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as polygamy 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.120 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 pact, religious and civil rights 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; 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.122

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abstinence was allowed. Polygamy divided, without multiplying, the duties of the husband (Selden. Uxor Ebraica, 1. iii. c. 6, in his works, vol. ii. pp. 717-720).

120 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 Gellius (x. 23).

121 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.).

122 The civil laws of marriage are exposed in the Institutes (1. i. tit. x.), the Pandects (1. xxiii. xxiv. xxv.), and the Code (J. v.); but as the title de ritû 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 notes of Pithæus and Schulting. They find in the Commentary of Servius (on the 1st Georgic and the fourth Æneid) 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 ; 123 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; 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,

123 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.

14 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, 1. 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.

progeny to the paternal authority and care of her late hus band; 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 infiame 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.

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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, 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; 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 por tion, the prætor, 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

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A rapid succession, which may yet be credible, as well as the non consuium 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).

128 Sacellum Viriplace (Valerius Maximus, 1. ii. c. 1), in the Palatine region, appears in the time of Theodosius, in the description of Rome by Publius Victor. 127 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.

128 See the laws of Augustus and his successors, in Heineccius, ad Legem Papiam-Poppæam, c. 19, in Opp. tom. vi. P. i. pp. 323-333.

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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 re fund 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 eight 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,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 trangsressed the permission of the law, was subject to various and heavy penalties. The woman was stripped 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,180 the theologians were divided,131 and

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

130 The Institutes are silent; but we may consult the Codes of Theodosius (1. iii. tit. xvi., with Godefroy's Commentary, tom. i. pp. 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, Topveía 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 tougue? Of what original word is opveta the translation? How variously is that Greek word translated in the versions ancient and modern?

the ambiguous word, whien contains the precept of Christ, is flexible to any interpretation that the wisdom of a legislator can demand.

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 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 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 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 marrage could only be contracted by free citizens; an honorable, 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 This appellation, indeed, so injurious to the majesty, cannot with

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, 1. iii. c. 18-22, 28, 31).*

132 The principles of the Roman jurisprudence are exposed by Justinian (Institut. t. 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 (pp. 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. 952, edit. Havercamp). She was therefore above fifty years old when Titus (Á. D. 79) invitus invitam invisit. This date would not have adorned the tragedy or pastoral of the tender Racine. 134 The Egyptia conjux of Virgil (Eneid, viii. 688) seems to be numbered among the monsters who warred with Mark Antony against Augustus, the senate, and the gods of Italy.

* But these had nothing to do with the question of a divorce made by judicial authority. Hugo.

† According to the earlier law (Gaii Instit. p. 27), a man might marry his niece on the brother's, not on the sister's, side. The emperor Claudius set the example of the former. In the Institutes, this distinction was abolished, and both declared illegal.-M.

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