tinue beyond the time of the Emperors. They made way for even more severe penalties, as the increase of the crime had probably called for such; for Rome, in the after ages, appears to have been characterized by a profligacy, as extensive as was her dominion. Some writers have indeed said, that capital punishments were inflicted on this and other crimes, in the earlier ages of the Roman Empire; that Adultery, or the drinking of wine, (which the Greeks would allow as the least of all crimes,) were both punished with death, as the greatest offences that woman could be guilty of; for that Romulus looked upon Adultery as the source of impudence, and drunkenness of Adultery.* * The slightest approach to this last mentioned vice in their women, was peculiarly obnoxious to the Roman people, and subjected them to severe visitation. Pliny says, it was enough to have tasted wine, or to have stolen the key of the cellar. Nat. Hist. xiv. 14. It was a custom among them, at marriages, for the bride to salute the attendants, in order to convince them, by her breath, of her innocence of any imputation of drinking strong liquors; so severely was this offence reprobated. Perhaps our own custom of the minister saluting the bride, still retained in many country parishes, is a remnant of this, or rather, perhaps, merely an expression of pastoral benediction and christian kindness. Both these offences continued for a long time to be punished by the Romans without mercy; and to this cause has been attributed the absence of any separation of husband and wife among the Romans, for many years. Taylor, in his comment on the civil law, says, the length of time has shown the goodness of the law concerning women, for it is allowed, that during the space of five hundred and twenty years, no marriage was ever dissolved at Rome.* But we remark more on this shortly. If the laws of Rome did indeed make this provision, they seemed to have had a beneficial operation, as a restraint; but it is certain, that there is no record of the infliction of such a punishment; and it is doubted, whether it existed as a capital crime, previously to the Christian Emperors. In a case of suspected crime, the husband, together with the relations of the wife, were appointed her judges. This was a sort of domestic tribunal, erected among the Romans, having its chief cognizance over the manners of the people, for the power of the Censors was not of equal extent with that of the Archons in Greece, and this was one mode of investigating Adultery. Montesquieu remarks, * Taylor's Elements of Roman Civil Law. 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 opopov, 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 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. |