CHAP. ftantine".

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The fame protection was due to every period of existence; and reafon must applaud the humanity of Paulus, for imputing the crime of murder to the father, who ftrangles, or ftarves, or abandons his new-born infant; or expofes him in a public place to find the mercy which he himself had denied. But the expofition of children was the prevailing and stubborn vice of antiquity: it was fometimes prescribed, often permitted, almost always practised with impunity, by the nations who never entertained the Roman ideas of paternal power; and the dramatic poets, who appeal to the human heart, reprefent with indifference a popular custom which was palliated by the motives of œconomy and compaffion ". If the father could fubdue his own feelings, he might escape, though not the cenfure, at least the chastisement of the laws; and the Roman empire was ftained with the blood of infants, till fuch murders were included, by Valentinian and his colleagues, in the letter and fpirit of the Cornelian law. The leffons of jurif

!!! The Pompeian and Cornelian laws de ficariis and parricidęs, are repeated, or rather abridged, with the last supplements of Alexander Severus, Conftantine, and Valentinian, in the Pandects (1. xlviii. tit. viii, ix.) and Code (1. ix. tit. xvi, xvii.). See likewife the Theodofian Code (1. ix. tit. xiv, xv.), with Godefroy's Commentary (tom. iii. p. 84—113.), who pours a flood of ancient and modern learning over these penal laws.

112 When the Chremes of Terence reproaches his wife for not obeying his orders and expofing their infant, he speaks like a father and a master, and filences the fcruples of a foolish Aupuleius (Metamorph. 1. x. p. 337. edit. Delphin.).

woman.

See

prudence

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prudence " and christianity had been infufficient CHA P. to eradicate this inhuman practice, till their gentle influence was fortified by the terrors of capital pu, nishment **4.

Experience has proved, that favages are the ty-Hufbands rants of the female fex, and that the condition of and wives, women is usually foftened by the refinements of focial life. In the hope of a robuft progeny, Lycurgus had delayed the feafon of marriage: it was fixed by Numa at the tender age of twelve years, that the Roman hufband might educate to his will a pure and obedient virgin ". According to The relithe custom of antiquity, he bought his bride of her of marparents, and fhe fulfilled the coemption, by pur- riage. chafing, with three pieces of copper, a just introduction to his house and household deities. A facrifice of fruits was offered by the pontiffs in the presence of ten witneffes; the contracting parties

113 The opinion of the lawyers, and the discretion of the magiftrates, had introduced in the time of Tacitus fome legal restraints, which might fupport his contrast of the boni mores of the Germans to the bonæ leges alibi-that is to say, at Rome (de Moribus Germanorum, c. 19.). Tertullian (ad Nationes, 1. i. c. 15.) refutes his own charges and those of his brethren, against the heathen jurisprudence.

114 The wife and humane fertence of the civilian Paul (1. ii. Sententiarum in Pandect. 1. xxv. tit. iii. leg. 4.) is reprefented as a mere moral precept by Gerard Noodt (Opp. tom. i. in Julius Paullus, p. 567-588. and Amica Refponfio, p. 591–6c6.), who maintains the opinion of Juftus Lipfius (Opp. tom. ii. p. 409. ad Belgas, cent. i. epist. 85.), and as a pofitive binding law by Bynkershoek (de Jure occidendi Liberos, Opp. tom. i. p. 318-340. Cure Secundæ, P. 391-427.). In a learned but angry controverfy the two friends deviated into the oppofite extremes.

115 Dionyf. Hal. 1. ii. p. 92, 93. Plutarch, in Numa, p, 140, 141. Το σώμα και το ήθος καθαρον και αθικτον επί τω γαμοντι γενέσθαι.

were

XLIV.

116

CHAP. were feated on the fame fheepskin; they tafted a falt cake of far or rice; and this confarreation which denoted the ancient food of Italy, served as an emblem of their myftic union of mind and body. But this union on the fide of the woman was rigorous and unequal; and the renounced the name and worship of her father's houfe, to embrace a new fervitude decorated only by the title of adoption. A fiction of the law, neither rational nor elegant, bestowed on the mother of a family "7 (her proper appellation) the strange characters of fifter 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 behaviour was approved, or cenfured, or chastised; he exercised the jurifdiction of life and death; and it was allowed, that in the cases of adultery or drunkenness "13, the sentence might be properly inflicted. She acquired and inherited for the fole profit of her lord; and fo clearly was woman defined, not as a perfon, but as a thing, that if the original title were deficient, fhe might be claimed, like other moveables, by the ufe and pof

118

116 Among the winter frumenta, the triticum, or bearded wheat; the filigo, or the unbearded; the far, adorea, oryza, whofe defcription perfectly tallies with the rice of Spain and Italy. I adopt this identity on the credit of M. Paucton in his useful and laborious Metrologie (P517-529).

117 Aulus Gellius (Noctes Atticæ, xviii. 6) gives a ridiculous definition of Ælius Meliffus, Matrona, quæ femel, materfamilias quæ fæpius peperit, as porcetra and scropha in the fow kind. He then adds the genuine meaning, quæ in matrimonium vel in manum

convenerat.

118 It was enough to have tafted wine, or to have stolen the key of the cellar (Plin. Hift. Nat. xiv. 14.).

feffion

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feffion of an entire year. The inclination of the CHAP. Roman husband discharged or withheld the conju- ~ gal debt, fo fcrupulously exacted by the Athenian and Jewish laws "9; but, as polygamy was unknown, he could never admit to his bed a fairer or more favoured partner.

119

of the ma

After the Punic triumphs, the matrons of Rome Freedom afpired to the common benefits of a free and opu- trimonial lent republic: their wishes were gratified by the contract. indulgence of fathers and lovers, and their ambition was unfuccefsfully refifted by the gravity of Cato the Cenfor 120. They declined the folemnities of the old nuptials, defeated the annual prefcription by an absence of three days, and, without losing their name or independence, fubfcribed the liberal and definite terms of a marriage-contract. Of their private fortunes, they communicated the use, and fecured 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

" 119 Solon requires three payments per month. By the Mifna, 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 fix months on a seaman. But the ftudent or doctor was free from tribute; and no wife, if the received a weekly fuftenance, could fue for a divorce: for one week a vow of abstinence was allowed. Polygamy divided, without multiplying, the duties of the husband (Selden, Uxor Ebraica, 1. iii. c. 6. in his works, vol. ii. P. 717-720.).

120 On the Oppian law we may hear the mitigating speech of Valerius Flaccus, and the fevere cenforial oration of the elder Cato (Liv. xxxiv. 1-8.). But we fhall rather hear the polished historian of the eighth, than the rough orators of the fixth, century of Rome. The principles, and even the ftyle, of Cato are more accurately preferved by Aulus Gellius (x. 23.).

of

CHAP. of either party might afford, under another name,

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Liberty

a future fubject for an action of theft. To this loose and voluntary compact, religious and civil rites were no longer effential; and, between perfons of a fimilar rank, the apparent community of life was allowed as fufficient evidence of their nup. tials. 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 prieft or bishop. The origin, validity, and duties of the holy institution, were regulated by the tradition of the fynagogue, the precepts of the gofpel, and the canons of general or provincial fynods "" and the confcience of the Chriftians was awed by the decrees and cenfures of their ecclefiaftical rulers. Yet the magiftrates of Juftinian were not fubject to the authority of the church: the emperor confulted the unbelieving civilians of antiquity, and the choice of matrimonial laws in the Code and Pandects, is directed by the earthly motives of juftice, policy, and the natural freedom of both fexes 122.

121

;

Besides the agreement of the parties, the essence and abufe of every rational contract, the Roman marriage re

of divorce.

121 For the fyftem of Jewish and Catholic matrimony, fee Selden (Uxor Ebraica, Opp. vol. ii. p. 529-860.), Bingham (Chriftian Antiquities, 1. xxii. ), and Chardon (Hift. des Sacremens, tom. vi.).

122

The civil laws of marriage are exposed in the Inftitutes (1..i. tit. x.) the Pandects (1. xxiii, xxiv, xxv.), and the Code (1. v.): but as the title de ritû nuptiarum is yet imperfect, we are obliged to explore the fragments of Ulpian (tit. ix. p. 590, 591.), and the Collatio Legum Mofaicarum (tit. xvi. p. 790, 791.), with the Notes of Pithæus and Schulting. They find, in the Commentary of Servius (on the 1st Georgic and the 4th neid), two curious paffages.