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 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. Augustus, who united the powers of both magistrates, adopted their different modes of repressing or chastising the licence of divorce.* The presence of seven Roman witnesses was 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 eighth 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 transgressed 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. divorce more criminal than celibacy: illo namque conjugalia sacra spreta tantum, hoc etiam injuriose tractata. * See the laws of Augustus and his successors, in Heineccius, ad Legem Papiam Poppæam, c. 19, in Op. tom. vi, P. 1, p. 323-333. Aliæ sunt leges Cæsarum, aliæ Christi; aliud Papinianus, aliud Paulus noster præcipit. (Jerom, tom. i, p. 198, Selden, Uxor Ebraica, 1. 3, c. 31, p. 847--853) 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 successo 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, which 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 commercet 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 nup * The Institutes are silent, but we may consult the Codes of Theodosius (1. 3, tit. 16, with Godefroy's Commentary, tom. i, p. 310-315), and Justinian (1. 5, tit. 17); the Pandects (1. 24, tit. 2), and the Novels (22, 117, 127, 134, 140). Justinian fluctuated to the last + In pure Greek, between civil and ecclesiastical law. Topvɛia 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 tongue? Of what original word is πoρvɛía the translation? How variously is that Greek work translated in the versions ancient and modern! There are two (Mark x. 11; Luke xvi. 18) to one (Matt. xix. 9) that such ground of divorce was not accepted 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. 3, c. 18—22, 28, 31.) [Here, again, we have additional reason to deplore the loss of Matthew's original memoir. Had that been preserved, no ambiguous word in the Greek Gospels could not have been satisfactorily explained.-ED.] The principles of the Roman jurisprudence are exposed by Justinian (Institut. 1. 1, tit. 10), and the laws and manners of the diffe rent nations of antiquity concerning forbidden degrees, &c., are copi ously explained by Dr. Taylor, in his Elements of Civil Law (p. 108, 314-339), a work of amusing, though various reading; but which cannot be praised for philosophical precision. * tials 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 marriage could only be contracted by free citizens; an honourable, 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 civilians, 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 honours 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 * When her father Agrippa died (A.D. 44), Berenice was sixteen years of age. (Joseph. tom. i, Antiquit. Judaic. 1. 19, c. 9, p. 952, edit. Havercamp.) She was therefore above fifty years old when Titus (A.D. 79) invitus invitam invisit. This date would not have adorned the tragedy or pastoral of the tender Racine. + The Ægyptia conjux of Virgil (Æneid. 8, 688) seems to be numbered among the monsters who warred with Mark Antony against Augustus, the senate, and the gods of Italy. [This right was first given by one of Constantine's laws, for 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 rigour of law, bastards were entitled only 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.* 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 jurispru dence 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 prætor of the city, or the president of the Augustus had prohibited concubinage with any female who might be taken for a wife. Subsequent marriage made no new rights for children previously born. Recourse was then had to adoption, or more properly to arrogation.—HUGO.] [The arrogatio could not take place till the adopted was of full age, vesticeps, had assumed the toga virilis, and was competent to answer for himself. The parties had to appear before the Comitia, where the questions were put from which the ceremony had its name. "Arrogatio per populi rogationem fit.' See Aulus Gellius, 5, 19, where the whole form of the proceeding is described. From this it is evident, that these popular assemblie continued to be held for some purposes in his days. Diocletian transferred the ceremony to the Prætor; this was probably the final deathblow of the Comitia.-ED.] * The humble but legal rights of concubines and natural children, are stated in the Institutes (1. 1, tit. 10), the Pandects (1. 1, tit. 7), the Code (1. 5, tit. 25), and the Novels (1. 74, 89). The researches of Heineccius and Giannone (ad Legem Juliam et Papiam-Poppæam, c. 4, p. 164-17-Opere Posthume, p. 108-158) illustrate this interesting and domestic subject. See the article of Guardians and Wards in the Institutes (l. 1, tit. 13---26), the Pandects (1. 26, 27), 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 labours 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 the Roman youth from his own inexperience and headstrong passions. Such a trustee had been first instituted by the prætor, 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 ancient law, which had been insensibly mollified before the time of Justinian. II. The original right of property can only be justified and the Code (1. 5, tit. 28-70). Imberbis juvenis, tandem custode remoto, * monitoribus asper.-De Arte Poet. 161.-ED.] |