favour of themselves. The application of it, we shall discover more particularly in their regulations respecting Divorce. For the present, we speak of the punishment of Adultery.

Under Constantine, then, it was capital. Under Macrinus, many adulterers were burnt at a stake. Under Constantius and Constans, they were burned, or sewed alive in sacks, and thrown into the sea." Insuère culleo vivos, vel exurere."* Under Leo and Marcian, the penalty was abated to perpetual banishment, or cutting off the nose.

Under Justinian, a further mitigation of this punishment took place; he was contented with scourging, and the loss of dower in the adulteress. He condemned her also, under some circumstances, to be shut up in a nunnery; but he allowed the husband to receive her again at the end of two years; if he was not willing to do this, or if he died before this time, the wife was condemned to be shaved, and to take the monastic habit, and to spend the remainder of her life in that condition. Still the penalty continued death in the husband. † The

Theodosius, lib. 2.

+ Capitalem autem pœnam Justitianus in masculis probat; mulierem vero verberibus clausam in mona

reason of this difference is stated to be, that the woman was the weaker vessel; but, perhaps, the Empress Theodosia was the author of this, as well as of many other laws, wherein a considerable favour and leniency are displayed in the mitigation of punishments awarded to her sex. This is a further confirmation of the observation on the comment of St. Jerome, in a preceding page.

But Adultery, besides its secular consequences, had to appear before a spiritual tribunal.

By the canon law,* adulterers were said to

sterium detrudi præcipit; datâ potestate marito intra biennium, si hoc existimaverit, eam inde revocandi, quo transacto, aut viro præmortuo, eam raso capite, monastico habitu amiciri et illic omni vitæ tempore manere jubet."

Brissonius. Another observation is, "Sacrilegios nuptiarum gladio puniri oportet."

This must refer to the case of the wife, detected by the husband, in the act of Adultery, and in this event, contemplated by the laws of Solon, and in one of the Novels of Justinian, allowance was made for the irritated passion of wounded affection, and the husband was allowed to kill her; but this permission was thus guarded, he must have previously given the person, whom he suspected of this corrupt intercourse, three successive warnings in writing, not to converse with his wife.

* Can. ix. 10. §. 30.

be "sacrilegious persons," and, therefore, ecclesiastical judges might proceed against a layman for this crime. But that which gave the church its jurisdiction, in matters of this kind, is to be discovered, rather in the partiality felt by the Emperors towards those Bishops, who had been the means of converting them to Christianity. Adultery is not a spiritual offence in its own nature, any more than murder; both are offences against the second table but the Emperors were willing to confer a power on the church of investigating and punishing this crime: and they considered the infraction of a bond, which the church had sealed, a proper subject for ecclesiastical cognizance. Accordingly, excommunication in a layman, and deposition in a churchman, were made to follow this crime.

In relation to Divorce, the edict of Constantine, in A. D. 331, to which reference has been already made, was framed particularly with a view to lessen its frequency. Formerly, drunkenness and gaming in the man, had, by custom, authorized the woman to leave him; and slighter causes gave the same permission to the husband; but by that edict, three causes were mentioned, to which the licence of separation was

restricted. The man was not to be quitted, unless he was a murderer, a poisoner, or a robber of graves; nor the woman repudiated, unless she was an adulteress, a poisoner, or a corrupter of youth. The imagination is somewhat puzzled, to conceive the reasons which assigned exclusively these vices as the causes of Divorce. About six years after, the same Emperor permitted an absence of four years to entitle to a Divorce. But this was limited to the case of soldiers, whose wives, not having heard either of, or from them, during that period, might marry again.

The first edict of Constantine is ratified by Honorius, Theodosius the Great, and Constantius, in 421. But in 429, this Theodosius (of whom Barbeyrac in Grotius says, "il consultoit fort les Evêques") determined to abrogate it, and, accordingly, he and Valentinian gave a new liberty of Divorce. The exordium of their decree strongly reprobates the severity of the former enactments, and opens the door afresh to new freedom in this particular. But the inconveniences of this were soon felt; and in the year 449, the same Emperor restored it, and limited the permission of Divorce nearly to the same causes as before. One feature in the new law was this, that besides Adultery on the

part of the husband, and the flagrant crimes of poisoning, &c., which entitled the wife to a Divorce, this of cruelty towards her was now added, (the Divorce propter sævitiam;) cruelty, however, amounting to peril of life. Divorces, by mutual consent, had previously prevailed. This edict, however, altered some of the provisions which attended such separations, and allowed the wife to marry again within one year; before, it was not permitted till after a lapse of five.

This was the true state of Divorce from the time of Constantine to that of Justinian. This last Emperor added several reasons for separation. He attempted to justify the loosening of the bond of marriage, on the general maxim that, in human affairs, there is nothing lasting or permanent; and that, consequently, marriages may be annulled; sometimes, with the consent of both parties, or upon some other reasonable account. The liberty of Divorce was thus rather encouraged than checked, and the passion for monastic vows, and a profession of chastity, tended still more to augment it.

Justinian had, at first, stopt the current a little, but his grandson, Justin, yielding to the prayers of his unhappy subjects, (as it is sarcastically stated by Gibbon,) again restored

L