contract which either party might dissolve, almost without alleged cause. In the older law, the wife being, like the rest of his family, the property of the husband, he might dismiss her at any time from his service. Even the law of the Twelve Tables admitted divorce. But the severer morals of the older Republic disdained to assert this privilege. The sixth century of Roman greatness is said to have begun before the public feeling was shocked at the repudiation of a virtuous but barren wife by Spurius Carvilius Ruga." But in the later Republic the frequency of divorce was at once the sign, the cause, and the consequence of the rapid depravation of morals. Paulus Æmilius discarded the beautiful Papyria with a scornful refusal to assign any reason. Cato, Cicero, exchanged or dismissed their wives. And the wives were not behind their husbands in vindicating their equal rights. Paula Valeria repudiated her husband without cause to become the wife of Decimus Brutus. Augustus might endeavour by laws and by immunities to compel or allure the reluctant aristocracy of Rome to marriage; he might limit divorce by statute: but his example more powerfully counteracted his own laws. He compelled the husband of Livia to divorce her during a state of pregnancy, and by marrying her became the father of a doubtful offspring. Mæcenas changed his wives as he changed his dress." Seneca, in his lofty Stoic morality, declares that the noble women of Rome calculated the year not by the Consuls, but by their husbands." Juvenal, in the bitterness of his satire, might describe the husband discarding his wife for the slightest infirmity; Martial might point an epigram against these legal adulteries ;" and all these writers might dwell, and with licensed exaggeration, only, or principally, on the manners of the capital and those of the higher orders; but throughout the Roman world there can be no doubt that this dissolution of those bonds which unite the family was the corroding plague of Roman society. Christianity must have subjugated public feeling to a great extent; it must have overawed, and softened, and rendered attractive the marriage state by countless examples in every part of the Empire (like that so beautifully described by Tertullian), far more than by its monastic notions of the superior dignity of virginity, before even Constantine could venture on his prohibitory law against divorce. Marriage was absolutely annulled by three causes, retirement to a monastic life, impotence, and captivity. The period at which captivity dissolved the tie, and permitted the husband or the wife to marry again, was differently defined in successive statutes. The divorce law of Constantine limited repudiation to three causes: against the husband, if he was a homicide, a magician, a violator of tombs. In either of these cases the wife recovered her dowry. If she sued for a divorce for any other cause, she forfeited her dowry, her jewels, even to the bodkin of her hair, and was sentenced to deportation into a desert island. Against the wife the three crimes were adultery, witchcraft, or acting as procuress. If the husband repudiated her for one of these causes he retained the dowry; if for any other the penalty was the forfeiture of the dowry. If he married again, the repudiated wife might enter his house and seize the dowry of the new bride. But the severity of this law was mitigated by Honorius," its penalties abrogated by Theodosius the younger. This law, which is recited in the Code and in the Novellæ of Justinian, adds to the causes which justify divorce: on the part of the wife, if the husband is guilty of adultery, high treason, or forgery, sacrilege, pillage of churches, robbery or harbouring robbers, cattledriving, man-stealing, having, to the disgrace of his family, connexion with loose women in the sight of his wife, attempting her life by poison or violence, or scourging her in a manner insupportable to a freewoman. On the part * Ad uxor. ii. c. 9. Cod. Theod. de repud. iii. xvi. cod. Theodos. Ritter observes that the constitutions were not annulled by this edict, only the penalties. of the husband, besides all these, frequenting the banquets of strangers without his knowledge or consent, passing the night abroad without just cause or permission, or indulging in the Circus, the theatre, or the amphitheatre, without his leave.a The legislation of Justinian is obviously embarrassed with the difficulty of the question of repudiation: it reenacts, but with some hesitation, the severe statutes of Theodosius: a succession of new laws explains, restricts, or confirms the plainer language of the Code. Justinian, indeed, first extended the penalties of the laws against divorce to cases of marriage without dower: if the husband repudiated an undowered wife without just cause, he forfeited to her one-fourth of his property. But the successor of Justinian was compelled to sweep away all these provisions, and to restore the liberty of divorce by mutual consent. The Emperor, as the law declares, was beset by complaints and remonstrances, that inextinguishable hatred was implanted in families by these restrictions, that secret poisonings would become common: he resisted long, but was compelled to yield to the general clamour. The manners of Constantinople, perhaps of the Roman world, triumphed over the severer authority of the Church. Concubinage, a kind of inferior marriage, of which the issue were natural children not bastards, had Concubinage. been, to a certain extent, legalised by Augustus. The Christian Emperors endeavoured to give something of the dignity of legitimate marriage to this union, by enlarging the rights of natural children to succession; but in the East it was not abolished, as a legal union, till the time of Leo the Philosopher; in the West it was perpetuated by the pride of the conquering races, and in some respects by the practice of the clergy themselves to a much later period. That primeval constitution of Roman society, which made each family a little state, with its peculiar Parental sacrifices and peculiar jurisdiction, of which the power. Cod. v. xvii.; Pandects, xxiv. ii.; Novellæ, xxii. cxvii. cxxxiv. The Institutes avoid the subject. b Cod. v. xvii. ii. To the first causes were added, endeavour to procure abortion, and indecent bathing in the public baths with men. с Ducange, art. Concubina. father was Priest and King, had long fallen into disuse. The parental power, in theory absolute, had been limited by public feeling and long desuetude. Even under the old republic, Brutus and Manlius were magistrates and generals as well as fathers; the execution of their sons was a sacrifice to Roman liberty and to Roman discipline, not an exertion of parental authority. Erixo, a Roman knight in the time of Seneca, whose son died under his chastisement, was pursued through the forum by the infuriated people. Alexander Severus limited the parental power by law. It was well perhaps for human nature that this change had taken place before the promulgation of Christianity. It was spared those domestic martyrdoms which might have taken place in many families. For that which the divine wisdom of its founder had foreshown was inevitable. Youth, in its prospective ardour, would be more prone to accept the new religion, than age rigidly attached to ancient and established usages. It is the constant reproach, with which the apologists of Christianity have to contend, that it nurtured filial disobedience, and taught children to revolt against the authority of parents. But this conflict was over long before Christianity entered into Roman legislation. The life of the child was as sacred as that of the parent; and Constantine, when he branded the murder of a son with the name of parricide, hardly advanced upon the dominant feeling. Some power remained of moderate chastisement, but even this was liable to the control of law. Disinheritance remained the only penalty which the father could arbitrarily inflict upon the son; for by degrees that absolute possession of all the property of the son which of old belonged to the father had been limited. The peculium over which full power was vested in the son was extended by Augustus, Trajan, and Hadrian to all which he might acquire in military service, even to captives who became his slaves, to be disposed of by gift or will; by Constantine and later Emperors to all emoluments obtained in d Seneca de Clement., i. 14. Tertull. Apologet. c. 3; Origen contra Cels.; Hieronym. Epist. ad Lætam. civil employments; by Justinian to the inheritance, in certain cases, of the mother's property. Infanticide. Infanticide was thus a crime by law, but the sale and exposure of children, the most obstinate vestige of the arbitrary parental power, aggravated by the increasing misery of the times, still contended with the humane severity of the laws, and the fervent denunciations of the Christian teachers. The sale of children was prohibited by law, yet prevailed to late times. The Emperor Trajan had declared that a free born child, exposed by its parents and brought up by a stranger, did not forfeit its liberty." The Christian Emperor first declared exposure of infants a crime; at the same time he declared the children of such poor parents as should be unable to nourish them, children of the state, to be clothed and supported by the public treasury. This vast poor law could not have been carried into effect, or was necessarily modified by new laws, providing for children thus exposed. The stranger who took up such child and maintained it, might, according to a law of Theodosius the Great, bring it up as his own son, or as his slave. The father who had exposed his child, having abandoned his paternal power, could not reclaim it; he, however, who had sold his child through poverty might redeem it by paying the same price, or replacing it by another slave. But one of Justinian's supplementary laws both shows the unrepressed frequency of the practice, and by its strong language the profound sense of its inhumanity. It was now the custom to leave the children not merely in the streets, but in the churches, in order, no doubt, to appeal to the kindness of the clergy and the more pious worshippers. If, says the law, worn-out slaves, who are exposed by their masters, obtain their freedom, how much the rather free-born in Athenagor. Apologet. Tertullian, Apologet. 9; Lactantius, D. I. vi. 20. Pliny. Epist. x. 7. h The Cod. Justin. iv. 43, 1, confirmed the declaration of the law by Diocletian. "Liberos a parentibus neque venditionis neque donationis titulo, neque pignoris ure, aut alio quolibet modo, nec sub prætextu ignorantiæ accipientes, in alium transferri posse, manifestissimi juris est." Yet in the life of Paphnutus by Jerome we read: "Mihi est maritus qui fiscalis debiti gratiâ, suspensus est et flagellatus, ac pœnis omnibus cruciatus, servatur in carcere. Tres autem nobis filii fuerunt, qui pro ejusdem debiti necessitate distracti sunt." |