depends. Bearing this in mind, we shall not be able to speak of great depravity in the present period of Roman history, for the Roman family in the second century B.C. was still distinguished by the same order and purity as before. It is true that both the forms of concluding marriages and the legal rights of husband and wife had changed. The religious ceremony of confarreatio, which had been customary in all patrician families, was regularly practised now only in the families of patrician priests. By the side of it the coemptio, the marriage concluded in the form of a purchase, had become common, and also a third form, the usus, which dispensed with all formality. Thus what may be called by way of comparison the form of civil marriage had taken the place of religious marriage. But it is a mistake to suppose that the simplification of the forms of marriage lessened the importance and sanctity of the matrimonial bond. CHAP. XII. married women in without manus. Such a deterioration might be inferred rather from a Position of change in the legal relations of husband and wife. Whilst formerly the power of the husband had always been un- marriage limited, and the wife was subject to the manus, i.e. the dominion of the husband, as the child was subject to the power of the father, law and custom now made it possible to conclude a marriage without manus, in which the wife retained her right of disposing freely of the property that belonged to her. Marriages without manus became gradually general in the time after the Punic wars. But even this addition to personal liberty cannot be considered as a loosening of the old bonds of family order. It did not interfere with the moral relations of married people, and in nowise restricted their duties towards one another, or their privileges so far as they concerned family life. It was with regard to marriage the same phenomenon that is everywhere perceptible in the progress from the old restraint customary in family and tribe to greater individual liberty 1 It is, however, not to be supposed that when the confarreatio had become obsolete all religious ceremonies were abolished. On the contrary, a number of formalities, sacrifices, and auspices continued to be practised. BOOK VI. The Voconian law. in the state. The authority which the husband and father lost was acquired by the state, and the state having thus been strengthened in its authority was able to extend greater personal liberty to each individual. It is evident from the Voconian law,' passed about this time (in the year 169 B.C.) under the auspices of M. Porcius Cato, that the austere admirers of the old time regarded with jealousy the increasing independence of women. The object of this law was to limit the social influence of women by forbidding rich citizens to make them heiresses of more than one half of their whole estate. A great dowry of a woman was looked upon as a great danger to the old discipline and order in house and state, and it was hoped that by artificial means the submission of the wife to her husband would be secured.2 Of course this law was as unavailing as all others which resulted from a misunderstanding of social or psychological conditions. Ways and means were soon found to evade the restrictions of the Lex Voconia. Whoever wished to leave his property to a daughter rather than to some distant relation, had but to make it over in trust to a third person, for the benefit of the heiress he had in view. This became the regular practice, and the number of rich ladies accordingly was not affected by the law, nor the abuse which they might possibly make of their wealth restrained. On the whole the sanctity and dignity of married life were as yet unimpaired in Rome in the period under discussion. Polygamy had never been admitted either by Liv. epit. 61 Q. Voconius Saxa tribunus plebis legem tulit, ne quis mulierem heredem institueret. Cicero, In Verr. ii. 1, 42, 107. Gaius, Instit. ii. 274: Item mulier, quæ ab eo, qui centum millia æris census est, per legem Voconiam heres institui non potest, tamen fideicommisso relictam sibi hereditatem capere potest. The law affected only testators of the highest census. Comp. Lange, Röm. Alterth. ii. 280. That marriage with a rich wife is not always an unmixed blessing was experienced by Roman husbands often enough, and is frequently the topic of satirists. Well known is Juvenal's exclamation (vi. 460), Intolerabilius nihil est quam femina dives,' and the Horatian (Od. III. xxiv. 19), 'Nec dotata regit virum coniux ;' but much earlier, in the time of the ancient republic, the comic writers complain of the same evil. Comp. Plautus, Aulul. II. i. 45, and III. v. XII. Roman law or custom. The mother of the family shared with CHAP. the father the office of a domestic priesthood and the general government of the house. We do not find that Greek and women in Rome sank, as unfortunately they did in Athens, women. to a level where they had no longer any spiritual or moral but merely material and economical relations with their husbands. The Roman matron was not secluded in rooms set apart for the use of women alone. She shared the seat of honour with her husband in the atrium; she was not obliged to hide herself timidly from public view, but could show her face in the streets and market without being considered wanting in modesty, decorum, or chastity.' We have no reason to believe that conjugal love and Antiquity fidelity, the mutual affection of the members of one family of the right and the dignity and purity of domestic life, were materially altered for the worse before the period of the demoralising civil wars. It was a current opinion in Rome after these wars had produced their effect, that divorce was altogether unknown for five hundred years. Confident statements were made to the effect that the first divorce occurred in Rome between the first and the second Punic war,2 when Spurius Carvilius Ruga, a distinguished member of the nobility, put away his wife because she was barren, though he loved her tenderly. This statement is as erroneous as the inferences which have been drawn from it. The Roman marriage never was indissoluble from the first. Even the most solemn contract of marriage by 'confarreatio' could be set aside by an equally solemn 'diffarreatio.' Laws of divorce are referred even to the time of Romulus, which means that they were supposed to be as old as the state itself. There are traces of the forms of divorce in the laws of the twelve tables. But even without these proofs According to Valerius Maximus, vi. 3, 10, C. Sulpicius Gallus, who was consul 243 B.C., divorced his wife, because she had shown herself in public 'capite aperto.' But the severity of Gallus was reproved as excessive, and as a 'horridum supercilium.' 2 Dionys. ii. 25. Gellius, iv. 3; xvii. 21, 44. Valer. Max. ii. 1, 4. BOOK Connexion of divorce with the testas. it would follow from the nature of the husband's power (manus) over his wife, that he could under certain circumstances put her away. Yet public opinion restrained a capricious use of this right and demanded the observance of certain formalities. One of these was the calling of a family council, where the husband would explain his reasons, and might be influenced by the voice of his wife's relatives. If anybody neglected these forms, he exposed himself to public reprobation, though legally his proceeding could not be challenged. Thus, in 307 B.C., about seventy years before the alleged first divorce known in Rome, L. Antonius incurred the displeasure of the censors and was expelled from the senate, because he neglected to consult a family council before he sent away his wife. His right could not be called in question, and was not contested in a court of justice; but the mode in which he exercised it was reproved by the censors in their capacity as guardians of public morality. The single case of L. Antonius is sufficient to prove that the statement about Sp. Carvilius is false. But it patria po- must not be supposed that no cases of divorce occurred before even the time of L. Antonius. It would be unreasonable to suppose that a Roman husband, who possessed unbounded authority over his children, who could sell them as slaves or punish them with death, was bound to a wife for ever without the legal means of dissolving the union. Numerous instances of such dissolutions of marriage must have taken place. But they would not be mentioned in the public annals unless a prominent man was concerned, or some peculiar feature of law or custom was involved. State of feeling with regard to divorce. So much may be allowed to be true in the general impression of the writers of the later annals, that cases of divorce were less frequent in the early period of the republic than after the Gracchi. But that in itself the dissolution of a marriage argued moral depravity, or was looked upon as such, would be a grave error. If a man so eminent in the state and so venerable for his personal character as L. 1 Valer. Max. ii. 9, 2. Æmilius Paullus, the conqueror of Perseus, could divorce his wife who was the mother of L. Scipio Emilianus, the destroyer of Carthage and Numantia-we may wonder that such a family disruption was brought about, but we have no right to infer that any one of the persons concerned was guilty of an unworthy or dishonourable act. No family could be more decorous and pure than that of Emilius Paullus. He was the very pattern of a noble Roman, and his son, who passed by adoption into the equally distinguished house of the Scipios, venerated his divorced mother as long as she lived. CHAP. XII. of Roman women. We are still less entitled to infer moral decay from Morality the stories of prosecutions of matrons for the alleged poisoning of their husbands. The oldest accusation of this kind is related of the good old time of the Samnite wars, and has been rejected in a previous volume as unhistorical.1 We may reasonably entertain the same doubts with regard to a lady of the first nobility, the wife of a consul, and mother of a consul, who was prosecuted for poisoning in the year 180 B.C.2 At that time Rome and the whole of Italy were visited by a malignant epidemic which lasted for three years, and carried off such numbers of people that it became difficult to find recruits for the army. At Rome, L. Calpurnius Piso, one of the two consuls, a prætor, the supreme pontifex, another pontifex, an augur, and many more eminent men of all ranks were carried off. In the universal terror which had seized the people the Sibylline books were consulted, days of prayer were set apart, and extraordinary sacrifices and gifts were offered to Apollo, Esculapius, and Salus. But this was not sufficient to calm the public mind. In looking about for the causes of this great calamity, people hit upon the foolish idea that 1 Vol. i. p. 567. 2 Liv. xl. 37, 5: Necatus consul a Quarta Hostilia uxore dicebatur. Ut quidem filius eius Q. Fulvius Flaccus in locum vitrici consul est declaratus, aliquanto magis infamis mors Pisonis cœpit esse; et testes existebant qui post declaratos consules Albinum et Pisonem, quibus comitiis Flaccus tulerat repulsam, et exprobratum ei a matre dicerent, quod iam ei tertium negatus consulatus petenti esset et adiecisse, pararet se ad petendum, intra duos menses effecturam, ut consul fieret. Inter multa alia testimonia ad causam pertinentia hæc quoque vox nimis eventu comprobata valuit cur Hostilia damnaretur. |