ancient civilization before Christianity began to influence legislation.
They have in them much that is elevated, much that is attractive. They
embody the doctrines which, after an interval of many centuries, have
again begun to be preached with the fervour of conviction to the modern
world, especially in England and the United States, by many zealous
friends of progress, and especially by those who think that the greatest
step towards progress is to be found in what is called the emancipation
of woman.
-----
Footnote 183:
‘Libera matrimonia esse antiquitus placuit,’ says the Emperor Severus
Alexander in the third century. _Cod._ viii. 38. 2.
-----
VIII. DIVORCE IN ROMAN LAW.
Let us now see how the Roman principles aforesaid worked out in practice
as regards domestic morality and the structure of society, that
structure depending for its health and its strength upon the purity of
home life at least as much as it does upon any other factor.
The last of the above-stated three principles is the derivation of all
the attributes of the marriage relation from the uncontrolled free will
of the parties. This principle is applied to the continuance of the
relation itself. With us moderns the tie is a permanent tie, which,
though freely formed, cannot be freely dissolved, whether by one of the
parties or by both. Very different was the Roman view. To them it is
even less binding than an ordinary business contract. Take for instance
a bargain made between _A_ and _B_ for the sale and purchase of a house.
Such a bargain creates what the Romans call an obligation, a bond of law
(_vinculum iuris_) which enables either of the contracting parties to
require the other to fulfil his promise, or to pay damages in case of
default. In Roman law the act of entering into marriage creates no such
bond. The business contract can be rescinded only by the consent of both
the parties to it. The marriage relation can be terminated by the will
of one only. Each party in forming it promised only that he, or she,
would remain united to the other so long as he, or she, desired so to
remain united. This is the logical consequence of the principle that
marriages should be free; this was how the Romans understood that
principle.
Accordingly divorce can be effected by either party at his or her
pleasure, the doctrine of equality between the sexes being impartially
applied, so that the wife may just as freely and easily divorce her
husband as the husband may divorce his wife.
The early history of the matter is somewhat obscure, and need not detain
us. It would seem probable that in the old days when marriage was
accompanied by the Hand power, a husband might put away his wife if she
had been convicted before the domestic council of certain grave
offences[184]; and we gather that in such cases she was entitled to
demand her emancipation, _i.e._ the extinction of the Hand power, by the
proper legal method thereto appointed. Such cases were, however,
extremely rare. When marriage unaccompanied by Hand power became
frequent, we do not at first hear of any divorces. Our authorities
declare that the first instance of divorce at Rome (they probably mean
the first where no crime was alleged) was furnished by a certain Spurius
Carvilius Ruga, who in B.C. 231 got rid of his wife, although warmly
attached to her, on account of her sterility. Universal displeasure fell
upon him for his conduct: and when L. Antonius put away his wife without
summoning a council of friends and laying the matter before them, the
Censors removed him from his tribe. But before long other husbands were
found to imitate Spurius Carvilius. In the second century B.C. divorce
was no longer rare. In the days of Julius Caesar it had become common,
and continued to be so for many generations. The fragrance of religious
sentiment had ceased to hallow marriage, and in the general decline of
morals and manners it was one of the first institutions to suffer
degradation. Not only Cn. Pompey, but such austere moralists as Cato the
younger and the philosophic Cicero put away their wives: Cato his after
thirty years of wedded life, Cicero two in rapid succession.
-----
Footnote 184:
A so-called ‘law of Romulus’ is said to have enumerated poisoning the
children, adultery, and the use of false keys as grounds justifying
the husband in divorcing his wife, no parallel right being granted to
her. And there seems to have been a provision regarding divorce in the
Twelve Tables.
-----
How far this decline had gone, even before the days of Cato and Cicero,
appears from the singular speech delivered by Q. Caecilius Metellus,
Censor in B.C. 131, in which he recommended a law for compelling
everybody to marry, observing that if it were possible to have no wives
at all, everybody would gladly escape that annoyance, but since nature
had so ordained that it was not possible to live agreeably with them,
nor to live at all without them, regard must be had rather to permanent
welfare than to transitory pleasure[185]. We are told that both men and
women, especially rich women, were constantly changing their consorts,
on the most frivolous pretexts, or perhaps not caring to allege any
pretext beyond their own caprice. Nothing more than a declaration of the
will of the divorcing party was needed: and this was usually given by
the husband in the set form of words, ‘keep thy property to thyself’
(_tuas res tibi habeto_). Little or no social stigma seems to have
attached to the divorcing partner, even to the wife, for public opinion,
in older days a rigid guardian of hearth and home, had now, in a rich,
luxurious, and corrupt society, a society which treated amusement as the
main business of life, come to be callously tolerant. There were still
pure and happy marriages, like that of Cn. Julius Agricola (the
conqueror of Britain) and Flavia Domitilla; nor is it necessary to
suppose that conjugal infidelity was the chief cause why unions were so
lightly contracted and dissolved, for the mere whims of self-indulgent
sybarites account for a great deal[186]. Still the main facts—the
prevalence of divorce, the absence of social penalties, and the general
profligacy of the wealthier classes—admit of no doubt.
-----
Footnote 185:
‘Si sine uxore, Quirites, possemus esse, omnes ea molestia careremus,
sed quoniam ita natura tradidit ut neque cum illis commode nec sine
illis ullo modo vivi possit, saluti perpetuae potius quam brevi
voluptati consulendum.’ Aul. Gell. _Noct. Att._ i. 6: cf. Liv. _Epit._
Book lix, and Sueton. _Vit. Aug._ Augustus, according to Gellius and
Suetonius, caused this speech, delivered a century before, to be read
aloud in the Senate in support of his bill _De Maritandis Ordinibus_,
as being one which might fitly have been made for their own times.
Footnote 186:
‘Aut minus aut certe non plus tricesima lux est
Et nubit decimo iam Thelesina viro.’
Mart. vi. 7.
-----
The Emperor Augustus, though by no means himself a pattern of morality,
was so much alarmed at a laxity of manners which threatened the
well-being of the community, as to try to restrict divorces by requiring
the party desiring to separate to declare his or her intent in the
presence of seven witnesses, being all full Roman citizens. This rule,
enacted by the _lex Iulia de adulteriis_, and continued down till
Justinian’s time, does not seem to have reduced the frequency of
divorces, though it would tend to render the fact more certain in each
case by providing indubitable evidence. Martial and Juvenal present a
highly coloured yet perhaps not greatly exaggerated picture of the
license of their time; and Seneca truly observes that when vice has
become embodied in manners, remedies avail nothing (_Desinit esse
remedio locus ubi quae fuerant vitia mores sunt_).
IX. INFLUENCE OF CHRISTIANITY ON THE ROMAN DIVORCE LAW.
But a force had come into existence which was to prove itself far more
powerful than the legislation of Augustus and his successors. The last
thing that these monarchs looked for was a reformation emanating from a
sect which they were persecuting, and from doctrines which their
philosophers regarded with contempt. Christianity from the first
recognized the sanctity of marriage, and when it became dominant (though
for a long time by no means omnipotent) in the empire a new era began.
The heathen emperors might probably have been glad to check the power of
capriciously terminating a marriage, but public opinion, which clung to
the principle of freedom, would have been too strong for them. All they
did was to impose pecuniary penalties on the culpable party by entitling
the husband to retain one-sixth of the _Dos_ in case of the wife’s
infidelity, one-eighth if her faults had been slighter, to which, if
there were children, one-sixth was added in respect of each child, but
so as not to exceed one-half in all. (The custody of the children
belonged to the father in respect of his paternal power.) If the husband
was the guilty party, he was obliged to restore the _Dos_ at once,
instead of being allowed a year’s grace.
Constantine and his successors had a somewhat easier task, because the
Church had during several generations given to marriage a religious
character, surrounded its celebration with many rites, and pronounced
her benediction upon those who entered into it. A new sentiment which
looked on it as a union permanent because hallowed was growing up, and
must have to some extent affected even heathen society, which remained
for a century after Constantine both large and influential.
Nevertheless, even the Christian emperors did not venture to forbid
divorce. They heightened the pecuniary penalties on the party to blame
for a separation by providing that where the misconduct of the wife gave
the husband good grounds for divorcing her, she should lose the whole of
the _Dos_, and where it was the husband’s transgressions that justified
the wife in leaving him, he should forfeit to her the property he had
settled, the _donatio propter nuptias_. In both these cases the ultimate
ownership of these two pieces of marriage property was reserved to the
children, if any, the husband or wife, as the case might be, taking the
usufruct or life interest. If there was no _Dos_ or _Donatio_, then the
culpable party forfeited to the innocent one a fourth part of his or her
private property. The definition of misconduct included a frivolous
divorce, so that capricious dissolutions were in this way discouraged.
If there were no fault on either side, but one or other partner desired
to put an end to the marriage for the sake of entering a convent, or
because the husband had been for five years in foreign captivity[187],
or because there had never been any prospect of offspring, such a
divorce was allowed, and carried no pecuniary penalty with it. It was
called _divortium bona gratia_.
-----
Footnote 187:
The older doctrine had been that foreign captivity destroyed marriage
_ipso facto_.
-----
Finally, if both the parties agreed of their own free wills to
separate—the _divortium communi consensu_—they might do so without
assigning any cause or incurring any liability. This rule, which
prevailed from first to last, and is recognized even in the Digest and
Code of Justinian, was only once broken in upon. In an ordinance issued
by Justinian in his later years (_Novella Constitutio_ cxxxiv) the pious
austerity of the reformer broke out so vehemently as to enact that where
husband and wife agreed to divorce one another without sufficient
ground, both should be incapable of remarriage and be immured for life
in a convent, two-thirds of their property going to their children. Even
then, however, the emperor did not venture to pronounce the divorce
legally invalid. The will of the parties prevails, and they die
unmarried, though they die in prison. This violation of the established
doctrine was, however, too gross to stand. It excited general
displeasure, and was repealed by Justin the Second, the nephew and
successor of Justinian. So the divorce by consent lasted for some
centuries longer, till in an age which had forgotten the ancient Roman
ideas and was pervaded by the conception of the marriage relation which
religion had instilled, the Emperor Leo the Philosopher declared this
form of separation to be invalid.
Through the whole of this legislation on the subject of divorce, which
is far more minute and intricate than the briefness of the outline here
presented can convey, it is to be noted that the Romans held fast to two
principles. One was the wholly private, the other the wholly secular,
character of wedlock. There is no legal method prescribed for entering
into a marriage, nor any public record kept of marriages. There is no
suit for divorce, no public registration of divorce. The State is not
invoked in any way. Neither is the Church. Powerful as she had grown
before Justinian’s time, even that sovereign does not think of requiring
her sanction to the extinction of the marriage which in most cases she
had blessed. Either party has an absolute right to shake off the bond
which has become a fetter. He or she may suffer pecuniarily by doing so,
but the act itself is valid, valid against an innocent no less than
against a guilty partner, and valid to the extent of permitting
remarriage, except (as observed in the last paragraph) for a few years
at the end of Justinian’s reign.
Religion had consecrated the patrician marriage with the sacred cake in
early days, and there had been a public character in the so-called
plebeian marriage with the scales and five witnesses. But the marriage
of the Christian Empire was (so far as law went) absolutely secular and
absolutely private.
X. SOME OTHER FEATURES OF ROMAN MARRIAGE LAW.
Before leaving this part of the subject, a few minor curiosities of the
Roman marriage law deserve to be mentioned. From the time of Augustus
there were in force, during some centuries, various provisions[188]
designed to promote marriage and the bearing of children by attaching
certain burdens or disabilities to the unmarried and childless. Most of
these, being opposed to the new sentiment which Christianity fostered,
were swept away by the Emperor Constantine and his successors. Others
fell into desuetude, so that before Justinian’s time few and slight
traces were left of statutes that had exerted a great influence in
earlier days, though it may be doubted whether they did much to promote
morality. The tendency of Christian teaching rather was in favour of
celibacy, when adhered to from ascetic motives; and the passion for a
monastic life which marked the end of the fourth century told powerfully
in this direction, especially in the eastern half of the empire.
-----
Footnote 188:
Especially those contained in the _lex Iulia et Papia Poppaea_.
-----
Similar sentiments worked to discourage second marriages, which earlier
legislation had favoured, though the widow who remarried within the year
of mourning (originally of ten, ultimately of twelve months) suffered
infamy, by a very ancient custom, as did the person who wedded her. The
marriage was, however, valid. The Christian emperors punished the
consort who married again by debarring him or her from the full
ownership of any property which came to him or her through the first
marriage (_lucra nuptialia_), while leaving him (or her) the usufruct in
it. But this applied only where there were children of the first
marriage living, and was mainly prompted by a desire to protect their
interests against a step-parent. The ancient world was singularly
suspicious of step-mothers.
The rules with regard to prohibited degrees of matrimony varied widely
from age to age. In early Rome even second cousins were forbidden to
intermarry. There was in those days a usage permitting near relatives,
as far as second cousins, to kiss one another without incurring censure
(_ius osculi_). Plutarch oddly explains the permission as grounded upon
the right of the male relatives to satisfy themselves in this way that
the ladies of the family had not tasted wine. But obviously the
wholesome habits of a simple society allowed a familiar intercourse
among kinsfolk just as far, and no farther, as the prohibition of
marriage between them extended[189]. Towards the end of the republican
period, however, we find that even first cousins might marry, probably
by custom, for we hear of no specific enactments. Tacitus (_Ann._ xii.
6) refers to the practice as well established. This freedom lasted till
the Emperor Theodosius the First, who forbade their marriage under pain
of death by burning. Though the penalty was subsequently reduced,
marriages of first cousins continued to be forbidden and punishable in
the western half of the empire, while in the eastern they were made
permissible, and remain so in the system of Justinian. The marriage of
uncle or aunt with niece or nephew had been prohibited, though
apparently by no statute, until the Emperor Claudius, desiring to marry
his brother’s daughter Agrippina, obtained a decree of the Senate
declaring such a marriage legal[190]. So it remained for a time, though
the marriage of an uncle with a sister’s daughter, or of an aunt with a
nephew, was still deemed incestuous. Christianity brought a change, and
the law of Claudius was annulled by the sons of the Emperor Constantine.
It was also by these sovereigns that marriage with a deceased wife’s
sister, or a deceased husband’s brother, which had previously been
lawful, though apparently regarded with social disapproval, was
expressly forbidden[191]. This rule was adopted by Justinian, in whose
_Codex_ it finds a place[192].
-----
Footnote 189:
It is a curious instance of the variance of custom in this respect,
that after it had in England become unusual for cousins of different
sexes to kiss one another, the practice remained common in the simpler
society of Scotland and still more in that of Ireland.
Footnote 190:
Tac. _Ann._ xii. 5-7.
Footnote 191:
Many other prohibitions of marriages applying to persons holding
official relations, or to persons of widely different rank, or to
cases where adoptive relationships come in, need not be mentioned, as
they have no longer any great interest.
Footnote 192:
_Cod. Theod._ iii. 12, 2 sqq.; _Cod. Iustin._ v. 5. 5 and 8.
-----
Besides the full lawful marriage of Roman citizens, to which alone the
previous remarks have referred, there were two other recognized
relations of the sexes under the Roman law[193]. One of these was the
marriage of a citizen, whether male or female, with a non-citizen,
_i.e._ a person who did not enjoy that part of citizenship which covered
family rights and was called _connubium_. This was called a natural
marriage (_matrimonium naturale_, _matrimonium iuris gentium_) as
existing under the Law of Nature or Law of the Nations (_ius gentium_),
as contradistinguished from the peculiar law of Rome (_ius
civile_)[194]. It was a perfectly legal union, and the children were
legitimate: as of course were the children of two non-citizens who
married according to their own law. When Roman citizenship became
extended to all the subjects of the empire, the importance of this kind
of marriage vanished, for it could thereafter have been applicable (with
some few exceptions) only to persons outside the Empire, and marriages
with such persons, who were _prima facie_ enemies, were forbidden.
-----
Footnote 193:
The connexion of two slaves, called _contubernium_, was not deemed a
legal relation at all, and children born from it were not legitimate.
So also a free person could not legally intermarry with a slave.
Footnote 194:
See Essay XI, p. 128.
-----
The other relation was that called concubinage (_concubinatus_). It was
something to which we have no precise analogue in modern law, for, so
far from being prohibited by the law, it was regulated thereby, being
treated as a lawful connexion. It is almost a sort of unequal marriage
(and is practically so described by some of the jurists) existing
between persons of different station—the man of superior rank, the woman
of a rank so much inferior that it is not to be presumed that his union
with her was intended to be a marriage. It leaves the woman in the same
station in which it found her, not raising her, as marriage normally
does, to the husband’s level. The children born in such a union are not
legitimate; but they may require their father to support them, and are
even allowed by Justinian, in one of his later enactments (_Novella_
lxxxix), a qualified right of intestate succession to him. They of
course follow their mother’s condition, and they have a right of
inheriting her property. Even here the monogamic principle holds good. A
man who is married cannot have a concubine, nor can any man have more
than one concubine at a time. Though regarded with less indulgence by
the Christian emperors than it had been by their predecessors, it held
its ground in the Eastern Empire, even under Justinian, who calls it a
‘permitted connexion’ (_licita consuetudo_), and was not abolished till
long after his time by the Emperor Leo the Philosopher in A.D. 887. In
the West it became by degrees discredited, yet doubtless had some
influence on the practice of the clergy, the less strict of whom
continued to maintain irregular matrimonial relations for a great while
after celibacy had begun to be enforced by ecclesiastical authority.
Children born in concubinage may be legitimated by the subsequent
marriage of their parents, according to a rule first introduced by
Constantine, and subsequently enlarged and made permanent by Justinian
(_Cod._ v. 27, 5 and 6; _Nov._ xii. 4; _Nov._ lxxxix. 8); a rule of
great importance, which was long afterwards introduced into the Canon
Law by Pope Alexander III in A.D. 1160, and has held its ground in the
modern Roman law of continental Europe, as it does in the law of
Scotland to this day. The bishops, prompted by the canonists, tried to
introduce it in England, but were defeated by the opposition of the
barons, who at the great council held at Merton in 20 Henry III (A.D.
1235-6) refused their consent in the famous words, ‘We will not change
the laws of England which hitherto have been used and approved[195].’
Nevertheless such power of legitimating the children of a couple born
before their legal marriage seems to have been part of the ancient
customs of England before the Conquest. The children were at the wedding
placed under a cloak which was spread over the parents, and were from
this called in Germany, France, and Normandy, ‘mantle children[196].’
-----
Footnote 195:
‘Ad breve Regis de bastardia utrum aliquis natus ante matrimonium
habere poterit hereditatem sicut ille qui natus est post. Responderunt
omnes Episcopi quod nolunt nec possunt ad istud respondere, quia hoc
esset contra communem formam Ecclesie. Ac rogaverunt omnes Episcopi
Magnates ut consentirent quod nati ante matrimonium essent legitimi
sicut illi qui nati sunt post matrimonium quantum ad successionem
hereditariam quia Ecclesia tales habet pro legitimis; et omnes comites
et barones una voce responderunt quod nolunt leges Anglie mutare que
usitatate sunt et approbate.’ 20 Henr. III, _Stat. Mert._
Footnote 196:
Pollock and Maitland, vol. ii. p. 397. I have heard of the cloak
custom as existing in Scotland down almost to our own time.
-----