislator can demand. XLIV. cubines, The freedom of love and marriage was restrained Incest, con. among the Romans by natural and civil impediments..... and basAn instinct, almost innate and universal, appears to pro- tarus. hibit the incestuous commerce 132 of parents and children in the infinite series of ascending and descending generations. Concerning the oblique and collateral branches, nature is indifferent, reason mute, and custom various and arbitrary. In Egypt, the marriage of brothers and sisters was admitted without scruple or exception: a Spartan might espouse the daughter of his father, an Athenian, that of his mother; and the nuptials of an uncle with his niece were applauded at Athens as an happy union of the dearest relations. The profane lawgivers of Rome were never tempted by interest or superstition to multiply the forbidden degrees; but they inflexibly condemned the marriage of sisters and brothers, hesitated whether first cousins should be touched by the same interdict; revered the parental character of aunts and uncles, and treated affinity and adoption as a just imitation of the ties of blood. According to the proud maxims of the republic, a legal marriage could only be contracted by free citizens; an honourable, at least an ingenuous birth, was required for the spouse of a senator: but the blood of kings could never mingle in legitimate nuptials with the blood of a Roman; and the name of Stranger degraded Cleopatra and Berenice,133 to live the concubines of Mark Antony and Titus.134 Some critics have presumed to think, by an evasive answer, he avoided the giving offence either to the school of Sammai or to that of Hillel (Selden, Uxor Ebraica, 1. iii. c. 18...22. 28. 31). 132 The principles of the Roman jurisprudence are exposed by Justinian (Institut. 1. i. tit. x); and the laws and manners of the different nations ef antiquity concerning forbidden degrees, &c are copiously explained by Dr. Taylor in his Elements of Civil Law (p. 108.314...339), a work of amusing, though various, reading; but which cannot be praised for philosophical precision. 133 When her father Agrippa died (A. D. 44). Berenice was sixteen years of age (Joseph. tom. i. Antiquit. Judaic. 1. xix. c. 9. p. 152. edit. Havercamp). She was therefore above fifty years old when Titus (A. D. 79), invi as invitam invisit. This date would not have adorned the tragedy or pastoral of the tender Racine. 134 The Egyptia conjunx of Virgil (Æneid, viii. 638.) seems to be nun CHAP. Guardians and wards, This appellation, indeed so injurious to the majesty, cannot without indulgence be applied to the manners, of these Oriental queens. A concubine, in the strict sense of the civilians, was a woman of servile or plebeian extraction, the sole and faithful companion of a Roman citizen, who continued in a state of celibacy. Her modest station below the honours of a wife, above the infamy of a prostitute, was acknowledged and approved by the laws: from the age of Augustus to the tenth century, the use of this secon dary marriage prevailed both in the West and East, and the humble virtues of a concubine were often preferred to the pomp and insolence of a noble matron. In this connection, the two Antonines, the best of princes and of men, enjoyed the comforts of domestic love: the example was imitated by many citizens impatient of celibacy, but regardful of their families. If at any time they desired to legitimate their natural children, the conversion was instantly performed by the celebration of their nuptials with a partner whose fruitfulness and fidelity they had already tried. By this epithet of natural, the offspring of the concubine were distinguished from the spurious brood of adultery, prostitution, and incest, to whom Justinian reluctantly grants the necessary aliments of life; and these natural children alone were capable of succeeding to a sixth part of the inheritance of their reputed father. According to the rigour of law, bastards were entitled only to the name and condition of their mother, from whom they might derive the character of a slave, a stranger, or a citizen. The outcasts of every family were adopted without reproach as the children of the state.135 The relation of guardian and ward, or in Roman words of tutor and pupil, which covers so many titles of the Institutes and Pandects,136 is of a very simple and uniform bered among the monsters who warred with Mark Antony against Augustus, the senate and the gods of Italy. 135 The humble but legal rights of concubines and natural children, are stated in the Institutes (1. i. tit. x), the Pandects (1. i. tit. vii), the Code (1. v. tit. xxv), and the Novels (Ixxiv. lxxxix). The researches of Heineccius and Giannone (ad Legem Juliam et Papiam-Poppæam, c. iv. p. 164...175. Opere Posthume, p. 108...158.) illustrate this interesting and domestic subject. 136 See the article of guardians and wards in the Institutes (1. i. tit. |