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OF THE ROMAN EMPIRE
481
by the loss of the sixth or eighth part of her marriage-portion. The Christian princes were the first who specified the just causes of a private divorce; their institutions, from Constantine to Justinian, appear to fluctuate between the custom of the empire and the wishes of the church;[1] and the author of the Novels too frequently reforms the jurisprudence of the Code and Pandects. In the most rigorous laws, a wife was condemned to support a gamester, a drunkard, or a libertine, unless he were guilty of homicide, poison, or sacrilege, in which cases the marriage, as it should seem, might have been dissolved by the hand of the executioner. But the sacred right of the husband was invariably maintained to deliver his name and family from the disgrace of adultery; the list of mortal sins, either male or female, was curtailed and enlarged by successive regulations, and the obstacles of incurable impotence, long absence, and monastic profession, were allowed to rescind the matrimonial obligation. Whoever transgressed the permission of the law was subject to various and heavy penalties. The woman was stript of her wealth and ornaments, without excepting the bodkin of her hair; if the man introduced a new bride into his bed, her fortune might be lawfully seized by the vengeance of his exiled wife. Forfeiture was sometimes commuted to a fine; the fine was sometimes aggravated by transportation to an island or imprisonment in a monastery; the injured party was released from the bonds of marriage; but the offender, during life or a term of years, was disabled from the repetition of nuptials. The successor of Justinian yielded to the prayers of his unhappy subjects, and restored the liberty of divorce by mutual consent; the civilians were unanimous,[2] the theologians were divided,[3] and the am-
- ↑ Aliæ sunt leges Cæsarum, aliæ Christi; aliud Papinianus, aliud Paulus noster præcipit (Jerom, tom. i. p. 198. Selden, Uxor Ebraica, l. iii. c. 31, p. 847-853).
- ↑ The Institutes are silent, but we may consult the Codes of Theodosius (l. iii. tit. xvi. with Godefroy's Commentary, tom. i. p. 310-315) and Justinian (l. v. tit. xvii.), the Pandects (l. xxiv. tit. ii.) and the Novels (xxii. cxvii. cxxvii. cxxxiv. cxl.). Justinian fluctuated to the last between the civil and ecclesiastical law.
- ↑ In pure Greek, πορνεία is not a common word; nor can the proper meaning, fornication, be strictly applied to matrimonial sin. In a figurative sense, how far, and to what offences, may it be extended? Did Christ speak the Rabbinical or Syriac tongue? Of what original word is πορνεία the translation? How variously is that Greek word translated in the versions ancient and modern! There are two (Mark, x. 11, Luke, xvi. 18) to one (Matthew, xix. 9) that such ground of divorce was not accepted by Jesus. Some critics have presumed to think, by an evasive answer, he avoided the giving offence either to the school of Sammai or to that of Hillel (Selden, Uxor Ebraica, l. iii. c. 18-22, 28, 31).
