ARTICLE V.-DIVORCE.

PART III.-LAW OF DIVORCE IN THE ROMAN EMPIRE, AND IN THE CHRISTIAN CHURCH.

In the last number of the New Englander we attempted to set forth and explain the declarations of Christ and of the Apostle to the Gentiles on the subject of divorce. Our present object is to give a compendious view of the law of divorce in the Roman empire down to the time of Justinian, and of Christian opinion until it became the canonical law of the Catholic church.

In our first Article on divorce, we were able to do little more than allude to the legislation of Augustus, by which an effort was made to check some of the leading social evils of Rome, and which remained on the whole, ever afterwards, the groundwork of Roman legislation respecting marriage. The emperor and his advisers were, without doubt, alarmed by the wide-spread violations of the rights of marriage, but to improve morals was not the only end they had in view. Popu lation was beginning to decline; young men and old were averse to the marriage state, rather choosing to keep mistresses than to be encumbered with the expensive cares, and tried by the vexations of a family; and persons of the higher ranks preferred in some instances to marry freed women rather than the proud and costly descendants of the aristocracy. Hence it was enacted in these Julian laws that an unmarried man between twenty and sixty, and an unmarried woman or widow under fifty, should be debarred from sharing in inheritances or legacies, except where the testator was a very near relative. And, on the other hand, married men, especially those who had three children, enjoyed special privileges and honors. They had better seats than others at the public shows, they had advantages in obtaining office, and took precedence of their colleagues who had no such merit; they were exempted from certain burdens, and enjoyed certain rights of inheritance

from which others were excluded; they incurred a milder penalty, when they had committed offenses calling for confiscation of property. Married women, too, who had borne three children, or, if freed women, four, had special privileges of their own in cases of inheritance, and were exempted from tutelage. It was enacted, also, to keep up the respectability of senatorial families, that senators and their sons should not marry freedmen, play-actresses or women of ambiguous character. Other men could ally themselves to freedwomen, and, as we have seen, when a patron contracted such a marriage, his wife, being his former slave, could not separate herself from him without his consent.

A very revolting part of the legislation of Augustus concerning marriage, was the legalizing of concubinage, as a state between lawful marriage and mere sexual intercourse. This was done, it would seem, in the hope of increasing population. This condition of life began and ended without formal notice or agreement; and the children had no legal father but only a mother. They therefore were incapable of being their fathers' heirs, but it would naturally happen that bequests would be made to them. Restrictions were put on the validity of legacies of this sort, by the early Christian emperors, on moral grounds, but Justinian took a milder course, and the way was opened for the legitimation of such children. This relation between the sexes seems to have been very common under the empire, so that even free women of the better classes were found willing to take the place of concubines.* To the man it brought, as being a legal relation, no loss of respectability, and it was held to be more seemly for the patron

* A startling proof of this is given in the newly discovered work of Hippolytus, ix. § 12, p. 460, ed. Duncker. He charges Callistus, Bishop of Rome, not only with ordaining men who had been married twice or thrice, and with treating a clergyman who had married after ordination as though he had not sinned, but with allowing women of rank, who were believers, to have a male concubine, slave or free, as they chose. Then, adds he, women called believers, began to secure themselves against having children by medicines procuring abortion, because, owing to their family connection and great property, they did not wish to have a child by a slave or a low freeman. This Callistus was bishop in A. D. 217-221.

to be united to his freed woman by this tie than by that of a wife.

It has been maintained, we believe, that facility of divorce is necessary to prevent infractions of matrimonial rights, but under the empire, although neither law nor opinion set up any strong barriers against divorce, adultery was exceedingly fre quent. This appears from the strong assertions of poets and historians, and it is confirmed by facts. The crime burst out like a plague in the very highest classes. The grand niece of the Emperor Augustus, Aquilia and Claudia Pulchra, members of distinguished families, Aemilia Lepida, wife of Drusus, who killed herself before trial, the sister of Caligula, his wife Livia Orestilla, Julia, daughter of Germanicus and niece of the Emperor Claudius,-these are examples from the history of the four first emperors of ladies tried and punished for this crime.* At the end of the second century an emperor of strictness and energy-Septimius Severus-endeavored to give effect to the laws against adultery, and Dio Cassins says, that, when he himself was consul, he found on looking over the register of cases that three thousand processes for adultery were instituted in this reign, but the war against manners was ineffectual, and the emperor, getting tired of his efforts on be half of morality, stopped the prosecutions.†

The penalties for adultery continued until the time of the Christian emperors, much the same as they had been constituted by the laws of Augustus. The principal penalties we have already mentioned as being relegation and a loss of property. The woman convicted of the crime lost half her dower, and a third of her goods; and from her paramour half his property was taken away. They were banished to differ ent islands. Besides these leading penalties the woman lost her right of marrying again, although she might sink to the condition of a concubine. She could no longer wear the matron's stole nor appear as a witness in the courts. The

* See Rein's Criminalrecht, 850-856.

Dio Cass, 66, § 16.

It may need to be said that only a crime to which a married woman was a party, could be called adulterium. The Romans held that the jus thori pertained to the husband. He could not commit this crime against his wife.

man also lost the right of testimony, and, if a soldier, was shut out from the army. The Christian emperors increased the severity of punishment for this offense, following herein, it would seem, the example of some of their predecessors, as well as influenced by the spirit of Christian morality. Constantine the Great imposed death with confiscation of goods on the adulter. His sons punished the adulteress with burning and took away from her paramour the privilege of appeal, but this seems to have been only a case of extraordinary and temporary legislation. Under Valentinian the guilty woman was again sentenced to death. Justinian's legislation shut up the woman in a cloister, making it illegal for her husband to take her back within two years. If the parties were not reconciled at the end of this term the marriage was dissolved, and the woman's imprisonment in the cloister was perpetual. As for the offending man, he was visited with death, but not with confiscation of goods, if he had near relatives in the direct line.*

The legislation of Augustus in regard to divorce remained nearly unaltered until the times of Constantine. It was, however, a very feeble barrier against the disposition to break the marriage tie, and it read no moral lesson on the sanctity of that union. For, in the first place, it was a maxim of Roman law far down beyond the time when the emperors became Christian, that no obstacle ought to be put in the way of a dissolution of marriage caused by the free consent of the partners, liberty of marrying again being in this case equally unrestricted. The lawyer Paulus says, that it has been thought improper that marriages, whether already contracted or about to take place, should be secured by the force of penalty (poena vinculo obstringi), that is, that two parties ought not to be forced by fear of penalty, either to enter into a state of wedlock to which they were pledged, or to keep up such a state if they were agreed to the contrary. And it was laid down that marriage was so free, according to ancient opinion, that even agreements between the parties not to separate from one

See Rein, u. s., 848-852, and Novell. 134, § 10, which renews Constantine's legislation.

*

another, could have no validity, (pacta ne liceret divertere non valere). In the second place, the laws affected but a small part of the population of Rome. Slaves could contract no marriage. Concubinage became exceedingly common, it is probable, among the lower classes, and to this condition the law of divorce did not apply. The limited range of the law seems to be shown by the fact that for the legal formalities the presence of a freedman of the divorcing party was necessary. It is true that a freedman of a near relative was held to be essentially a freedman of the party giving the notice, but how many thousands of married people, or at least of Romans living together as man and wife there must have been, who could not provide a freedman for this formality. Did these classes furnish no cases of divorce, or were they overlooked by the law? We must conclude that they were never legally married, or that the law was intended to preserve a sort of decency of life in the upper classes, while the lower freemen were left to do as they pleased. Such was the freedom of divorce when it took place by the consent of both parties. It was equally free, a few cases only excepted,† where one of the parties terminated the union without the consent of the other, saving that here, if the woman had caused the divorce by her conduct, a large share of her dower was withheld from her, and if the man had caused it, he might be liable to pay over the whole of the dower, and that within a short term. The parties were subjected until the time of Justinian to a judicium morum, which might be instituted on a complaint of either consort. The fear, then, of losing a portion or the whole of the dower, and the dread of a loss of reputation, when the conduct of the parties in their married life should be investigated, seem to have been the only inducements to prevent one-sided divorce. But what if no misconduct could be alleged on the part of the man, what if he dismissed his wife to marry a richer woman, the law in this case had no restrain

* Paulus in Dig. xlv., 1, 134; Cod. viii., 39, 1. 2, de inutil. stip.

These were adultery, where a man was obliged on penalty to dismiss his guilty wife; the case of a freed woman married to her patron who could not separate from him although he might from her; the captivity or insanity or certain bodily defects of one of the parties.