Liberty and abuse of divorce

and their ambition was unsuccessfully resisted by the gravity of Cato the Censor.121 They declined the solemnities of the old nuptials, defeated the annual prescription by an absence of three days, and, without losing their name or independence, subscribed the liberal and definite terms of a marriage-contract. Of their private fortunes they communicated the use, and secured the property; the estates of a wife could neither be alienated nor mortgaged by a prodigal husband; their mutual gifts were prohibited by the jealousy of the laws; and the misconduct of either party might afford, under another name, a future subject for an action of theft. To this loose and voluntary compact, religious and civil rites were no longer essential; and, between persons of a similar rank, the apparent community of life was allowed as sufficient evidence of their nuptials. The dignity of marriage was restored by the Christians, who derived all spiritual grace from the prayers of the faithful and the benediction of the priest or bishop. The origin, validity, and duties of the holy institution were regulated by the tradition of the synagogue, the precepts of the gospel, and the canons of general or provincial synods; 122 and the conscience of the Christians was awed by the decrees and censures of their ecclesiastical rulers. Yet the magistrates of Justinian were not subject to the authority of the church: the emperor consulted the unbelieving civilians of antiquity, and the choice of matrimonial laws in the Code and Pandects is directed by the earthly motives of justice, policy, and the natural freedom of both sexes.123

Besides the agreement of the parties, the essence of every rational contract, the Roman marriage required the previous approbation of the parents. A father might be forced by some recent laws to supply the wants of a mature daughter; but

121 On the Oppian law we may hear the mitigating speech of Valerius Flaccus and the severe censorial oration of the elder Cato (Liv. xxxiv. 1-8). But we shall rather hear the polished historian of the eighth, than the rough orators of the sixth, century of Rome. The principles, and even the style, of Cato are more accurately preserved by Aulus Ĝellius (x. 23).

123 For the system of Jewish and Catholic matrimony, see Selden (Uxor Ebraica, Opp. vol. ii. p. 529-860), Bingham (Christian Antiquities, 1. xxii.), and Chardon (Hist. des Sacremens, tom. vi.).

123 The civil laws of marriage are exposed in the Institutes (1. i. tit. x.), the Pandects (1. xxiii. xxiv. xxv.), and the Code (1. v.); but, as the title de ritu nuptiarum is yet imperfect, we are obliged to explore the fragments of Ulpian (tit. ix. p. 590, 591), and the Collatio Legum Mosaicarum (tit. xvi. p. 790, 791), with the Notes of Pithoeus and Schulting. They find, in the commentary of Servius (on the 1st Georgic and the 4th Æneid), two curious passages.

even his insanity was not generally allowed to supersede the necessity of his consent. The causes of the dissolution of matrimony have varied among the Romans; 124 but the most solemn sacrament, the confarreation itself, might always be done away by rites of a contrary tendency. In the first ages, [Diffarreatio) the father of a family might sell his children, and his wife was reckoned in the number of his children; the domestic judge might pronounce the death of the offender, or his mercy might expel her from his bed and house; but the slavery of the 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; 125 but the same fact evinces the unequal terms of a connexion 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 connexions 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 con

124 According to Plutarch (p. 57), Romulus allowed only three grounds of a divorce-drunkenness [leg. poisoning her children; papuakeía Tékvwv], adultery, and false keys. Otherwise, the husband who abused his supremacy forfeited half his goods to the wife, and half to the goddess Ceres, and offered a sacrifice (with the remainder?) to the terrestrial deities. This strange law was either imaginary er transient. [Life of Romulus, c. 22.]

125 In the year of Rome 523, Spurius Carvilius Ruga repudiated a fair, a good, but a barren wife (Dionysius Hal. 1. ii. p. 93 [c. 25], Plutarch. in Numâ, 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.

Limitations of the liberty of divorce

futed 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 to reverence the chastity of her own person. 126

Insufficient remedies followed with distant and tardy steps the rapid progress of the evil. The ancient worship of the Romans afforded a peculiar goddess to hear and reconcile the complaints of a married life; but her epithet of Viriplaca,127 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; 128 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 magistrates, adopted their different modes of repressing or chastising the licence of divorce. 129 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

(Juvenal, Satir. vi. 20

Quinque per autumnos. 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).

127 Sacellum Viriplaca (Valerius Maximus, 1. ii. c. 1) in the Palatine region appears in the time of Theodosius, in the description of Rome by Publius Victor. 128 Valerius Maximus, 1. ii. c. 9. With some propriety he judges divorce more criminal than celibacy: illo namque conjugalia sacra spreta tantum, hoc etiam injuriose tractata.

129 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.

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 Constantine to Justinian, appear to fluctuate between the custom of the empire and the wishes of the church; 130 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,131 the theologians were divided,132 and the am

130 Aliæ sunt leges Cæsarum, aliæ Christi; aliud Papinianus, aliud Paulus noster præcipit (Jerom, tom. i. p. 198. Selden, Uxor Ebraica, 1. iii. c. 31, p. 847853).

131 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. cxl.). Justinian fluctuated to the last between the civil and ecclesiastical law.

132 In pure Greek, Topveta 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 #opveía 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 accepted 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, 1. iii. c. 18-22, 28, 31).

VOL. IV.

31

Incest, conbastards

biguous word, which contains the precept of Christ, is flexible an to any interpretation that the wisdom of a legislator can demand te The freedom of love and marriage was restrained among the b cubines, and Romans by natural and civil impediments. An instinct, almost cu innate and universal, appears to prohibit the incestuous commerce 133 of parents and children in the infinite series of ascend-be ing and descending generations. Concerning the oblique and collateral branches, nature is indifferent, reason mute, and custom various and arbitrary. In Egypt, the marriage of th 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 a 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 paternal 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 134 to live the concubines of Mark Antony and Titus. 135 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

133 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.

134 When her father Agrippa died (A.D. 44), Berenice was sixteen years of age (Joseph. tom. i. Antiquit. Judaic. 1. xix. c. 9, p. 952, edit. Havercamp). She was therefore above fifty years old when Titus (A.D. 79) invitus invitam invisit. This date would not have adorned the tragedy or pastoral of the tender Racine.

135 The Egyptia conjunx of Virgil (Æneid, viii. 688) seems to be numbered among the monsters who warred with Mark Antony against Augustus, the senate, and the gods of Italy.

2