quired the previous approbation of the parents. According to Plutarch (p. 57.), Romulus allowed only three grounds of a divorce-drunkennefs, adultery, and falfe keys. Otherwife, the husband who abufed his fupremacy forfeited half his goods to the wife, and half to the goddess Ceres, and offered a facrifice (with the remainder?) to the terreftrial deities. This ftrange law was either imaginary or tranfient. 124 In the year of Rome 523, Spurius Carvilius Ruga repudiated a fair, a good, but a barren wife (Dionyfius Hal. 1. ii. p. 93. Plutarch, in Numa, p. 141. Valerius Maximus, 1. ii. c. 1. Aulus Gellius, iv. 3.). He was queft'oned by the cenfors, and hated by the people; but his divorce flood unimpeached in law. Roman CHAP. 1 XLIV. XLIV. CHAP. Roman matrons became the equal and voluntary companions of their lords, a new jurisprudence was introduced, that marriage, like other partnerships, might be diffolved by the abdication of one of the affociates. In three centuries of profperity and corruption, this principle was enlarged to frequent practice and pernicious abuse. Paffion, interest, or caprice, fuggested daily motives for the diffolu tion of marriage; a word, a fign, a meffage, a letter, the mandate of a freedman, declared the feparation; the most tender of human connections was degraded to a tranfient fociety 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 fpurious, progeny to the paternal authority and care of her late husband; a beautiful virgin might be difmiffed to the world, old, indigent, and friendlefs; but the reluctance of the Romans, when they were preffed to marriage by Auguftus, fufficiently marks, that the prevailing institutions were least favourable to the males. A fpecious 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 feparation would deftroy all mutual confidence, and inflame every trifling difpute: the minute difference between an husband and a ftranger, which might so easily be removed, might still more easily be forgotten; and the matron, who in five years can fubmit to the embraces of eight husbands, must cease XLIV. ceafe to reverence the chastity of her own per- С НА Р. fon 125. Infufficient remedies followed with diftant and tardy steps the rapid progrefs 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 fide fubmiffion and repentance were always expected. Every act of a citizen was fubject to the judgment of the cenfors; the first who used the privilege of divorce affigned, at their command, the motives of his conduct 127; and a fenator was expelled for difmiffing his virgin spouse without the knowledge or advice of his friends. Whenever an action was inftituted 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. Auguftus, who united the powers of both magiftrates, adopted their different modes of repreffing Quinque per autumnos. (Juvenal, Satir. vi. 20.) A rapid fucceffion, which may yet be credible, as well as the non confulum numero, fed maritorum annos fuos computant, of Seneca (de Beneficiis, iii. 16.). Jerom faw at Rome a triumphant husband bury his twenty-first wife, who had interred twenty-two of h s lefs fturdy predeceffors (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.). 126 Sacellum Viriplace (Valerius Maximus, 1. ii. c. 1.) in the Palatine region appears in the time of Theodofius, in the defcription of Rome by Publ.us Victor. 127 Valerius Maximus, I. ii. c. 9. With fome propriety he judges divorce more criminal than celibacy: illo namque conjugalia facra foreta tantum, hoc et am injuriofe tractata. Limitations of the liberty of divorce. CHAP. or chastifing the license of divorce . The prefence of feven Roman witneffes was required for the validity of this folemn 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 fpace of fix months; but if he could arraign the manners of his wife, her guilt or levity was expiated by the lofs of the fixth or eighth part of her marriageportion. 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 9, and the author of the Novels too frequently reforms the jurifprudence of the Code and Pandects. In the most rigorous laws, a wife was condemned to fupport a gamefter, a drunkard, or a libertine, unless he were guilty of homicide, poifon, or facrilege, in which cafes the marriage, as it fhould feem, might have been diffolved by the hand of the executioner. But the facred right of the husband was invariably maintained to deliver his name and family from the difgrace of adultery: the lift of mortal fins, either male or female, was curtailed and enlarged by fucceffive regulations, and the obftacles of incurable impotence, long abfence, and monaftic 128 See the laws of Auguftus and his fucceffors, in Heineccius, ad Legem Papiam Poppæam, c. 19. in Opp. tom. vi. P. i. p. 323 333. 129 Aliæ funt leges Čæfarum, alæ Chrifti; aliud Papinianus, aliud Paulus nofter præcipit ( Jerom, tom. i. p. 198. Selden, Uxer Ebraica, 1. iii. c. 1. p. 847-853-). profeffion, XLIV. profeffion, were allowed to refcind the matrimonial CHA P. obligation. Whoever tranfgreffed the permiffion of the law, was fubject 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 feized by the vengeance of his exiled wife. Forfeiture was fometimes commuted to a fine; the fine was sometimes aggravated by tranfportation to an ifland, or imprisonment in a monastery: the injured party was released from the bonds of marriage; but the of fender, during life or a term of years, was difabled from the repetition of nuptials. The fucceffor of Juftinian yielded to the prayers of his unhappy fubjects, and restored the liberty of divorce by mutual confent: the civilians were unanimous ***, the 130 theologians were divided " and the ambiguous word, which contains the precept of Christ, is flex 130 The Inftitutes are filent, but we may confult the Codes of Theodofius (1. iii. tit. xvi. with Godefroy's Commentary, tom. i. P. 310 315.) and Juftinian (1. v. tit. xvii.), the Pandects (1. xxiv. tit ii.) and the Novels (xxii. cxvii. cxxvii. cxxxiv. cxl.). Juftinian fluctuated to the laft between civil and ecclefiaftical law. 131 In pure Greek, wopese is not a common word; nor can the proper meaning, fornication, be strictly applied to matrimonial fin. In a figurative sense, how far, and to what offences, may it be extendéd? Did Chrift fpeak the Rabbinical or Syriac tongue? Of what original word is TopVesa the tranflation? How variously is that Greek word tranflated in the verfions ancient and modern! There are two (Mark, x. 11. Luke, xvi. 18.) to one (Matthew, xix. 9.) that fuch ground of divorce was not excepted by Jefus. Some critics have prefumed 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.). · |