t

CHAP. tine. The same protection was due to every XLIV. period of existence; and reason must applaud

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the humanity of Paulus, for imputing the crimè of murder to the father, who strangles, or starves, or abandons his new-born infant; or exposes him in a public place to find the mercy which he himself had denied. But the exposition of children was the prevailing and stubborn vice of antiquity: it was sometimes prescribed, often permitted, almost always practis ed with impunity, by the nations who never en tertained the Romans ideas of paternal power; and the dramatic poets, who appeal to the hu man heart, represent with indifference a popular custom which was palliated by the motives of economy and compassion." If the father could subdue his own feelings, he might escape, though not the censure, at least the chastisement of the laws; and the Roman empire was stained with the blood of infants, till such murders were included, by Valentinian and his colleagues, in the letter and spirit of the Cornelian law. The lessons of jurispru

The Pompeian and Cornelian laws de sicariis and parricidis, are repeated, or rather abridged, with the last supplements of Alexander Severus, Constantine, and Valentinian, in the Pandects (1. xlviii, tit, viii, ix), and Code (l. ix, tit. xvi, xvii). See likewise the Theodosian Code (l. ix, tit. xiv, xv), with Godefroy's Commentary (tom. iii, p. 84113), who pours a flood of ancient and modern learning over these penal laws.

"When the Chremes of Terence reproaches his wife for not obeying his orders and exposing their infant, he speaks like a father and a master, and silences the scruples of a foolish woman. See Apuleius (Metamorph. 1. x, p. 337, edit. Delphin.).

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dence and Christianity had been insufficient CHAP. to eradicate this inhuman practice, till their gentle influence was fortified by the terrors of capital punishment.

and wives.

Experience has proved, that savages are the Husbands tyrants of the female sex, and that the condition of women is usually softened by the refinements of social life. In the hope of a robust progeny, Lycurgus had delayed the season of marriage; it was fixed by Numa at the tender age of twelve years, that the Roman husband might educate to his will a pure and obedient virgin. According to the custom of antiquity, The relihe bought his bride of her parents, and she ful-giomarites filled the coemption, by purchasing, with three riage. pieces of copper, a just introduction to his house and household-deities. A sacrifice of fruits was offered by the pontiffs in the presence of ten witnesses; the contracting parties were seated on the same sheepskin; they tasted

* The opinion of the lawyers, and the discretion of the magistrates, had introduced in the time of Tacitus some legal restraints, which might support his contrast of the boni mores of the Germans to the bonæ leges alibi-that is to say, at Rome, (de Moribus Germanorum, c. 19). Tertullian (ad Nationes, 1. i, c. 15) refutes his own charges and those of his brethren, against the heathen jurisprudence.

The wise and humane sentence of the civilian Paul (1. ii, Sententiarum in Pandect. 1. xxv, tit. iii, leg. 4) is represented as a mere moral precept by Gerard Noodt (Opp. tom. i, in Julius Paullus, p. 567-588, and Amica Responsio, p. 591-606), who maintains the opinion of Justus Lipsius (Opp. tom. ii, p. 409, ad Belgas, cent. i, epist. 85), and as a positive binding law by Bynkershoek (de Jure occedendi Liberos, Opp. tom. i, p. 318-340. Curæ Secundæ, p. 391-427). In a learned but angry controversy the two friends deviated into the opposite ex

tremes.

Z

Dionys. Hal. 1. ii, p. 92, 93. Plutarch. in Numa, p. 140, 141. Το σωμα και το ήθος καθαρον και αθικτον επι τω γαμεντι γενεσθαι.

i

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CHAP. a salt cake of far or rice; and this confarreation, which denoted the ancient food of Italy, served as an emblem of their mystic union of mind and body. But this union on the side of the woman was rigorous and unequal; and she renounced the name and worship of her father's house, to embrace a new servitude, decorated only by the title of adoption. A fiction of the law, neither rational nor elegant, bestowed on the mother of a family (her proper appellation) the strange characters of sister to her own children, and of daughter to her husband or master, who was invested with the plenitude of paternal power. By his judgment or caprice her behaviour was approved, or censured, or chastised; he exercised the jurisdiction of life and death; and it was allowed, that in the cases of adultery or drunkenness, the sentence might be properly inflicted. She acquired and inherited for the sole profit of her lord; and so clearly was woman defined, not as a person, but as a thing, that if the original title were deficient, she might be claimed, like other moveables, by the use and possession of an entire

2

Among the winter frumenta, the triticum, or bearded wheat; the siligo, or the unbearded; the far, adorea, oryza, whose description perfectly tallies with the rice of Spain and Italy. I adopt this identity on the credit of M. Paucton in his useful and laborious Metrologie, (p 517-529).

► Aulus Gellius (Noctes Atticæ, xviii, 6) gives a ridiculous definition of Ælius Melissus, Matrona, quæ semel, materfamilias quæ sæpius peperit, as porcetra and scropha in the sow kind. He then adds the genuine meaning, quæ in matrimonium vel in manum convenerat.

C

It was enough to have tasted wine, or to have stolen the key of the cellar, (Plin. Hist. Nat xiv, 14).

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year. The inclination of the Roman husband CHAP. discharged or withheld the conjugal debt, so scrupulously exacted by the Athenian and Jewish laws; but as polygamy was unknown, he could never admit to his bed a fairer or more favoured partner.

After the Punic triumphs, the matrons of Freedom Rome aspired to the common benefits of a free trimonial and opulent republic: their wishes were grati- contract. fied by the indulgence of fathers and lovers, and their ambition was unsuccessfully resisted by the gravity of Cato the Censor. They declined the solemnities of the old nuptials, defeated the annual prescription by an absence of three days, and, without losing their name or independence, subscribed the liberal and definite terms of a marriage-contract. Of their private fortunes, they communicated the use, and secured the property; the estates of a wife could neither be alienated nor mortgaged by a prodigal husband; their mutual gifts were prohibited by the jealousy of the laws; and the misconduct of either party might afford, under

CHAP another name, a future subject for an action of XLIV. theft. To this loose and voluntary compact,

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Liberty and abuse

religious and civil rites were no longer essential; and, between persons of a similar rank, the apparent community of life was allowed as sufficient evidence of their nuptials. The dignity of marriage was restored by the Christians, who derived all spiritual grace from the prayers of the faithful and the benediction of the priest or bishop. The origin, validity, and duties of the holy institution, were regulated by the tradition of the synagogue, the precepts of the gospel, and the canons of general or provincial synods; and the conscience of the Christians was awed by the decrees and censures of their ecclesiastical rulers. Yet the magistrates of Justinian were not subject to the authority of the church: the emperor consulted the unbe. lieving civilians of antiquity, and the choice of matrimonial laws in the code and pandects is directed by the earthly motives of justice, policy, and the natural freedom of both sexes.”

Besides the agreement of the parties, the esof divorce, sence of every rational contract, the Roman marriage required the previous approbation of

For the system of Jewish and catholic matrimony, see Selden (Uxor Ebraica, Opp. vol. ii, p. 529-860), Bingham (Christian Antiquities, l. xxii), and Chardon (Hist. des Sacramens, tom. vi).

• The civil laws of marriage are exposed in the Institutes (l. i, tit. x), the Pandects (1. xxiii, xxiv, xxv), and the Code (1. v); but as the title de ritâ nuptiarum is yet imperfect, we are obliged to explore the fragments of Ulpian (tit. ix, p. 50, 591), and the Collatio Legum Mosaicarum (tit. xvi, p. 790, 791), with the Notes of Pithæus and Schulting. They find, in the Commentary of Servius (on the 1st Georgic and the 4th Eneid), two curious passages.