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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 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 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,” 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,” the theologians were divided,” and the ambiguous word, whicn 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" 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 IRome 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,f 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,” to live the concubines of Mark Antony and Titus.” 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 civilian, 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 honors of a wife, above the infamy of a prostitute, was acknowledged and approved by the laws: from the age of Augustus to the tenth century, the use of this secondary marriage prevailed both in the West and East; and the humble virtues of a concubine were often preferred to the pomp and insolence of a noble matron. In this connection, the two Antonines, the best of princes and of men, enjoyed the comforts of domestic love; the example was imitated by many citizens impatient of celibacy, but regardful of their families. If at any time they desired to legitimate their natural children, the conversion was instantly performed by the celebration of their nuptials with a partner whose fruitfulness and fidelity they had already tried.” By this epithet of natural, the offspring of the concubine were distinguished from the spurious brood of adultery, prostitution, and incest, to whom Justinian reluctantly grants the necessary aliments of life; and these natural children alone were capable of succeeding to a sixth part of the inheritance of their reputed father. According to the rigor of law, bastards were entitled to the name and condition of their mother, from whom they might derive the character of a slave, a stranger, or a citizen. The outcasts of every family were adopted without reproach as the children of the state.”f
129 Aliae sunt leges Caesarum, aliae Christi; aliud Papinianus, aliud Paulus * noster praecipit (Jerom. tom. i. p. 198. Selden, Uxor Ebraica, lxiii. c. 31, pp. 847853)
189 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 (l. xxiv. tit. ii), and the Novels (xxii. cxvii. cxxvii. cxxxiv. cxl.) Justinian fluctuated to the last between civil and ecclesiastical law.
* In pure Greek, Tropweia 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 9.o.o. tougue?. Of what original word is topweia the translation? How *****) 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 round of divorce was not excepted by Jesus. Some critics have presumed to hink, 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)." *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. * 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. 76) invitus invitam invisit. This date would not have adorned the tragedy or pastoral of the tender Racine. *The AEgyptia conjua 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.
* But these had nothing to do with the question of a divorce made by judicial authority.—Hugo. f 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.
185 The humble but legal rights of concubines and natural children are stated in the Institutes (l. i. tit. x.), the Pandects (l. i. tit. vii.), the Code (l. v. tit.xxv.) and the Novels (lxxiv. lxxxix.). The researches of Heineccius and Giannone (ad
Legem Juliam et Papiam-Poppaeam, c. iv. pp. 164–175. Opere Posthume, pp. 108158) illustrate this interesting and domestic subject.
* The Edict of Constantine first conferred this right; for Augustus had prohibited the taking as a concubine a woman who might be taken as a wife; and if marriage took place afterwards, this marriage made no change in the rights of the children born before it; recourse was then had to adoption, properly called arrogation.—G.
f See, however, the two fragments of laws in the newly-discovered extracts from the Theodosian Code, published by M. A. Peyron, at Turin. By the first law of Constantine, the legitimaate offspring could alone inherit; where there were no near legitimate relatives, the inheritance went to the fiscus. The son of a certain Licinianus, who had inherited his father's property under the supposition that he was legitimate, and had been promoted to a place of dignitv, was to be degraded, his property confiscated. himself punished with stripes and imprisonment. By the second, all persons, even of the highest rank, senators, perfectissimi, decemvirs, were to be declared infamous, and out of the protection of * Homan law, if born ex ancillā, vei anciii., iiiia. Wei jiberta, oel'iii.ort. iii. sixe Romană factâ, seu Latinâ, vei scanicæ filia, vei ex tabernariá, veilex taber' #. olińs Yel humili vel abjecta, vei ignonis aut arenarii filiá, vel quae merci
* Publicis praefuit. Whatever a fond father had conferred on such children
The relation of guardian and ward, or in Roman words of tutor and pupil, which covers so many titles of the Institutes and Pandects,” is of a very simple and uniform nature. The person and property of an orphan must always be trusted to the custody of some discreet friend. If the deceased father had not signified his choice, the agnats, or paternal kindred of the nearest degree, were compelled to act as the natural guardians: the Athenians were apprehensive of exposing the infant to the power of those most interested in his death; but an axiom of Roman jurisprudence has pronounced that the charge of tutelage should constantly attend the emolument of succession. If the choice of the father, and the line of consanguinity, afforded no efficient guardian, the failure was supplied by the nomination of the praetor of the city, or the president of the province. But the person whom they named to this public office might be legally excused by insanity or blindness, by ignorance or inability, by previous enmity or adverse interest, by the number of children or guardianships with which he was already burdened, and by the immunities which were granted to the useful labors of magistrates, lawyers, physicians, and professors. Till the infant could speak, and think, he was represented by the tutor, whose authority was finally determined by the age of puberty. Without his consent, no act of the pupil could bind himself to his own prejudice though it might oblige others for his personal benefit. It is needless to observe, that the tutor often gave security, and always rendered an account, and that the want of diligence or integrity exposed him to a civil and almost criminal action for the violation of his sacred trust. The age of puberty had been rashly fixed by the civilians at fourteen; * but as the faculties of the mind ripen more slowly than those of the body, a curator was interposed to guard the fortunes of a Roman youth from his own inexperience and headstrong passions. Such a trustee had been first instituted by the praetor, to save a family from the blind havoc of a prodigal or madman; and the minor was compelled, by the laws, to solicit the same protection, to give validity to his acts till he accomplished the full period of twenty-five years. Women were condemned to the perpetual tutelage of parents, husbands or guardians; a sex created to please and obey was never supposed to have attained the age of reason and experience. Such, at least, was the stern and haughty spirit of the law, which had been insensibly mollified before the time of Justinian. II. The original right of property can only be justified by the accident or merit of prior occupancy; and on this foundation it is wisely established by the philosophy of the civilians.” The savage who hollows a tree, inserts a sharp stone into a wooden handle, or applies a string to an elastic branch, becomes in a state of nature the just proprietor of the canoe, the bow, or the hatchet. The materials were common to all, the new form, the produce of his time and simple industry, belongs solely to himself. His hungry brethren cannot, without a sense of their own injustice, extort from the hunter the game of the forest overtaken or slain by his personal strength and dexterity. If his provident care preserves and multiplies the tame animals, whose nature is tractable to the arts of education, he acquires a perpetual title to the use and service of their numerous progeny, which derives its existence from him alone. If he encloses and cultivates a field for their sustenance and his own, a barren waste is converted into a fertile soil; the seed, the manure, the labor, create a new value, and the rewards of harvest are painfully earned by the fatigues of the revolving year. In the successive states of society, the hunter, the shepherd, the husbandman, may defend their possessions by two reasons which forcibly appeal to the feelings of the human mind: that whatever they enjoy is the fruit of their own industry; and that every man who envies their felicity, may purchase similar acquisitions by the exercise of similar diligence. Such, in truth, may be the freedom and plenty of a small colony cast on a fruitful island. But the colony multiplies, while the space still continues the same; the common rights, the equal inheritance of mankind, are en
126 See the article of guardians and wards in the Institutes (l. i. tit. xiii.xxvi.), the Pandects (l. xxvi. xxvii.), and the Code (l. v. tit. xxviii.-lxx.).
was revoked, and either restored to the legitimate children, or confiscated to the state; the mothers, who were guilty of thus poisoning the minds of the fathers, were to be put to the torture (formentis subjici jubemus)., The unfortunate . of Licinianus, it appears from this second law, having fled, had been taken, an was ordered to be kept in go work in the Gynaeceum at Carthage. Cod. Theodos. ab. A. Peyron, 87-90.-M. * Gibbon accuses the civilians of having “rash] fixed the age of puberty at twelve or fourteen years.” It was not so ; before Justinian, no, law existed on this subject. Ulpian relates the discussions which took place on this point among the different sects of civilians. See the Institutes, l., i. tit. 22, and the fragments of Uipian. Nor was the curatorship obligatory for all minors.-W.