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that the submission of such a matter to this public inquiry was productive of very wholesome effects on both sexes. La loi Romaine qui vouloit que l'accusation de l'adultère fût publique etoit admirable pour maintenir la pureté des mœurs; elle intimidoit les femmes, elle intimidoit aussi ceux qui devoient veiller sur elles."*

The attachment, however, of a capital punishment, to the commission of this crime, is perhaps to be traced to the connexion of the gospel with the throne. It was the work of the Christian Emperors; but the consideration of this will, more properly, fall under the next branch of the Essay, after the laws of the New Testament shall have been examined; and we pass now to the consideration of the Roman laws of Divorce.

For the reasons just mentioned, we defer the notice of a distinction, in the nature of Divorce, which belongs to a later period. In the early and dark history of this people, SO much perplexity and disagreement in every particular appear to prevail, that it is difficult to say what was the law of husband and wife, and how it was exercised.

• Montesq. Esprit des Loix, lib. v. cap 7.

Sometimes the man is seen clothed with all the arbitrariness of unrestrained marital power, and lording it over the persons of his little empire, with more than Asiatic tyranny; at others, (as before alluded to,) we behold him, like a cool and dispassionate judge, having summoned his wife's relations about him, forming the head of a domestic jurisdiction.

In the vigorous spirit of the old Roman law, the husband, in the plenitude of his power, could dismiss his wife at pleasure and uncontrollably, and the wife had no redress against him, as far as her return to him was affected, but he was obliged to allow her a portion of his estate for her support, if he put her away on slight occasions. The three causes, to which, by the law of Romulus, the power of justifiable Divorce was limited, were Adultery, poisoning his children, and falsification or counterfeiting of his keys; and to obtain a Divorce on the first ground, no fine, as in the other cases, was necessary.

Plutarch denominates that law of Romulus, which permitted Divorce to the men, and refused it to the women, as poopov, very hard. Afterwards, this exclusive privilege of the husband was extended to the wife; and, in later ages, both sexes might sue out a Divorce.

We have seen that the Athenians did allow

of this liberty to their women; and we find that this was one of the alterations in the code of Romulus, imported from Athens, and made one of the laws of the twelve tables. The manners of the people had compelled an extension of the original restrictions. And Cicero, in his second Philippic, refers to the new laws as enlarging the freedom of separation. "Mimam suam res suas sibi habere jussit, et ex duodecim tabulis causam addidit. Claves ademit, forasque exegit." * An increased facility was thus afforded to Divorce, the policy of which was very questionable; and the proof of this afterwards appeared sufficiently evident.

On the joint testimony of Dionysius Halicarnassus, Valerius Maximus, and Aulus Gellius, we learn that no instance of Divorce occurred, till upwards of five centuries after the foundation of Rome. It was that of Spurius Carvilius Ruga, when Marcus Attilius Balbus, and Publius Valerius, (or as others affirm, Manlius Torquatus,) were Consuls. †

* Cic. Philip. ii. 28. Opera, Tom. v. p. 1988. Edit. Gronovii.

† Dion. Halicar. lib. 2. Valer. Max. lib. 2. c. 4. Aul. Gellius. lib. 4. c. 3.

The cause of this separation was his wife's sterility; and the occasion of it appears to have been, a census taken of the Roman population, when a considerable diminution being observed, the causes of it were believed to be, that the men married only with a view to interest, and, afterwards deserting their wives, carried on unlawful intrigues with other women; to remedy which, the censors obliged the citizens to swear that they would not marry with any other view than that of increasing the subjects of the government.* This oath raised many scruples, and caused many ruptures between husbands and wives; among whom was Ruga, a man of distinction, who thought himself bound to divorce his wife, whom he passionately loved, because of her barrenness, and he accordingly put her away, and married another, and the Divorce was unimpeached by the law.

It is said, he was hated by the people for this act; but Montesquieu attributes this circumstance to the aversion which they felt towards the censors for their interference in this matter, which they considered as a step towards arbitrary power. "C'etoit un joug

See Anc. Univ. Hist. vol. 12. p. 164.

que

le peuple voyoit que les censeurs alloient mettre sur lui."*

No fact in history has perhaps excited a wider difference of opinions than this. Some have questioned its truth, and those who have admitted it, have placed the most varying interpretations on it. Montesquieu, in the former part of the chapter just referred to, first attempts to disbelieve it, and then wishes to account for it on other principles than the mere force of virtue among that people in the early part of their history. "Il ne me paroit (he says) vraisemblable," and soon after adds, if it were so, that this really had been the first instance of Divorce, it is to be ascribed to the fine which was imposed on Divorce by the laws of Romulus, the moiety of the husband's estate to the wife, the other offered to the goddess Ceres, and which fine Ruga was the first who thought it worth while to pay. But these fines were very doubtful, at least as carried to such an extent; and it is difficult to arrive at certainty respecting them. One provision of them shows the imperfect account which we retain of them, the sacrifice which was decreed to the terrestrial deities. Gibbon very properly asks, where

Montesq. Esp. Loix, lib. xvi. cap. 16.

F

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