7.10. 10. Of the domestic Tribunal among the Romans.
The Romans had no particular magistrates, like the Greeks, to
inspect the conduct of women. The censors had not an eye over them, as
over the rest of the republic.
The institution of the domestic tribunal
[20]
supplied the magistracy established among the Greeks.
[21]
The husband summoned the wife's relatives, and tried her in their
presence.
[22]
This tribunal preserved the manners of the republic; and
at the same time those very manners maintained this tribunal. For it
decided not only in respect to the violation of the laws, but also of
manners: now, in order to judge of the violation of the latter, manners
are requisite. The penalties inflicted by this tribunal ought to be, and
actually were, arbitrary: for all that relates to manners, and to the
rules of modesty, can hardly be comprised under one code of laws. It is
easy indeed to regulate by laws what we owe to others; but it is very
difficult of comprise all we owe to ourselves.
The domestic tribunal inspected the general conduct of women: but
there was one crime which, beside the animadversion of this tribunal,
was likewise subject to a public accusation. This was adultery; whether
that in a republic so great a depravation of manners interested the
government; or whether the wife's immorality might render the husband
suspected; or whether, in fine, they were afraid lest even honest people
might choose that this crime should rather be concealed than punished.
Footnotes
[20]
Romulus instituted this tribunal, as appears from Dionysius
Halicarnassus, ii, p. 96.
[21]
See in Livy, xxxix, the use that was made of this tribunal at
the time of the conspiracy of the Bacchanalians (they gave the name of
conspiracy against the republic to assemblies in which the morals of
women and young people were debauched.)
[22]
It appears from Dionysius Halicarnassus, ii, that Romulus's
institution was that in ordinary cases the husband should sit as judge
in the presence of the wife's relatives, but that in heinous crimes he
should determine in conjunction with five of them. Hence Ulpian, tit. 6,
9, 12, 13, distinguishes in respect to the different judgments of
manners between those which he calls important, and those which are less
so: mores, graviores, leviores.
