fufpected; or whether, in fine, they were afraid left Book even honeft people might chufe rather to conceal than to punish this crime; and not to know, rather than to avenge it.

In what manner the Inflitutions changed at Rome, together with the Government.

A

S morals were fuppofed by the domestic tribunal, they were alfo fuppofed by the public accufation; and hence it is that thefe two things fell together with the public morals, and ended with the republic +.

The establishing of perpetual questions, that is, of the divifion of jurifdiction among the pretors, and the custom gradually introduced of the pretors judging all affairs themselves *, weakened the use of the domeftic tribunal. This appear by the furprize of historians, who look upon the decifions which Tiberius caufed to be given by this tribunal, as fingular facts and as a renewal of the ancient course of pleading.

The establishment of monarchy and the change of manners put likewife an end to public accufations. It might be apprehended left a dishonest man, affronted at the contempt of a woman, vexed at her refusals, and irritated even by her virtues, fhould form a defign to destroy her. The Julian law ordained that a woman fhould not be accufed of adul

Judicio de moribus (quod antea quidem in antiquis legibus pofitum erat, non autem frequentabatur) penitus abolito, leg. 11. Cod. de repub. Judicia extraordinaria.

*

VII. Chap. 10.

L 4

tery

BOOK tery till after her husband had been charged with Chap. 11, favouring her irregularities; which limited greatly

VII.

& 12.

and annihilated, as it were, this fort of accufation +.

Sixtus Quintus feemed to have been defirous of reviving the public accufation |. But there needs very little reflection to fee, that this law would be more improper in fuch a monarchy as his, than in any other.

CHA P. XII.

Of the Tutelage of Women among the Romans.

HE Roman laws fubjected women to a per

TH

petual tutelage, except they were under the cover and authority of a husband t. Their tuition was given to the nearest of the male relations; and by a vulgar expreffion * it appears they were very much confined. This was proper for a republic, but not at all neceffary in a monarchy §.

That the women among the ancient Germans were likewife under a perpetual tutelage, appears from the different codes of the laws of the Barbarians *S. This cuftom was communicated to the monarchies founded by thofe people; but was not of a long duration,

It was entirely abolished by Conftantine: "It is a fhame, $6 faid he, that fettled marriages fhould be disturbed by the prefumption of ftrangers.

Sixtus Quintus ordained, that if a husband did not come and make his complaints to him of his wife's infidelity, he should be put to death. See Leti.

+ Nifi conveniffent in manum viri.

*Ne fis mihi patruus oro.

The Papian law ordained under Auguftus that women who had bore three children fhould be exempt from this tutelage. *This tutelage was by the Germans called Mundeburdium.

CHA P.

CHAP. XIII.

Of the punishments decreed by Emperors against the Incontinency of Women.

THE

VII. Chap. 13.

HE Julian law ordained a punishment against Book adultery. But fo far was this law, any more than those afterwards made on the fame account, from being a mark of purity of morals, that on the contrary they were a proof of their depravation.

The whole political fyftem in respect to women received a change in the monarchical ftate. The queftion was no longer to oblige them to a purity of morals, but to punish their crimes. That new laws were made to punifh their crimes, was owing to their leaving thofe tranfgreffions unpunished, which were not of fo criminal a nature.

The frightful diffolution of manners obliged indeed the emperors to enact laws in order to put fome ftop to lewdnefs; but it was not their intention to establish a general reformation of manners. Of this the positive facts related by hiftorians are a much stronger proof, than all these laws can be of the contrary. We may fee in Dion the conduct of Auguftus in this refpect, and in what manner he eluded, both in his pretorship and cenforship, the repeated inftances that were made him, for that purpose.

We

Upon their bringing before him a young man who had married a woman with whom he had before carried on an illicit commerce, he hesitated a long while, not daring to approve nor to punish thefe things. At length recollecting himself, seditions, fays he, have been the cause of very great evils, let us forget them. Dion book 54. The fenate having defired him to give them fome regulations in refpect to women's morals, he evaded

VII.

Воок We find indeed in hiftorians very rigid fentences, Chap. 13. paffed under Auguftus and Tiberius against the lewdnefs of fome Roman ladies: but by fhewing us the spirit of these reigns, they at the fame time fhew us the spirit of thofe decifions.

The principal design of Auguftus and Tiberius was to punish the diffoluteness of their relations. It was not their immorality they punished, but a particular crime of impiety or high treafon *, of their own invention, which ferved to promote a respect for majesty, and answered their own private revenge.

This was

The penalty of the Julian law was fmall +. The emperors infifted that in paffing sentence the judges. fhould increase the penalty of the law. the subject of the invectives of hiftorians. They did not examine whether the women were deferving of punishment, but whether they had violated the law, in order to punish them.

One of the moft tyrannical proceedings of Tiberius §, was the abuse he made of the ancient laws. when he wanted to extend the punishment of a Roman lady beyond that inflicted by the Julian law, he revived the domeftic tribunal ||*.

Thefe

their petition, by telling them that they should chaftise their wives, in the fame manner as he did his; upon which they defired him to tell them how he behaved to his wife. (I think a very indifcreet question).

* Culpam inter viros & fœminas vulgatam gravi nomine læfarum religionum appellando, clementiam majorum fuafque ipfe leges egrediebatur, Tacit. Annal. lib. 3.

This law is given in the Digeft; but without mentioning the penalty. It is fuppofed it was only relegatio, or banishment, because that of inceft was only deportatio, or tranfportation. Leg. fi quis viduam ff. de quæft,

Proprium id Tiberio fuit fcelera nuper reperta prifcis verbis obtegere. Tacit.

Adulterii graviorem poenam deprecatus, ut exemplo majorum propinquis fuis ultra ducentchin.um lapidem removeretur,

fuafit.

VII.

These regulations in respect to women concerned Book only fenatorial families, but not the common peo-Chap. 18, ple. Pretences were wanted to accufe the great, & 14. which were conftantly furnished by the diffolute conduct of the ladies.

In fine, what I have above observed, namely that purity of morals is not the principle of fingle government, was never better verified than under those first emperors; and whofoever doubts of it need only read Tacitus, Suetonius, Juvenal, and Martial.

CHA P. XIV.

Sumptuary Laws among the Romans.

WE

E have spoken of public incontinency, because it always accompanies, always follows, and is followed always by luxury. If we leave the motions of the heart at liberty, how fhall we be able to restrain the weakneffes of the mind?

At Rome, befides the general inftitutions, the cenfors prevailed on the magiftrates to enact several particular laws to preferve the frugality of women. This was the defign of the Fannian, Licinian, and Oppian laws. We may fee in Livy (*) the great (*) Decad. ferment the fenate was in, when the women infisted IV. lib. 4. upon the revocation of the Oppian law. The abrogation of this law is fixed upon by Valerius Maximus as the epoch of Roman luxury.

fuafit. Adultero Manlio Italiâ atque Africâ interdi&tum eft. Tacit. Annal. lib, 2.

CHAP.