§ 19. ELEVATION OF WOMAN AND THE FAMILY. 113
protected by restrictions upon the boundless liberty of divorce which had obtained from the time of Augustus, and had vastly hastened the decay of public njorals. Still, the strict view of the fathers, who, following the word of Christ, recognized adultery alone as a sufficient ground of divorce, could not be carried out in the state.' The legislation of the emperors in this matter wavered between the licentiousness of Rome and the doctrine of the church. So late as the fifth century we hear a Christian author complain that men exchange wives as they would garments, and that the bridal chamber is exposed to sale like a shoe on the market ! Justinian attempted to bring the public laws up to the wish of the church, but found himself compelled to relax them ; and his successor allowed divorce even on the ground of mutual consent.'
Concubinage was forbidden from the time of Constantine, and adultery punished as one of the grossest crimes." Yet here also pagan habit ever and anon reacted in practice, and even the law seems to have long tolerated the wild marriage which rested only on mutual agreement, and was entered into without
' C. Theod. iii. 16: de repudiis. Hence Jerome say3 in view of this, Ep. 30 (al. 84) ad Oceanum : " Aline sunt leges Ciesarum, aliie Christi ; aliud Papinianus [the most celebrated Roman jurist, died a.d. 212], aliud Paulas noster praBcipit."
"^ Gibbon: "The dignity of marriage was restored by tlie Christians. . . . 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, and the author of the Novels too frequently reforms the jurisprudence of the Code and the Pandects. . . . The successor of Justinian yielded to the prayers of his unhappy subjects, and restored the liberty of divorce by mutual consent."
' In a law of 326 it is called " faciims atrocissimum, scclus immane." Cod. Theod. 1. ix. tit. 7, 1. 1 sq. And the definition of adultery, too, was now made broader. According to the old Roman law, the idea of adultery on the part of the man was limited to illicit intercourse with the married lady of a free citizen, and was thought punishable not so much for its own sake, as for its encroachment on tlie rights of another husband. Hence Jerome says, 1. c, of the heathen: " Apud illos viris impudicitiee frena laxantur, et solo stupro et adulterio condemnato passim per lupanaria et ancillulas libido permittitur ; quasi culpam dignitas faciat, non voluntas. Apud nos quod non licet feminis, asque non licet viris, et eadem servitus pari conditione censetur." Yet the law, even under the Christian emperors, still excepted carnal intercourse with a female slave from adultery. Thus the state here also stopped short of the church, and does to this day in countries where the instil utioa of slavery exists.
114: THIKD PERIOD. A.D. 311-590.
convenant, dowry, or ecclesiastica. sanction.' SulemnizHtiop by the cliurcli was not re<2uired by the state as tlie condition of a legitimate marriage till the eighth century. Second marriage, a^.so, and mixed marriages with heretics and heathens, continued to be allowed, notwithstanding the disapproval of the stricter church teachers; only marriage M^ith Jews wm prohibited, on account of their fanatical hatred of the Christiajis.''
3. The i^ower of fathers over their children, which according to the old Roman law extended even to their freedom and life, had been restricted by Alexander Severus under the influence of the monarchical spirit, which is unfavorable to private jurisdiction, and was still further limited under Constantino. This emperor declared the killing of a child by its father, which the Pomj)eian law left unpunished, to be one of tlio greatest crimes.' But the cruel and unnatural practice of exposing children and selling them into slavery continued for a long time, especially among the laboring and agricultural classes. Even the indirect measures of Valentinian and Theodosius I. could not eradicate the evil. Theodosius in 391 commanded that children which had been sold as slaves by their father from poverty, should be free, and that without indemnity to the purchasers ; and Justinian in 529 gave all exposed children without exception their freedom.*
' Even a council at Toledo in 398 conceded so far on tliis point as to decree, can. 17 : " Si quis habens uxorern fidelis concubinam habeat, nou commuuicet. Ceterum is, qui uon habet uxorem ct pro uxore concubinam habeat, a communione nou repellatur, tantum ut unius nuilieris aut uxoris aut concubina;, ut ei placuerit, sit conjuuctioue coutcntus. Alias vero vivcns abjiciatur donee dcsinat et per pcenitentisun /evertatur."
" Cod. Theod. iii. 7, 2 ; C. Justin, i. 9, 6. A proposal of marriage to a nun was ««*u puuislied with death (ix. 25, 2).
* A.D. 318; Valentinian did the same in 374. Cod. Theod. ix. tit. 14 and 15, 'Comp. the Pandects, lib. xlviii. tit. 8, 1. ix.
* Cod. Theod. iii. 3, 1 ; Cod. Just. iv. 43, 1; viii. 52, 3. Gibbon says: '"The Koman empire was stained with the blood of infants, till such murders were included, by Valentinian and his colleagues, in the letter and spirit of the Cornelian law. The lessons of jurisprudence and Christianity had been inetHcient to eradicatfl this inbumaii practice, till their gentle influence was fortified by the terrors of capita] punishmeat."