Page:Bury J B The Cambridge Medieval History Vol 2 1913.djvu/103

Rh was to be given to the monastery and two-thirds to their children: if there were no children, two-thirds to the monastery and one-third to their parents; if they had no ascendants alive, all to the monastery. If however husband and wife agreed to come together again, the penalties were not enforced: if one only was willing, he or she was freed.

Justinian's son, Justin, in 566 yielded to persistent complaints and restored the old law permitting divorce by mutual consent.

Divorce at the instance of one party only, called repudium, in old times was subject to no restraint, but in Augustus' time required seven witnesses to the declaration, which was made orally or in writing and delivered to the other party by declarant's freedman. Under the Emperors a dissolution of marriage without good ground was visited with penalties. Good ground was either incapacity on the part of the husband for a period of three years from marriage, or desire to lead a life of chastity, or captivity, combined with the other's ignorance for five years of the captive's being alive. In these cases, called by Justinian divortium bona gratia, the dowry is given back to the wife and the marriage gift to the husband, but no penalty is incurred. On the other hand for grave crime or offence either party may repudiate the other and gain both dowry and marriage gift. The offences as specified by Valentinian (449) were in the main the same in both cases, adultery, murder, enchantments, treason, sacrilege, grave-robbery, kidnapping, forgery, attacks on the other's life, or blows: also in the case of the man, cattle-lifting, brigandage or brigand-harbouring, associating with immodest women in presence of his wife: in the case of the woman, revelling with other men not belonging to her, without her husband's knowledge or consent, or against his will going to theatres or amphitheatres or horse races, or without good cause absenting herself from his bed. Justinian (535) added to the wife's offences wilful abortion, bathing with other men, and arranging a future marriage while still married.

By a later law (542) Justinian reduced the number of offences which would justify repudiation to six on the part of the wife, viz., conspiracy against the Empire or concealing such from her husband, proved adultery, attempt on the husband's life, banqueting or bathing with strange men without his consent, staying out of her own house except at her parents' house or with her husband's consent, visiting circus shows or theatres or amphitheatres without his knowledge and approval. On the part of the husband five offences only are to count: conspiracy against the Empire, attempt on his wife's life or neglect to avenge her, conniving at others' attempts on her chastity, charging her with adultery and failing to prove it, associating with other women in the house where his wife dwells or frequently consorting with another woman in the same town and persisting after several admonitions by his wife's parents or others. The regular penalty for the guilty person in such a case and