Volume 1

A dictionary of Christian antiquities : being a continuation of the 'Dictionary of the Bible' / edited by William Smith and Samuel Cheetham ; illustrated by engravings on wood.

Date:: [between 1890 and 1899?]

Credit: A dictionary of Christian antiquities : being a continuation of the 'Dictionary of the Bible' / edited by William Smith and Samuel Cheetham ; illustrated by engravings on wood. Source: Wellcome Collection.

46/1096 (page 26)

$for adulteiy as a public wrong (Cod. J. 9. tit. 9, s. 1.). This evidently flows from the de- fluition of the crime, but the glossators’ reasons are curious She cannot complain jure nuiriti because she is not a husband, nor jure extranei because she is a woman. The magistrate was bound by law to inquire into the morals of any husband accusing his wife (Dig. 48, tit. 5, s. 13 § 5). This section is from an Antonine rescript quoted at greater length from the Cod. Gregorian, by Augustine, De Conjug. Adulterin. lib. ii. 7 (viii.). The* husband’s guilt did not act as a conipensatio criminis. In Eng- land the contrary holds, and a guilty accuser shall not prevail in his suit (see Burns, Eccl. Law., art. “ Marriage.”). But the wife’s real remedy lay in the use of divorce which during the two last centuries of the Republic became the common resource of women under grievances real or fancied, and for purposes of the worst kind. There is a graphic picture of this side of Roman life in Boissier’s Ciceron et ses Amis; and for the literature and laws, see “ Divor- tium ” in Smith’s Diet, of Antiquities. Bris- sonius de Formulis gives a collection of the phrases used in divorcing. Constantine allowed only three causes on either side — on the woman’s these were her husband’s being a homicide, poisoner, or violator of sepulchres (God. Theod. 3, tit. 16, s. 1; cf. Edict. Theodor. 54). This law was too strict to be maintained ; the variations of Christian princes may be seen in Cod. J. 5. tit. 17. Theodos. and Valentin. 1. 8, added to other causes the hus- band’s aggravated incontinency. Anastasius, 1. 9, permitted divorce by common consent; this again “ nisi castitatis concupiscentia ” was taken away by Justinian in his Novell. 117, jt^hich (cap. 9) allowed amongst other causes the husband’s gross unchastity. Justin restored divorce by common consent. The Church viewed the general liberty to re- pudiate under the civil law, with jealousy; cf. Greg. Naziaiiz. Epp. 144, 5 (al. 176, 181), and Victor Antiochen. on Mark x. 4-12. But it was felt that women must have some remedy for extreme and continued wrongs, and this lay in their using their legal powers, and submitting the reasonableness of their motives to the judg- ment of the Church. Basil’s Can. 35 recognizes such a process; see under our Div. III. Spiritual Penalties, No. 2. Still from what has been said, it is plain that divorce might become a frequent occasion of adultery, since the Church held that a married person separated from insufficient causes really continued in wedlock. Re-marriage was therefore always a serious, sometimes a cri- minal step. [Divorce.] Marriage after a wife’s death was also viewed with suspicion. Old Rome highly valued conti- nence under such circumstances ; Val. Max. ii. 1, § 3, gives the fact; the feeling pervades those tender lines which contrast so strongly with Catullus V. ad Lesbiam— “ Occidit mea Lux, meumque Sidus; Sed caram sequar; arboresque ut alta bhD tel lure suos agunt amores, El radicibus Iniplicantur Imis: Sic nos consoclabitnur sej-ultl, Et vi\ is erimus beatiores.” Similar to Val. Max. is Herm. Mandat, iv. 4. Gregory Nazianz. (Horn. 37, al. 31) says that marriage represents Christ and the Church, and there are not two Christs ; the first mar- riage is law, a second an indulgence, a third swinish. Against marriages beyond two, see Neocaes. 3, Basil, 4, and Leo. Novell. 90. Curi ously enough, Leo (cf. Diet. Biog.) was him- self excommunicated by the patriarch for marry- ing a fourth wife. [Digamy.] III. Penalties.—We are here at once met by a very singular circumstance. Ti-ibonian attri- butes to Constantine and to Augustus two suspi- ciously corresponding enactments, both making death the penalty of this crime, and both inflict- ing that death by the sword. The founder of the Empire and the first of Christian emperors are thus brought into a closeness of juxtaposi- tion which might induce the idea that lawyers, like mythical poets, cannot dispense with Epo- nyms. The Lex Julia furnishes a title to Cod. Theod. 9, tit. 7 ; Dig. 48, tit.; and Cod. J. 9, tit. 9; but in none of these places is the text preserved, and we only know it from small excerpts. The law of Constantine in Cod. Theod. 9, tit. 7, s. 2, contains no capital penalty, but in Cod. J. 9, tit. 9, s. 30, after fifteen lines upon accusation, six words are added—“ Sacrileges autem nuptiarum gladio puniri oportet.” The word “ sacrileges ” used substantively out of its exact meaning is very rare (see Facciolati). For the capital clause, ascribed to the Lex Julia, see Instit. iv. 18,4; but this clause has been since the time of Cujacius rejected by most critical jurists and historians, of whom some maintain the law of Constantine, others suppose a confusion between the great em- peror and his sons. Those who charge Tribonian with emhlcmata generally believe him to have acted the harmonizer by authority of Justinian. On these two laws there is a summary of the case in Selden, Uxor. Ebr. iii. 12, with foot references. Another is the comment in Gothofred’s ed. of Cod. Theod. vol. iv. 296, 7. Heineccius is not to be blindly trusted, but in Op. vol. III. his Syll. xi. De Secta Triboniano-mastigum contains curious mat- ter, and misled Gibbon into the idea of a regular school of lawyers answering this description. The passages in Cujacius may be traced through each volume by its index. See also Hoffmann, Ad Leg. Jul. (being Tract iv. in Fellenberg’s Jurisprudentia Antigua'); Lipsii Excurs. in Tacit. Ann. iv.; Orelli, on Tacit. Ann. ii. 50; Ortolan, Explication des Lnstituts, iii. p. 79J.; Sandars, On the Institutes, p. 605 ; Diet. Antig., “ Adult- erium”; and Diet. Biog., “ Justinianus.” The fact most essential to us is that prae- Christian emperors generally substituted their own edicts for the provisions of the Lex Julia, and that the successors of Constantine were equally diligent in altering his laws. Histo- rians have frequently assumed the contrary; Valesius’ note on Socrates, v. 18, may serve by way of example. The Church could not avoid adapting her canons to the varied states of civil legislation; cf. Scholia on Can. Apost. 5, and Trull. 87, besides many other places. The true state of the case will become plainer if we briefly mention the different ways in v/hich adultery might be legally punished. 1. The Jus Occidendi, most ancient in its ori- gin ; moderated under the Empire ; but-not taken away by Christian princes. Compare Dig. 48, tit. 5, s. 20 to 24, 32 and 38, with same 48, tit. 8$