strong generations; that nature exhausted by intemperate excitements betrays its feebleness by feeble products; that the rash abuses which falsify and profane the providential law of reproduction, fall cruelly upon their authors, and prepare for innocent generations a frightful heritage of moral and physical evil. But such a danger placed at the very sources of life could not escape the attentive eye of Christianity, which, in its love for man, aims to narrow the empire of physical by the reform of moral evil. Accordingly it has established marriage as a holy institution, in order the better to restrain and bring back to the purposes of God, that blind force which propagates the species.

It has sanctified the marriage bed by prayer and consecration, and opened to husband and wife a spiritual conmunion with heaven, when the world seems to subjugate them the most completely. But the Epicurean world is obedient to Venus, the generatrix, sung in the voluptuous verse of Lucretius.' The Christian world, more chaste, has wrested the crown from that queen of the flesh, who should be merely the obedient instrument of the divine mind.

Fortes says Horace creantur fortibus et bonis ! Odes bk. iv. and La Sagesse, "O, combien est belle la race chaste” iv, 1. 'M. de Maistre. Soirees de Saint Petersbourg. t. i p. 60, 61. 'Parent of Rome! by gods and men beloved, Benignant Venus! thou, the sail-clad main And fruitful earth, as round the seasons roll, With life who swellest, for by thee all live, And, living, hail the cheerful light of day.

Good's Lucretius, lib. i. v. i. et seq. 'Fenelon. Exhortations Art. 5. Jesus Christ intends by this holy institution to bestow a rich benediction upon the source of our existence, in order that those who are united in the bonds of matrimony, may not think only of having children, and less of having them, than of giving to God beings created in the likeness of their heavenly Father. The bonds of matrimony render the

In vain has pagan materialism deified her as the soul of the universe; she is-if I may so speak-only the soul of sensuality, the inferior soul,' and her carnal desires are governed by the moderation reflected by those of the spirit.' Nevertheless, that doctrine of the Church which places marriage among the sacraments, was not formulated until very late in the laws of the Christian Emperors. A constitution of Theodosius the younger, A. D. 428, appears to have even reproduced the principle of the law of the jurisconsults, that marriage is perfected by consent alone, without dowery, nuptual pomp or solemnity-aliaque nuptiarum celebritas omittatur.

Did that Prince allude to civil pomps and secular solemnities only, which without having ever been an essential element of marriage, accompanied it quite often and did not cease to be customary even during the decadence of ancient manners? When he speaks of consent, does he mean that which expresses itself according to the views of the Christian. Church? In regard to this there are various doubts. It is most certain, that we must go to Justinian to

two persons inseparable. The Holy Spirit has ordained this for the good of man, in order to repress incontinence, and the confusion which disturbs the order of families, and for the stability necessary to the education of children.

"Origen de Principiis iii. 4.

These expressions are from St. Paul. The flesh has desires contrary to those of the spirit. Gal. v. 17.

As to the foundation of the idea, listen to Origen. I cite the Latin version. "His enim modus orationis debitus impeditur, nisi etiam ille actus nuptialis secreti, de quo maxime silere decet, et rarius, et sedatiore animo, ac minus impotenti fiat; cum is qui dicitur consensus discordiam animi affectuum evanidam reddat."De oratione § 2, vol. 1. p, 198.

1L. 3. C. Theod. de nuptiis. 'See Gibbon with reference Arcadius with Eudoxia.

L. 6. C. Theod. de tironibus.
to the marriage of the Emperor

discover in the civil law any mention of Christian solemnities. The texts which call them to mind are explicit, but have a character, rather enunciative than imperative. They presuppose the customary use of the benediction, but do not prescribe it, and subsequent history shows that it was often dispensed with. And why should this be surpris ing, when the last traces of paganism had not yet disappeared, and grave attempts had already been made at the unity of faith? The emperor Leo called attention to this neglect of the regulations constitutive of marriage, condemned it by a celebrated law,' and identified the civil conjugal union with the sacrament of the Church. It should be remarked, however, that that law was not made. for the occident, where the intervention of the bishops in public affairs, established a similar rule, and the religious celebration governed the marriage contract, until the differences in worship introduced into the state, established the incompetency of the exterior law, with respect to matters which affect the conscience; that incompetency is one of the conquests of modern liberty, and wise men know how to respect it, leaving to the extremists of all parties the abuse.

'L. 44. C. Just. de nuptiis. Nisi ipsa nuptiarum accedat festivitas. Such is Godefroy's understanding of the law. See his notes on Novel. lxxxix of Leo. See also Novel. lxxiv, § 1 of Justinian.

'Novel. lxxiv S lxxiv § 1 of Justinian. According to the Abbé Fleury, the earliest fathers of the Church considered marriage an ecclesiastical as well as civil ceremony.

Novel. lxxix. The Emperor Leo, A. D., 886, is said to have been the first to declare the ecclesiastical benediction necessary to marriage. Blackstone, Com. Bk, i. ch. 15, says that the interven. tion of the priest to solemnize this contract is merely juris positivi, and not juris naturalis aut divini. See Lord Mackenzie's Rom. Law, p. 95. Pothier, Traité du mariage, part 4, c. 1, § 4. Code Civil, art. 75, 76, 165.

of atheistic law, by which an attempt has been made to dishonor the impartiality of the legislator. But, as it is necessary to know how to liberate ourselves from ancient ideas, in order to judge of the present, so also will it be dangerous to be guided by contemporaneous opinions, in judging of the needs of the past. When I carry myself back to the disorders of the Middle Ages, and to that frightful irruption of all the brutal passions which characterize the history of the Merovingian and Carlovingian races, and the earlier ages of the Capetian race, I do not know what would have become of civilization, if the spiritual had not been ready at hand. for the use of the temporal power; that power, happily, was armed with moral and political strength, and by the assistance of the principles of the gospel, with respect to marriage, has been able to wrest the primordial element of society, from materialism, in order to restore it to Christianity.'

CHAPTER VIII.

The Concubinate.

I have already said that we generally discover in the Roman jurisprudence the antithesis of two diverse principles, the civil and natural laws. Marriage had, also, its remarkable characteristics. By the side of the civil marriage there was a natural union known as the Concubinate." Before the time of Augustus, it had no legal name and everything leads us to believe, that it was confounded with illicit and unacknowledged intercourse. But under that prince it became completely isolated, and took its place among the agreements authorized and legally recog

'Then the Instit. coutumiers say, Les mariages se font au ciel et se consomment sur la terre. Loisel, liv. i. tit. ii. n. 2.

2Gibbon, Chap. xliv, and above Chap. iii.

'Heinec on the Papian law, lib. ii. chap. iv, n. 3.

nized by the natural law.' What was the reason for this peculiar institution? I find it in I find it in a compromise between the license of morals at the end of the Republic, and the laws of Augustus against adultery and concubinage; between the aversion of the Romans of that epoch for marriage, and the laws of that emperor to render it more frequent. Augustus gave the inequality of stations in life as the foundation for that concession made to prejudices or feebleness. In those celebrated laws whose

'Marcianus, loc. cit Paul, 1, 144, D. de verborum signif.

"Cicero, in fact, calls her a concubine who lives with a married man-de orat. lib. 1, ch. xl.-A Roman citizen returned from Spain, leaving in the province a wife enceinte. He married again at Rome, and died, leaving two posthumous children of two marriages; the status of the second wife and child was contested; the question being whether in order to break the second marriage there was need of a solemn divorce, a change of will regularly manifested in a particular form-certis quibusdam verbis-and not the change of will only resulting from the single fact of the second marriage. And it was on that occasion that Cicero made the remark that the question was decided against the second wife who could be treated only as a concubine-in concubinæ locum deduceretur. The Jurisconsult Marcianus had reason therefore for saying that it is by the laws of Augustus, that the Concubinate received a name and legal status.-Concubinatum nomen PER LEGES adsumpsisse 1. 3, § 1, D. de ccncub. Accordingly when we find that word in Plautus and other writers anterior to Augustus, we must be guarded in believing that they applied to a legal status, which they served to indicate at a later period-V. Plautus Epidicus act iii. sc. iv, v, 444.-Trinummus act iii, sc. ii, v. 747— Translators of Plautus have not given this sufficient attention.

'See the Digest, ad leg. Julia de adulteriis. Inst. Just. Lib. IV, Tit. xviii, D xlviii pr. and 1. The lex Julia punished those guilty of adultery by confiscation of a portion of their property and by relegation.-Paul. Sent. ii, 26, 14. Constantine imposed the graver penalty of death. C. ix, 9, 31. See also Livy, lib. xxxix.