CHA P. Roman matrons became the equal and voluntary XLIV. companions of their lords, a new jurisprudence was introduced, that marriage, like other partnerships, might be dissolved by the abidication 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 in-. jury 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 husbands, must cease cease to reverence the chastity of her own per- c H A P. son *. XLIV. Limita Insufficient remedies followed with distant and tardy steps the rapid progress of the evil. The an- tions of the liberty cient worship of the Romans afforded a peculiar god- of Divorce. dess to hear and reconcile the complaints of a married life; but her epithet of Viriplaca, 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; 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 powers of both magi▴ strates, adopted their different modes of repressing or Sic fiunt octo mariti Quinque per autumnos. (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.). + Sacellum Viriplacæ (Valerius Maximus, 1. ii. c. 1.) in the Palatine region appears in the time of Theodosius, in the description of Rome by Publius Victor. Valerius Maximus, 1. ii. c. 9. With some propriety hé judges divorce more criminal than celibacy: illo namque conjugalia sacra spreta tantum, hoc etiam injuriose tractata. XLIV. CHA P. or chastisin the license of divorce. 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 marriageportion. The Christian princes were the first who specified the just causes of a private divorce; their institutions, from Constantine to Justinian, appear to fluctuate between the custom of the empire and the wishes of the church †, 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 See the laws of Augustus and his successors, in Heineccius, ad Legem Papiam Poppæam, c. 19. in Opp. tom. vi. P. i. P. 323-333. Aliæ sunt leges Cæsarum, aliæ Christi; aliud Papinianus, aliud Paulas noster præcipit (Jerom, tom. i. p. 198. Selden, Uxor Ebraica, 1. iii. c. 31. p. 847-853.). profession, were allowed to rescind the matrimonial c H a p. 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*, the theologians were divided †, and the ambiguous word, which contains the precept of Christ, is VOL. VIII. flexible F * The Institutes are silent, but we may consult the Codes of Theodosius (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. exl.). Justinian fluctuated to the last between the civil and ecclesiastical law. † In pure Greek, rogue is not a common word; nor can the proper meaning, fornication, be 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 regru 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. 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, iii. c. 18-22. 28. 31.). XLIV. CHA P. flexible to any interpretation that the wisdom of a XLIV. legislator can demand. Incest, concu bines, and baştards. The freedom of love and marriage was restrained among the Romans by natural and civil impediments. An instinct, almost innate and universal, appears to prohibit the incestuous commerce* 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 The principles of the Roman jurisprudence are exposed by Justinian (Institut. 1. i. tit. x.); and the laws and manners of the different nations of 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. |