Montesquieu

The Romans did not have, like the Greeks, spe­ci­fic magis­tra­tes with over­sight of the conduct of women. Censors super­vi­sed them only as they did the rest of the repu­blic. The ins­ti­tu­tion of the domes­tic court1 took the place of the magis­tracy esta­bli­shed for the Greeks.2

The hus­band assem­bled his wife’s family and jud­ged her in their pre­sence.3 This court main­tai­ned mora­lity in the repu­blic. But that same mora­lity main­tai­ned the court. It was to judge not only vio­la­tion of the laws, but also the vio­la­tion of mora­lity. Now for mora­lity to be jud­ged, it must exist.

The punish­ments of this court were bound to be arbi­trary, as indeed they were ; for not eve­ry­thing that invol­ves mora­lity, not eve­ry­thing that invol­ves the rules of modesty, can be inclu­ded under a code of laws. It is easy to spe­cify by laws what a per­son owes to others ; it is dif­fi­cult to include in them all that one owes to one­self.

The domes­tic court dealt with the ove­rall conduct of women ; but there was one crime which, in addi­tion to cor­rec­tion by this court, was fur­ther sub­ject to public accu­sa­tion : that was adul­tery, either because in a repu­blic such a huge vio­la­tion of mora­lity impli­ca­ted the govern­ment, or because the wife’s depra­vity could cast sus­pi­cion on the hus­band’s, or finally because they fea­red that even law-abi­ding men might pre­fer to hide this crime rather than punish it, ignore it rather than avenge it.

Romulus instituted this tribunal, as we see in Dionysius of Halicarnassus, book II, p. 96.

See in Livy, book XXXIX, the use made of this court at the time of the conspiracy of the Bacchanalis : they called “conspiracy against the republic” assemblies where the morals of the women and youth were corrupted.

It appears in Dionysius of Halicarnassus, book II, that by the institution of Romulus, the husband in ordinary cases alone judged, in the presence of the wife’s family, and that in great crimes he judged her along with five of them. Note too that Ulpian (in tit. 6, §9, 12, and 13) distinguishes, in judgments of morals, those he calls grave from those that were less so, ethos graviores, ethos leviores.