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Some have imagined that this unrestrained liberty in the dissolution of marriage is a main ingredient in civil comfort; but we shall have abundant occasion, in remarking on the results of it, particularly in the case of the Roman people, to observe its contrary tendency. And this part of the Essay, on the Hebrew Divorces, cannot be better closed than in the elegant and expressive sentiment of the Rabbi Eleazer:-" Tears shall bedew that altar which witnesses the hasty dissolution of the marriage vow.'
.כל המגרש אשתי ראשונה אפילו מזבה מוריך עליו במעות
"Quisquis repudiaverit temere uxorem suam primam, etiam altare lachrymos ob eum effundit."
THE second branch of this Essay respects the laws and customs which prevailed among the most celebrated of the ancient nations, on the subjects of Adultery and Divorce, which appear to have strangely varied at different periods of time.
Fidelity to the marriage bed has ever been considered, especially on the part of the woman, one of the most essential obligations of the matrimonial compact, and the wisdom of the best legislators will be discovered in following its violation by some punishment; but these punishments will generally appear to have reference to the manner in which the acquisition of the wife was obtained by the customs of different nations; and the relative value stamped upon the female sex by civilization and the refinement of manners.
Ancient Greece shall be considered first. In the heroic ages, while revenge was almost the only principle that actuated the Greeks, Adultery was frequently punished by murder; but it is not to be wondered at, that a crime like this, inflicting such a wound on domestic enjoyment, should often prompt a man to take the punishment of it into his own hands. When Thyestes, son of Pelops, King of Mycene and Argos, had seduced the wife of his brother Atreus, Atreus invited him to a feast, and entertained him with the flesh of his two children, Tantalus and Plisthenes ; and their father, fearing some further violence, made his escape.
From certain passages in Homer,* it would appear, that the adulterer was sometimes stoned, or pressed to death. The wealthy delinquent was however allowed to redeem himself with money, which was called by the disgraceful, but expressive term, poxapela, and was paid to the husband of the adulteress. The woman's father, also, returned all the dowry which he might have received (according to the custom of those times) from her husband. These practices belonged to the earliest ages, in which another punishment
7. the punishment called haïros xitwr, a stone coat.
was also adopted, that of putting out the the adulterer's eyes, either thus to extinguish the fire which had enflamed so destructively, or to stop the avenues by which temptation might again enter. This latter custom the Locrians observed in later ages, and a memorable instance of it is afforded in the case of Zaleucus their lawgiver,* who executed it with the utmost rigour, although the offender was his own son; but the feelings of the father conflicting with the sternness of the judge, he redeemed one of his son's eyes by putting out one of his own, and thus became as memorable for his mercy as he was for his justice.†
But the first who is said to have enacted a law, and instituted punishments against Adultery, was one Hyettus, an inhabitant of Argos. With a barbarity, characteristic of his age, he delivered the offenders up to the power of
* Valerius Maximus and Ælianus.
+ Owing to the similarity of names, (a circumstance which is found, not seldom, to originate such mistakes,) this anecdote is stated, by some writers, of" Seleucus Nicanor, who succeded Alexander in the government of Syria, and (as they say) decreed this exoculation against the adulterer, and first impartially executed it on his own son."
the man who detected them, who might dismember, or murder, or treat them in any manner he might think best.
A discretion somewhat similar to this was afterwards authorized by the laws of Solon. According to the statement of Lysias, if any one were imprisoned on suspicion of Adultery, he might appeal to the Thesmothetæ, and, if he was acquitted of the crime, he was to be discharged; but, if guilty, he was to give sureties for his future chastity, and punished according to the discretion of the judges. This supposes that their authority to punish was restrained within the limits of the vitæ et necis potestas.
The Greek writers have mentioned a remarkable kind of infliction, employed as the punishment of this offence. It is chiefly to be collected from passages in Lucian, Diogenes Laertius, † and Vossius.
that of impaling the offender with a radish, or a fish called the mugilis, or mullet.
Ραφανιδι την πυγήν βεβυσμένος. Lucian.
† Προς τον μοιχον εφη, αγνοεις οτι ου μονον-εχει χρηστον, αλλα και papandes. Diog. Laert.
I Tiμwgos μorxar paparos. Voss. in Notes on Catullus.