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a judge to an accuser; and the magistrates were enjoined by Severus Alexander to hear his complaints and execute his sentence. He could no longer take the life of a son without incurring the guilt and punishment of murder; and the }. of parricide, from which he had been excepted by the ompeian law, were finally inflicted by the justice of Constantine.” The same protection was due to every period of existence; and reason must applaud the humanity of Paulus, for imputing the crime of murder to the father who strangles, or starves, or abandons his new-born infant; or exposes him in a public place to find the mercy which he himself had denied. But the exposition of children was the prevailing and stubborn vice of antiquity: it was sometimes prescribed, often permitted, almost always practised with impunity, by the nations who never entertained the Roman ideas of o power; and the dramatic poets, who appeal to the uman heart, represent with indifference a popular custom which was palliated by the motives of economy and compassion.” If the father could subdue his own feelings, he might escape, though not the censure, at least the chastisement, of the laws; and the Roman empire was stained with the blood of infants, till such murders were included, by Valentinian and his colleagues, in the letter and spirit of the Cornelian law. The lessons of jurisprudence” and Christianity had been insufficient to eradicate this inhuman practice, till their gentle influence was fortified by the terrors of capital punishment.” Experience has proved, that savage are the tyrants of the female sex, and that the condition of women is usually softened by the refinements of social life. In the hope of a robust progeny, Lycurgus had delayed the season of marriage : it was fixed by Numa at the tender age of twelve years, that the Roman husband might educate to his will a pure and obedient virgin.” According to the custom of antiquity, he bought his bride of her parents, and she ful. filled the coemption by purchasing, with three pieces of copper, a just introduction to his house and household deities. A sacrifice of fruits was offered by the pontiffs in the pres. ence of ten witnesses; the contracting parties were seated on the same sheep-skin; they tasted a salt cake of far or rice; and this confarreation,” which denoted the ancient food of Italy, served as an emblem of their mystic union of mind and body. But this union on the side of the woman was rigorous and unequal; and she renounced the name and worship of her father's house, to embrace a new servitude, decorated only by the title of adoption: a fiction of the law, neither rational nor elegant, bestowed on the mother of a family” (her proper appellation) the strange characters of sister to her own children, and of daughter to her husband or master, who was invested with the plenitude of paternal power. By his judgment or caprice her behavior was approved, or censured, or chastised; he exercised the jurisdiction of life and death ; and it was allowed, that in the cases of adultery or drunkenness,” the sentence might be properly inflicted. She acquired and inherited for the sole profit of her lord; and so clearly was woman defined, not as a person, but as a thing, that, if the original title were deficient, she might be claimed, like other movables, by the use and possession of an entire year. The inclination of the Roman husband discharged or withheld the conjugal debt, so scrupulously exacted by the Athenian and Jewish laws : * but as holygamy was unknown, he could never admit to his bed a fairer or more favored partner. After the Punic triumphs, the matrons of Rome aspired to the common benefits of a free and opulent republic; their wishes were gratified by the indulgence of fathers and lovers, and their ambition was unsuccessfully resisted by the gravity of Cato the Censor.” They declined the solem, nities 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 com|. religious and civil rights were no longer essential; and, etween 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; ” 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.”
11. The Pompeian and Cornelian laws de sicariis and parricidis are repeated or rather abridged, with the last supplements of Alexander Severus, Constantine, and Valentinian, in the Pandects (1. xlviii. tit. viii., ix.), and Code (l. ix. tit. xvi. xvii.) See likewise the Theodosian Code (l. ix, tit. xiv. xv.), with Godefroy's Commentary (tom. iii. pp. 84-113), who pours a flood of ancient and modern learn. ing over these penal laws. * When the Chromes of Terence reproaches his wife for not obeying his orders and exposing their infant, he speaks like a father and a master, and silences § ouple. of a foolish woman. See Apuleius (Metamorph. 1. x. p. 337, edit Del. Ill). W * The opinion of the lawyers, and the discretion of the magistrates, had in. troduced, in the time of Tacitus, some legal restraints, which might Support his contrast of the bani mores of the Germans to the bonae leges alibi-that is to say At Rome (de Moribus Germanorum, c. 19), Tertullian (ad Nationes, i. i. c. 15) reà. his own charges, and those of his brethren, against the heathen jurispru. ence. * The wise and humane sentence of the civilian Paul (l. ii Sententiarum in Pandect. l. xxv. tit. iii. leg; 4) is represented as a mere moral precept by Gerard Noodt (Opp. tom. i. in Julius Paulus, pp. 567–588, and Amica Responsio, pp 591606), who maintains the opinion of Justus, Lipsius (Opp. tom. ii. p. 409, ad Belgas. “ont. i. epist. 85), and as a positive binding law by Bynkershoek (de jure oc“idendi Liberos, Opp. tom. i. pp. 318-340. Curae Secundae, pp. 391.327), in a !. but angry controversy, the two friends deviated into the opposite exrennes.
115 Dionys. Hal. 1. ii. pp. 92, 93. Plutarch, in Numa, pp. 140,141. To oroua xat To #60s ko.6apov kat à8wkrov ent two yaudiovro Yeved 8aw. 110 Among the winter frumenta, the triticum, or bearded wheat; the siligo, or the unbearded ; the far, adorea. oryza, whose description perfectly tallies with the rice of Spain and Italy. I adopt this identity on the credit of M. Paucton in his useful and laborious Métrologie (p. 517-529). 117 Aulus Gellius (Noctes Atticae, xviii. 6) gives a ridiculous definition of AElius Melissus, Matrona, quae semel materfamilias quae saepius peperit, as porcetra and scropha in the sow kind. He then adds the genuine meaning. quae in matrimonium vel in manum convenerat. * It was enough to have tasted wine, or to have stolen the key of the cellar (Plin. Hist. Nat. xiv. 14) 119 Solom requires three payments per month. By the Misna, a daily debt was imposed on an idle. vigorous, young husband ; twice a week on a citizen; once on a peasant; once in thirty days on a camel-driver ; once in six months on a seaman. But the student or doctor was free from tribute : and no wife. if she received a weekly sustenance, could sue for a divorce; for one week a vow of abstinence was allowed Polvoamy divided, without multiplying, the duties of the husiand (Seiden. Úxor Ébraica, i. iii. c. 6, in his works; Voloi, PR. To 130 on the Oppian law we may hear the mitigating speech of Walerius ...i and the severeoensorial oration of the elder Cato (I iv. xxxiv. 1-8). But we sho! rather hear the polished historian of the eighth, than th9 rough orators of the sixth our of Rome. The principies, and even the style, of Cato are more accurately preserved by Aulus Gellius (x. 23). 121 For the system of Jewish and Catholic matrimony, see Selden (Uxor Ebraica, opp vol. ii. p. 520-860). Bingham (Christian Antiquities, l. xxii.), and Chardon (Hist. des Sacremens, tom. vi.). i: The civil laws of marriage are exposed in the Institutes (l. i. tit. x.), the Pandects (1, xxiii. xxiv. xxv.), and the Code (). v.); but as the title de rità nuptiarum is yet imperfect, we are obliged to explore the Fragments of Ulpian (tit. ix. pp 590, 591) and the Collatio Legum Mosaicarum (tit. xvi. pp.,790, 791), with the hôtes of Pithaeus and Schulting. They find in the Commentary of Servius (on the 1st Georgic and the fourth AEneid) two curious passages.
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 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 the Romans; * but the most solemn sacrament, the confarreation itself, might always be done away by rites of a contrary tendency. In the first ages, 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; * 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, so to the paternal authority and care of her late husand ; 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 favorable 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 a 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.” 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, *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 praetor, as the guardian of equity, examined the cause and the characters, and gently inclined the scale in favor of the guiltless and injured party. Augustus, who united the powers of both magistrates, adopted their dif. ferent modes of repressing or chastising the licence of divorce.” The presence of seven Roman witnesses was
128 According to Plutarch (p. 57), Romulus allowed only three grounds of a divorce—drunkenness, 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 or transient.
1-4. In the year of Rome 523, Spurius Carvilius Ruga repudiated a fair, a good, but a barren, wife (Dionysius Hal. l. ii. p. 93. Plutarch, in Numa, p. 141; Walerius Maximus, l. ii. c. 1: Aulus Gellius, iv. 3). He was questioned by the consors, and hated by the people ; but his divorce stood unimpeached in law.
"...Montesquieu relates and explains this fact in a different manner. Esprit des Loix, 1. xvi. c. 16.-G.
135 — Sic fiunt octo mariti
A rapid succession, which may yet be credible, as well as the non consulum numero, Sed maritorum annos stios 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 Gerontian). But the ten liusbands in a month of the poet Martial, is an extravagant hyperbole (1. vi. epigram 7).
* Sacellum Viriplacae (Valerius Maximus, l. ii. c. 1), in the Palatine region, appears in the time of Theodosius, in the description of Rome by Publius Victor.
1” Valerius Maximus, l. ii. c. 9. With some propriety he judges divorce more criminal than celibacy: illo namoue conjugalia sacra spreta tantum, hoc etiam injuriose tractata.
* See the laws of Augustus and his successors, in Heineccius, ad Legem Papiam-Poppaeam, c. 19, in Opp. tom. vi. P. i. pp. 323–333.