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
[24]
calls this a law extremely severe.
As the Athenian law
[25]
gave the power of repudiation to the wife as
well as to the husband, and as this right was obtained by the women
among 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 in the laws of the
Twelve Tables.
Cicero says that the reasons of repudiation sprang from the law of
the Twelve Tables.
[26]
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 causes of
divorce
[27]
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 Halicarnassus,
[28]
Valerius Maximus,
[29]
and Aulus Gellius,
[30]
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
[31]
use 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
[32]
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 surprising in the fact in question will soon disappear,
only by comparing two passages in Plutarch. The regal law
[33]
permitted a husband to repudiate in the three cases already mentioned, and "it
enjoined," says Plutarch,
[34]
"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,
[35]
who, as Plutarch says in another place,
[36]
"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,
[37]
the repugnance which they always felt to
regulations of the like kind. But whence can such a contradiction
between those authors arise? It is because Plutarch examined into a
fact, and the others have recounted a prodigy.
