wife was transferred at marriage to the authority of her husband, in manus, and consequently became so far subject to him that he could, at his will, renounce his rule over her, and terminate his companionship, subject at least to an adjustment of the pecuniary rights which were disturbed by such action. So clearly was the power of the husband derived from that of the father, that for a long period a father, in the exercise of his potestas, could take his daughter from her husband against the wishes of both. It may be presumed that this power, anomalous as it appears, was not unexercised, as we find that a constitution of Antoninus Pius prohibited a father from disturbing a harmonious union, and Marcus Aurelius afterwards limited this prohibition by allowing the interference of a father for strong and just cause—magna et justa causa interveniente. Except in so far as it was restrained by special legislation, the authority of a husband in the matter of divorce was absolute. As early indeed, however, as the time of Romulus, it is said that the state asserted its interest in the permanence of marriage by forbidding the repudiation of wives unless they were guilty of adultery or of drinking wine, on pain of forfeiture of the whole of an offender’s property, one-half of which went to the wife, the other to Ceres. But the law of the XII. Tables, in turn, allowed freedom of divorce. It would appear, however, that the sense of the community was so far shocked by the inhumanity of treating a wife as mere property, or the risk of regarding marriage as a mere terminable contract, that, without crystallizing into positive enactment, it operated to prevent the exercise of so harsh and dangerous a power. It is said that for 500 years no husband took advantage of his power, and it was then only by an order of a censor, however obtained, that Spurius Carvilius Ruga repudiated his wife for barrenness. We may, however, be permitted to doubt the genuineness of this censorial order, or at least to conjecture the influence under which the censor was induced to intervene, when we find that in another instance, that of L. Antonius, a censor punished an unjust divorce by expulsion from the senate, and that the exercise of their power by husbands increased to a great and alarming extent. Probably few of the admirers of the greatest of Roman orators have not regretted his summary and wholly informal repudiation of Terentia. At last the lex Julia de adulteriis, while recognizing a power of divorce both in the husband and in the wife, imposed on it, in the public interest, serious restrictions and consequences. It required a written bill of divorce (libellus repudii) to be given in the presence of seven witnesses, who must be Roman citizens of age, and the divorce must be publicly registered. The act was, however, purely an act of the party performing it, and no idea of judicial interference or contract seems to have been entertained. It was not necessary for either husband or wife giving the bill to acquaint the other with it before its execution, though it was considered proper to deliver the bill, when made, to the other party. In this way a wife could divorce a lunatic husband, or the paterfamilias of a lunatic wife could divorce her from her husband. But the lex Julia was also the first of a series of enactments by which pecuniary consequences were imposed on divorce both by husbands and wives, whether the intention was to restrain divorce by penalties of this nature, or to readjust pecuniary relations settled on the basis of marriage and disturbed by its rupture. It was provided that if the wife was guilty of adultery, her husband in divorcing her could retain one-sixth of her dos, but if she had committed a less serious offence, one-eighth. If the husband was guilty of adultery, he had to make immediate restitution of her dowry, or if it consisted of land, the annual proceeds for three years; if he was guilty of a less serious offence, he had six months within which to restore the dos. If both parties were in fault, no penalty fell on either. The lex Julia was followed by a series of acts of legislation extending and modifying its provisions. The legislation of Constantine, A.D. 331, specified certain causes for which alone a divorce could take place without the imposition of pecuniary penalties. There were three causes for which a wife could divorce her husband with impunity: (1) murder, (2) preparation of poisons, (3) violation of tombs; but if she divorced him for any other cause, such as drunkenness, or gambling or immoral society, she forfeited her dowry and incurred the further penalty of deportation. There were also three causes for which a husband could divorce his wife without incurring any penalty: (1) adultery, (2) preparation of poisons, (3) acting as a procuress. If he divorced her for any other cause, he forfeited all interest in her dowry; and if he married again, the first wife could take the dowry of the second.
In A.D. 421 the emperors Honorius and Theodosius enacted a law of divorce which introduced limitations on the power of remarriage as an additional penalty in certain cases. As regards a wife: (1) if she divorced her husband for grave reasons or crime, she retained her dowry and could remarry after five years; (2) if she divorced him for criminal conduct or moderate faults, she forfeited her dowry, became incapable of remarriage, and liable to deportation, nor could the emperor’s prerogative of pardon be exerted in her favour. As regards a husband: if he divorced his wife (1) for serious crime, he retained the dowry and could remarry immediately; (2) for criminal conduct, he did not retain the dowry, but could remarry; (3) for mere dislike, he forfeited the property brought into the marriage and could not remarry.
In A.D. 449 the law of divorce was rendered simpler and certainly more facile by Theodosius and Valentinian. It was provided that a wife could divorce her husband without incurring any penalty if he was convicted of any one of twelve offences: (1) treason, (2) adultery, (3) homicide, (4) poisoning, (5) forgery, (6) violating tombs, (7) stealing from a church, (8) robbery, (9) cattle-stealing, (10) attempting his wife’s life, (11) beating his wife, (12) introducing immoral women to his house. If the wife divorced her husband for any other cause, she forfeited her dowry, and could not marry again for five years. A husband could divorce his wife without incurring a penalty for any of these reasons except the last, and also for the following reasons: (1) going to dine with men other than her relations without the knowledge or against the wish of her husband; (2) going from home at night against his wish without reasonable cause; (3) frequenting the circus, theatre or amphitheatre after being forbidden by her husband. If a husband divorced his wife for any other reason, he forfeited all interest in his wife’s dowry, and also any property he brought into the marriage.
The above sketch of the legislation prior to the time of Justinian, while it indicates a desire to place the husband and wife on something like terms of equality as regards divorce, indicates also, by its forbidding remarriage and by its pecuniary provisions in certain cases, a sense in the community of the importance in the public interest of restraining the violation of the contract of marriage. But to the Roman marriage was primarily a contract, and therefore side by side with this legislation there always existed a power of divorce by mutual consent. We must now turn to those principles of the Christian religion which, in combination with the legislation above described, produced the law formulated by Justinian.
The Christian View of Divorce.—The Christian law of divorce as enunciated by its Founder was expressed in a few words, but these, unfortunately, by no means of agreed interpretation. To appreciate them it is necessary to consider the enactment of the Mosaic law, which also was expressed in few words, but of a meaning involved in much doubt. The phrase in Deut. xxiv. 1-4, which is translated in the Authorized Version “some uncleanness,” but in the Revised Version, “some unseemly thing,” and which is the only cause stated to justify the giving of a “bill of divorcement,” was limited by the school of Shanmai to moral delinquency, but was extended by the rival school of Hillel to causes of trifling importance or even to motives of caprice. The wider interpretation would seem to be supported by the words of Christ (Matt. v. 31), who, in indicating His own doctrine in contradistinction to the law of Moses, said, “Whosoever shall put away his wife, saving for the cause of fornication (πορνείας), causeth her to commit adultery; and whosoever shall marry her that is divorced committeth adultery.” The meaning of these words of Christ Himself has been involved in controversy, which perhaps was nowhere carried on with greater acuteness or under
