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History of the Decline and Fall of the Roman Empir

Footnote 123 According to Plutarch


[Footnote

123: According to Plutarch, (p. 57,) Romulus allowed only three grounds of a divorce--drunkenness, adultery, and false keys. Otherwise, the husband who abused his supremacy forfeited half his goods to the wife, and half to the goddess Ceres, and offered a sacrifice (with the remainder?) to the terrestrial deities. This strange law was either imaginary or transient.]

[Footnote 1231: Montesquieu relates and explains this fact in a different marnes Esprit des Loix, l. xvi. c. 16.--G.]

[Footnote 124: In the year of Rome 523, Spurius Carvilius Ruga repudiated a fair, a good, but a barren, wife, (Dionysius Hal. l. ii. p. 93. Plutarch, in Numa, p. 141; Valerius Maximus, l. ii. c. 1; Aulus Gellius, iv. 3.) He was questioned by the censors, and hated by the people; but his divorce stood unimpeached in law.]

[Footnote 125:--Sic fiunt octo mariti Quinque per autumnos. Juvenal, Satir. vi. 20.--A rapid succession, which may yet be credible, as well as the non consulum numero, sed maritorum annos suos computant, of Seneca, (de Beneficiis, iii. 16.) Jerom saw at Rome a triumphant husband bury his twenty-first wife, who had interred twenty-two of his less sturdy predecessors, (Opp. tom. i. p. 90, ad Gerontiam.) But the ten husbands in a month of the poet Martial, is an extravagant hyperbole, (l. 71. epigram 7.)]

Insufficient remedies followed with distant

and tardy steps the rapid progress 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, [126] the appeaser of husbands, too clearly indicates on which side submission and repentance were always expected. Every act of a citizen was subject to the judgment of the censors; the first who used the privilege of divorce assigned, at their command, the motives of his conduct; [127] 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 proetor, as the guardian of equity, examined the cause and the characters, and gently inclined the scale in favor of the guiltless and injured party. Augustus, who united the powers of both magistrates, adopted their different modes of repressing or chastising the license of divorce. [128] 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, [129] 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 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 successor of Justinian yielded to the prayers of his unhappy subjects, and restored the liberty of divorce by mutual consent: the civilians were unanimous, [130] the theologians were divided, [131] and the ambiguous word, which contains the precept of Christ, is flexible to any interpretation that the wisdom of a legislator can demand.


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