LAW. 
359 
placable, and the extirpation of a more valuable tree was 
compensated by the moderate fine of twenty-five pounds 
of copper. 9. Magical incantations; which had power, 
in the opinion of the Latian fhepherds, to exhauft the 
■ftrength of an enemy, to extinguifli his life, and aftually to 
entice a whole field of corn from its root. We may fmile 
at fuch an apprehenfion ; but, not two centuries fince, we 
were equally as credulous ourfelves. See 1 Jfa. 12. and 
the cafes cited in the margin of the aft. 
The cruelty of the Twelve Tables againft infolvent 
debtors 'till remains to be told; and we muft prefer the 
literal fenfe of antiquity to the fpecious refinements of 
modern criticifm. After the judicial proof or confellion 
of the debt, thirty days of grace were allowed before a 
Roman was delivered into the power of his fellow-citizen. 
In this private prifon, twelve ounces of rice were his 
daily food ; he might be bound with a chain of fifteen 
pounds weight ; and his mifery was thrice expofed in the 
market-place, to folicit the compaffion of his friends and 
countrymen. At the expiration of fixty days, the debt 
was difcharged by the lofs of liberty or life ; the infol¬ 
vent debtor was either put to death, or fold in foreign Ha- 
very beyond the Tyber; but, if feveral creditors Were 
alike obltinate and unrelenting, they might legally difmttn- 
bcr his body, and fatiate their revenge by this horrid par¬ 
tition. The advocates for this favage law have infilled, 
that it muft ftrongly operate in deterring idlenefs and 
fraud from contracting debts which they were unable to 
difcharge; but experience would diffipate this falutary 
terror, by proving, that no creditor could be found to 
exaft this unprofitable penalty of life or limb. As the 
manners of Rome were infenlibly polifhed, the criminal 
code of the decemvirs was abolifhed by the humanity of 
accufers, witneffes, and judges ; and impunity became 
the confequence of immoderate rigour. 
We proceed to matters of lefs importance, and of lefs 
cruelty.—Polygamy was unknown at Rome, as well as at 
Athens; but nothing remains from which it can be learnt 
within what degrees marriage was permitted or prohibited 
according to the Roman Tables ; like thofe of Solon, they 
probably left them as they had theretofore been accuftomed 
to be contrafted. Ulpian, who does not quote the Ta¬ 
bles upon this point, fays that formerly marriage was 
prohibited between parties as far as the fourth degree of 
kindred, which excluded that of firft coufins ; probably 
this was the law, as we do not find the Romans marrying 
filters, or allying fo nearly as was p fa ft i led by the Greeks. 
The invidious prohibition of marriage between the pa¬ 
trician and plebeian families was abrogated within fix 
years after its enaftmeiit by the decemvirs. The only 
other remaining law of the Twelve Tables concerning 
marriage is one, by which that woman was declared mar¬ 
ried of right who had remained in the houle of her huf- 
band a whole twelvemonth, without ab'fence for three 
nights during tliis period ; in which cafe, like every mo¬ 
vable acquired, a twelvemonth’s pofTeffion made her by 
prefcription the property of the acquirer ; but other forms 
and defcriptions of nuptials exifted from the time of the 
Roman kings, and continued, fome to the 1 alt days of the 
republic, others beyond the golden days of the empire. 
Marriage was twofold ; the jujlee nuptice and the injufia. 
The former was fubdivided into three kinds : n That 
by confarreation, or the eating bread and flour together 
after the regular efpoufals with the con fen t of parents ; 
the gift to the damfel of a golden ring by a fenator or pa¬ 
trician, and an iron one by a plebeian, and the kifs of ra¬ 
tification; fo far the parties were affianced. Solemn facri- 
fice and other ceremonies fticceeded, among which, that 
of carrying the wife by force over the threffiold, in re¬ 
membrance of the Sabine rape, was not forgotten ; and a 
variety of other cuftoms to complete the nuptial tie. 2. 
That by coemption ; where, by payment of three pieces 
of copper money, the wife purchafed a fictitious right of 
heirfhip in her hufband’s fucceffion. The third, by ufu- 
caption, has already been fpoken of; and the wife of the 
laft defcription was, properly fpeaking, the Roman matron. 
Thofe of the two former were the more honourable, and 
termed matrcs familias ; and were entitled, when widows, 
to an equal (hare in the diftribution of their deceafed huf- 
bands’ eftates for life, as a recompence for what they had 
loft on quitting the roof and power of their fathers. No 
reafon feemed to require this (hare being allowed to the 
wife of the third defcription until (lie had been aftually 
acquired by another, for until this period (he had not 
abandoned her right in the inheritance of her own family; 
but, this right once loft, there feems no reafon nor no law 
to exclude her from the fame provifion out of her hufband’s 
eftate to which the other wives were entitled. 
The injujla nuptia were twofold ; injufles legitimes, and 
injujlce ct illegitima -, both were the marriage of concubines; 
the one of a {lave, the other of a free-born Roman Wo¬ 
man ; and both were legalifed, or, more properly fpeaking, 
tolerated, by a law of Numa; but, after the time of the 
decemvirs, the free-born daughter of Rome could enter 
into none but honourable nuptials. However, neither 
the wives nor the iffue of fuch marriages acquired any 
right of fucceffion, though the children of concubines 
bore no perfonal difhonour from their birth. 
Marriage thus contrafted might be diffolved ; the law 
was fuch from the beginning of Rome. The power of 
divorce feems to have refted with the hufband. Romulus 
allowed it to the hufband, but refufed to liften to the com¬ 
plaints of the wife. The grounds of it, as related by 
Plutarch, were, the poifoning his children, falfe keys, and 
adultery. The firft would hardly ever occur where the 
means of procuring fubfiftence were eafy. As to the fe- 
cond, the fondnefs of the fair fex of Rome for wine was 
a vice, probably introduced into the luxurious climate of 
Italy with the follies of Grecian worfhip ; and, though 
it might not afterwards be general, it muft have exifted 
in fome degree, or the law prohibiting the ufe of wine 
among women under pain of death, would never have 
been made, nor afterwards much fpoken of. From the 
time of Romulus, both this offence and adultery had fub- 
jefted the offending female to the judgment of the huf¬ 
band’s domeftic tribunal, who in thefe cafes had the power 
of life and death, if he thought proper to inflift it. In 
early times, the party repudiating muft have affigned 
grounds for the divorce; he was alfo compelled to it by 
the laws of the Tables, and to return to the wife her 
property ; but, notwithftanding this permiffion, to the 
honour of Roman morals it is recorded, that no one di¬ 
vorce occurred from the time of the foundation to be¬ 
yond the five hundredth year of the city. Carvilius, as a 
plea for fo novel an exercife of prerogative, alleged the 
want of offspring; but the right, once exercifed, fet an 
example which even the greateft were not afliamed to copy 
without alleging any reafon whatever. The great Emilius 
not long after divorced the noble and virtuous Papiria, 
who had borne him children not unworthy of himfelf; 
and in the decline of Roman virtue the matter became 
purely optional. Plutarch alfo relates, that a certain Ro¬ 
man, in anfwer to the furprife expreffed by his wife’s re¬ 
latives at his procedure, and their natural inquiries of 
“ Was fhe not fair ? was fhe not chafte ? was flie not fruit¬ 
ful ?” made no other reply, than, holding out his flioe, 
“Is it not handfome? is it not new? yet none knows 
where it pinches but the wearer.” 
Gibbon gives us a different idea upon this fubjeft : 
“ The warmed applaufe (fays he) has been lavilhed on 
the virtue of the Romans, who abftained from the exer¬ 
cife of this tempting privilege above five hundred years ; 
but the fame faft evinces the unequal terms of a connec¬ 
tion, in which the Have was unable to renounce her ty¬ 
rant, and the tyrant was unwilling to relinquifh his flave. 
When the Roman matrons became the equal and volun¬ 
tary companions of their lords, a new jurifprudence was 
introduced ; and marriage, like other partnerfhips, might 
be diffolved by the abdication of one of the affociates. 
In three centuries of profperity and corruption, this prin¬ 
ciple 
