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History of the Decline and Fall of the Roman Empir

We are obliged to explore the fragments of Ulpian tit


[Footnote

120: On the Oppian law we may hear the mitigating speech of Vaerius Flaccus, and the severe censorial oration of the elder Cato, (Liv. xxxiv. l--8.) But we shall rather hear the polished historian of the eighth, than the rough orators of the sixth, century of Rome. The principles, and even the style, of Cato are more accurately preserved by Aulus Gellius, (x. 23.)]

[Footnote 121: For the system of Jewish and Catholic matrimony, see Selden, (Uxor Ebraica, Opp. vol. ii. p. 529--860,) Bingham, (Christian Antiquities, l. xxii.,) and Chardon, (Hist. des Sacremens, tom. vi.)]

[Footnote 122: The civil laws of marriage are exposed in the Institutes, (l. i. tit. x.,) the Pandects, (l. xxiii. xxiv. xxv.,) and the Code, (l. v.;) but as the title de ritu nuptiarum is yet imperfect, we are obliged to explore the fragments of Ulpian (tit. ix. p. 590, 591,) and the Collatio Legum Mosaicarum, (tit. xvi. p. 790, 791,) with the notes of Pithaeus and Schulting. They find in the Commentary of Servius (on the 1st Georgia and the 4th Aeneid) two curious passages.]

Besides the agreement of the parties, the essence of every rational contract, the Roman marriage required the previous approbation of the parents. A father might be forced by some recent laws to supply the wants of a mature daughter; but even his insanity was not gradually allowed to supersede the necessity of his consent. The causes of

the dissolution of matrimony have varied among the Romans; [123] but the most solemn sacrament, the confarreation itself, might always be done away by rites of a contrary tendency. In the first ages, the father of a family might sell his children, and his wife was reckoned in the number of his children: the domestic judge might pronounce the death of the offender, or his mercy might expel her from his bed and house; but the slavery of the wretched female was hopeless and perpetual, unless he asserted for his own convenience the manly prerogative of divorce. [1231] The warmest applause has been lavished on the virtue of the Romans, who abstained from the exercise of this tempting privilege above five hundred years: [124] but the same fact evinces the unequal terms of a connection in which the slave was unable to renounce her tyrant, and the tyrant was unwilling to relinquish his slave. When the Roman matrons became the equal and voluntary companions of their lords, a new jurisprudence was introduced, that marriage, like other partnerships, might be dissolved by the abdication of one of the associates. In three centuries of prosperity and corruption, this principle was enlarged to frequent practice and pernicious abuse.

Passion, interest, or caprice, suggested daily motives for the dissolution of marriage; a word, a sign, a message, a letter, the mandate of a freedman, declared the separation; the most tender of human connections was degraded to a transient society 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 spurious, progeny to the paternal authority and care of her late husband; a beautiful virgin might be dismissed to the world, old, indigent, and friendless; but the reluctance of the Romans, when they were pressed to marriage by Augustus, sufficiently marks, that the prevailing institutions were least favorable to the males. A specious 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 separation would destroy all mutual confidence, and inflame every trifling dispute: the minute difference between a husband and a stranger, which might so easily be removed, might still more easily be forgotten; and the matron, who in five years can submit to the embraces of eight husbands, must cease to reverence the chastity of her own person. [125]


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