tetrastic, twelve causes which might found sentences of nullity, of repudiation, or of the two kinds of Divorce; to which, some other, as monkish as himself, added two more lines, increasing the causes to fourteen, and to these were afterwards added two more. The former are contained in the note.* But we must now notice the penalties attached to Adultery by the Emperors. It has been erroneously supposed, that the Lex Julia de Adulteriis, condemned the offender to death, but it did not; the penalty there was deportatio or relegatio: although Octavius, perhaps, in one or two instances, overstepped the limits which his own law had prescribed, and put the adulterer to death. It was by the law of Constantine that a capital punishment was first inflicted upon those offenders. This account is confirmed by Vinnius, in his comment on the Institutes; his expression is, "Gladio punit * "Error, conditio, votum, cognatio, crimen, Cultûs disparitas, vis, ordo, ligamen, honestas, Si parochi, et duplicis desit præsentia testis, Hæc facienda vetant connubia, facta retractant." Adulter.* Hæc pœna non est ex lege Julia sed Constantini est. Pœna legis Juliæ relegatio erat, ut constat ex Tacito. Certe capitatem non fuisse." Another writer says; † "Primus Constantinus capitis pœna Adulterii crimen vindicandum constituit.' 66 Many of the subsequent edicts of the Emperors were so contrary to the Gospel rule, that it is difficult at all to concede to them any pretensions to conformity with Christian principles. St. Jerome strongly animadverts on this opposition. Aliæ," he says, "aliæ sunt leges Cæsarum, aliæ Christi: aliud Papinianus, aliud Paulus noster præcipit. Apud illos viris inpudicitiæ pœna laxantur, et solo stupro atque Adulterio condemnato, passim per lupanaria et ancillulas libido permittitur, quasi culpam, dignitas faciat non voluntas. Apud nos, quod non licet feminis non licet viris, et eadem servitus pari conditione censetur." This is ever the effectual answer to all those unjust partialities which, men being the law-makers, have so frequently characterized the direction of penal enactments; where, like the fable in Esop of the artist and the lion, a bias is ever displayed in * Vinn. Com. Instit. lib. iv. Tit. 18. Text. 4. p. 903. Tacit. lib. i. Annal. 2 and 3. favour of themselves. The application of it, weshall 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 |