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History of the Decline and Fall of the Roman Empir

Footnote 113 The opinion of the lawyers


[Footnote

110: Quod latronis magis quam patris jure eum interfecit, nam patria potestas in pietate debet non in atrocitate consistere, (Marcian. Institut. l. xix. in Pandect. l. xlviii. tit. ix. leg.5.)]

[Footnote 111: The Pompeian and Cornelian laws de sicariis and parricidis are repeated, or rather abridged, with the last supplements of Alexander Severus, Constantine, and Valentinian, in the Pandects (l. xlviii. tit. viii ix,) and Code, (l. ix. tit. xvi. xvii.) See likewise the Theodosian Code, (l. 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.]

[Footnote 112: When the Chremes of Terence reproaches his wife for not obeying his orders and exposing their infant, he speaks like a father and a master, and silences the scruples of a foolish woman. See Apuleius, (Metamorph. l. x. p. 337, edit. Delphin.)]

[Footnote 113: The opinion of the lawyers, and the discretion of the magistrates, had introduced, in the time of Tacitus, some legal restraints, which might support his contrast of the boni mores of the Germans to the bonae leges alibi--that is to say, at Rome, (de Moribus Germanorum, c. 19.) Tertullian (ad Nationes, l. i. c. 15) refutes his own charges, and those of his brethren, against the heathen jurisprudence.]

[Footnote 114: The wise and humane sentence

of the civilian Paul (l. ii. Sententiarum in Pandect, 1. xxv. tit. iii. leg. 4) is represented as a mere moral precept by Gerard Noodt, (Opp. tom. i. in Julius Paulus, p. 567--558, and Amica Responsio, p. 591-606,) who maintains the opinion of Justus Lipsius, (Opp. tom. ii. p. 409, ad Belgas. cent. i. epist. 85,) and as a positive binding law by Bynkershoek, (de Jure occidendi Liberos, Opp. tom. i. p. 318--340. Curae Secundae, p. 391--427.) In a learned out angry controversy, the two friends deviated into the opposite extremes.]

Experience has proved, that savages are the tyrants of the female sex, and that the condition of women is usually softened by the refinements of social life. In the hope of a robust progeny, Lycurgus had delayed the season of marriage: it was fixed by Numa at the tender age of twelve years, that the Roman husband might educate to his will a pure and obedient virgin. [115] According to the custom of antiquity, he bought his bride of her parents, and she fulfilled the coemption by purchasing, with three pieces of copper, a just introduction to his house and household deities. A sacrifice of fruits was offered by the pontiffs in the presence of ten witnesses; the contracting parties were seated on the same sheep-skin; they tasted a salt cake of far or rice; and this confarreation, [116] which denoted the ancient food of Italy, served as an emblem of their mystic union of mind and body. But this union on the side of the woman was rigorous and unequal; and she renounced the name and worship of her father's house, to embrace a new servitude, decorated only by the title of adoption, a fiction of the law, neither rational nor elegant, bestowed on the mother of a family [117] (her proper appellation) the strange characters of sister 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 behavior was approved, or censured, or chastised; he exercised the jurisdiction of life and death; and it was allowed, that in the cases of adultery or drunkenness, [118] the sentence might be properly inflicted. She acquired and inherited for the sole profit of her lord; and so clearly was woman defined, not as a person, but as a thing, that, if the original title were deficient, she might be claimed, like other movables, by the use and possession of an entire year. The inclination of the Roman husband discharged or withheld the conjugal debt, so scrupulously exacted by the Athenian and Jewish laws: [119] but as polygamy was unknown, he could never admit to his bed a fairer or a more favored partner.


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