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and before the union of persons had taken place, it was capable of the application of the term dissolution; and Repudium was the word employed to designate the separation of persons in this status in society. Divortium was the separation of persons already married. So the writers have explained these terms: "Divortium inter virum et uxorem fieri dicitur. Repudium vero sponse remitti videtur, quod in uxoris personam non cadit. Inter Divortium et repudium hoc interest: quod repudium etiam futurum matrimonium potest repudiare; non recte autem sponsa divortisse dicitur, quod Divortium ex eo dictum est, quod in diversas partes eunt qui discedunt." Repudium, then, was a dissolution of espousals; Divortium a dissolution of marriage. In both, however, a certain form of words was necessary, with various other solemnities; allusion to which has been already made.
In the Divortium, however, a two-fold distinction was observable: the one which merely effected a separation of the parties from the intercourse of the married state; bed, board, and mutual cohabitation, (à mensâ et thoro;) the other, which was a dissolution of the very vinculum or bond of marriage, and which was for graver causes than the former.
Thomas Aquinas summed up, in a quaint
tetrastic, twelve causes which might found sentences of nullity, of repudiation, or of the two kinds of Divorce; to which, some other, as monkish as himself, added two more lines, increasing the causes to fourteen, and to these were afterwards added two more. The former are contained in the note.*
But we must now notice the penalties attached to Adultery by the Emperors.
It has been erroneously supposed, that the Lex Julia de Adulteriis, condemned the offender to death, but it did not; the penalty there was deportatio or relegatio: although Octavius, perhaps, in one or two instances, overstepped the limits which his own law had prescribed, and put the adulterer to death. It was by the law of Constantine that a capital punishment was first inflicted upon those offenders. This account is confirmed by Vinnius, in his comment on the Institutes; his expression is, "Gladio punit
*"Error, conditio, votum, cognatio, crimen,
Si parochi, et duplicis desit præsentia testis,
Hæc facienda vetant connubia, facta retractant."
Adulter.* Hæc pœna non est ex lege Julia sed Constantini est. Pœna legis Juliæ relegatio erat, ut constat ex Tacito. Certe capitatem non fuisse." Another writer says; "Primus Constantinus capitis pœna Adulterii crimen vindicandum constituit."
Many of the subsequent edicts of the Emperors were so contrary to the Gospel rule, that it is difficult at all to concede to them any pretensions to conformity with Christian principles. St. Jerome strongly animadverts on this opposition. Aliæ," he says, "aliæ sunt leges Cæsarum, aliæ Christi: aliud Papinianus, aliud Paulus noster præcipit. Apud illos viris inpudicitiæ pœna laxantur, et solo stupro atque Adulterio condemnato, passim per lupanaria et ancillulas libido permittitur, quasi culpam, dignitas faciat non voluntas. Apud nos, quod non licet feminis non licet viris, et eadem servitus pari conditione censetur." This is ever the effectual answer to all those unjust partialities which, men being the law-makers, have so frequently characterized the direction of penal enactments; where, like the fable in Esop of the artist and the lion, a bias is ever displayed in
Vinn. Com. Instit. lib. iv. Tit. 18. Text. 4. p. 903. Tacit. lib. i. Annal. 2 and 3.
favour of themselves. The application of it, we shall discover more particularly in their regulations respecting Divorce. For the present, we speak of the punishment of Adultery.
Under Constantine, then, it was capital. Under Macrinus, many adulterers were burnt at a stake. Under Constantius and Constans, they were burned, or sewed alive in sacks, and thrown into the sea. "Insuère culleo vivos, vel exurere."* Under Leo and Marcian, the penalty was abated to perpetual banishment, or cutting off the nose.
Under Justinian, a further mitigation of this punishment took place; he was contented with scourging, and the loss of dower in the adulteress. He condemned her also, under some circumstances, to be shut up in a nunnery; but he allowed the husband to receive her again at the end of two years; if he was not willing to do this, or if he died before this time, the wife was condemned to be shaved, and to take the monastic habit, and to spend the remainder of her life in that condition. Still the penalty continued death in the husband. † The
* Theodosius, lib. 2.
+ " Capitalem autem pœnam Justitianus in masculis probat; mulierem vero verberibus clausam in mona
reason of this difference is stated to be, that the woman was the weaker vessel; but, perhaps, the Empress Theodosia was the author of this, as well as of many other laws, wherein a considerable favour and leniency are displayed in the mitigation of punishments awarded to her sex. This is a further confirmation of the observation on the comment of St. Jerome, in a preceding page.
But Adultery, besides its secular consequences, had to appear before a spiritual tribunal.
By the canon law,* adulterers were said to
sterium detrudi præcipit; datâ potestate marito intra biennium, si hoc existimaverit, eam inde revocandi, quo transacto, aut viro præmortuo, eam raso capite, monastico habitu amiciri et illic omni vitæ tempore manere jubet."
Brissonius. Another observation is, "Sacrilegios nuptiarum gladio puniri oportet."
This must refer to the case of the wife, detected by the husband, in the act of Adultery, and in this event, contemplated by the laws of Solon, and in one of the Novels of Justinian, allowance was made for the irritated passion. of wounded affection, and the husband was allowed to kill her; but this permission was thus guarded, he must have previously given the person, whom he suspected of this corrupt intercourse, three successive warnings in writing, not to converse with his wife.
* Can. ix. 10. §. 30.