CHAP. XVI.: Of Repudiation and Divorce amongst the Romans.

ROMULUS permitted a husband to repudiate his wife, if she had committed adultery, prepared poison, or procured false keys. He did not grant to women the right of repudiating their husbands. Plutarch Life of Romulus. ^†586 calls this, a law extremely severe.

As the Athenian law gave This was a law of Solon. ^†587 the power of repudiation to the wife as well as to the husband, and as this right was obtained by the women amongst the primitive Romans, notwithstanding the law of Romulus, it is evident that this institution was one of those which the deputies of Rome brought from Athens, and which were inserted into the laws of the twelve tables.

Cicero Mimam res suas sibi habere jussit, ex duodecim tabulis causam addidit, Philip. 2. ^†588 says that the reasons of repudiation sprung from the law of the twelve tables. We cannot then doubt but that this law increased the number of the reasons for repudiation established by Romulus.

The power of divorce was also an appointment, or at least a consequence, of the law of the twelve tables. For, from the moment that the wife or the husband had separately the right of repudiation, there was a much stronger reason for their having the power of quitting each other by mutual consent.

The law did not require that they should lay open the Justinian altered this, Nov. 117. c. 10. ^†589 causes of divorce. In the nature of the thing, the reasons for repudiation should be given, while those for a divorce are unnecessary; because, whatever causes the law may admit as sufficient to break a marriage, a mutual antipathy must be stronger than them all.

The following fact, mentioned by Dionysius Halicarnassensis Lib. 2. ^†590, Valerius Maximus Lib. 2. c. 4. ^†591, and Aulus Gellius Lib. 4. c. 3. 8. ^†592, does not appear to me to have the least degree of probability. Though they had, at Rome, say they, the power of repudiating a wife, yet they had so much respect for the auspices that nobody, for the

space of five hundred and twenty years, ever made According to Dionys. Halic. and Valerius Maximus: and five hundred and twenty-three according to Aulus Gellius. Neither did they agree in placing this under the same consuls. ^†593 life of this right, till Carvilius Ruga repudiated his because of her sterility. We need only be sensible of the nature of the human mind, to perceive how very extraordinary it must be for a law to grant such right to a whole nation and yet for nobody to make use of it. Coriolanus, setting out on his exile, advised his See the speech of Veturia, in Dionys. Halic. lib. 8. ^†594 wife to marry a man more happy than himself. We have just been seeing that the law of the twelve tables and the manners of the Romans greatly extended the law of Romulus. But to what purpose were these extensions, if they never made use of a power to repudiate? Besides, if the citizens had such a respect for the auspices that they would never repudiate, how came the legislators of Rome to have less than they? and how came the laws incessantly to corrupt their manners?

All that is surprizing, in the fact in question, will soon disappear, only by comparing two passages in Plutarch. The regal law Plutarch’s life of Romulus. ^†595 permitted a husband to repudiate in the three cases already mentioned, and “it enjoined, says Plutarch Ibid. ^†596, that he, who repudiated in any other case, should be obliged to give the half of his substance to his wife, and that the other half should be consecrated to Ceres.” They might then repudiate in all cases, if they were but willing to submit to the penalty. Nobody had done this before Carvilius Ruga Indeed, sterility is not a cause mentioned by the law of Romulus: but, to all appearance, he was not subject to a confiscation of his effects, since he followed the orders of the censors. ^†597, who, as Plutarch says in another place In his comparison between Theseus and Romulus. ^†598, “put away his wife for her sterility

two hundred and thirty years after Romulus.” That is, she was repudiated seventy one years before the law of the twelve tables, which extended both the power and causes of repudiation.

The authors I have cited say, that Carvilius Ruga loved his wife; but that the censors made him take an oath to put her away, because of her barrenness, to the end that he might give children to the republic; and that this rendered him odious to the people. We must know the genius and temper of the Romans before we can discover the true cause of the hatred they had conceived against Carvilius. He did not fall into disgrace with the people for repudiating his wife; this was an affair that did not at all concern them. But Carvilius had taken an oath to the censors, that, by reason of the sterility of his wife, he would repudiate her to give children to the republic. This was a yoke which the people saw the censors were going to put upon them. I shall discover, in the prosecution of this work Book 23. c. 3. ^†599, the repugnance which they always felt to regulations of the like kind. But whence can such a contradiction betwixt those authors arise? It is because Plutarch examined into a fact, and the others have recounted a prodigy.