Montesquieu

Romulus allo­wed the hus­band to repu­diate his wife if she had com­mit­ted an adul­tery, pre­pa­red poi­son, or coun­ter­fei­ted the keys. He did not give wives the right to repu­diate their hus­bands. Plutarch calls this a very harsh law.1

As the law of Athens gave the option of repu­dia­tion to the wife as well as the hus­band,2 and as we see that women obtai­ned this right among the early Romans des­pite the law of Romulus, it is clear that this ins­ti­tu­tion was one of those which the depu­ties of Rome brought back from Athens, and that it was inclu­ded in the law of the Twelve Tables.

Cicero says that the cau­ses for repu­dia­tion came from the law of the Twelve Tables.3 We thus can­not doubt that this law had increa­sed the num­ber of cau­ses for repu­dia­tion esta­bli­shed by Romulus.

The pos­si­bi­lity of divorce was again a pro­vi­sion, or at least a conse­quence, of the law of the Twelve Tables. For from the moment the wife or the hus­band had sepa­ra­tely the right of repu­dia­tion, they could a for­tiori agree to sepa­rate by mutual consent.

The law did not require peo­ple to give cau­ses for divor­ces.4 For by the nature of the thing, there must be cau­ses for repu­dia­tion, and none is requi­red for divorce because whe­re­ver the law esta­bli­shes cau­ses that can break up a mar­riage, mutual incom­pa­ti­bi­lity is the stron­gest of all.

It is repor­ted by Dionysius of Halicarnassus,5 Valerius Maximus,6 and Aulus Gellius,7 that even though the option of repu­dia­ting one’s wife was avai­la­ble in Rome, there was such res­pect for the aus­pi­ces that no one for five hun­dred twenty years8 avai­led him­self of this right until Carvilius Ruga repu­dia­ted his wife for cause of bar­ren­ness. I do not find this convin­cing. You only have to know the nature of the human mind to appre­ciate what a mar­vel it would be if, when the law gran­ted such a right to a whole peo­ple, no one avai­led him­self of it. Coriolanus, depar­ting in exile, advi­sed his wife to marry a hap­pier man than he.9 We have just seen that the law of the Twelve Tables and the Roman ethos greatly exten­ded the law of Romulus. Why these exten­sions, if no use had ever been made of the option to repu­diate ? Further, if the citi­zens never repu­dia­ted because they had such res­pect for the aus­pi­ces, why did the legis­la­tors of Rome have less ? How did the law cons­tantly cor­rupt the ethos ?

By com­pa­ring two pas­sa­ges in Plutarch we shall see the won­der of this mat­ter disap­pear. The royal law allo­wed repu­dia­tion by the hus­band in the three cases we have men­tio­ned.10 “And in other cases,” says Plutarch, “it held that he who repu­dia­ted be requi­red to give half of his pos­ses­sions to his wife, with the other half being devo­ted to Ceres.”11 Thus repu­dia­tion was pos­si­ble in every case by sub­mit­ting to the penalty. No one did that until Carvilius Ruga,12 who, as Plutarch fur­ther says, “repu­dia­ted his wife for cause of bar­re­ness, two hun­dred thirty years after Romulus.”13 In other words, he repu­dia­ted her seventy-one years before the law of the Twelve Tables, which exten­ded the power to repu­diate and the cau­ses for repu­dia­tion.

The authors I have cited say that Carvilius Ruga loved his wife, but that the cen­sors because of her bar­ren­ness made him swear he would repu­diate her so he could give chil­dren to the repu­blic, and this made him repul­sive to the peo­ple. You have to know the genius of the Roman peo­ple to dis­co­ver the true cause of the wrath they concei­ved for Carvilius. It is not for repu­dia­ting his wife that Carvilius fell from favor with the peo­ple ; that was some­thing that did not concern the peo­ple. But Carvilius had sworn to the cen­sors that, given his wife’s bar­ren­ness, he would repu­diate her so as to give chil­dren to the repu­blic. That was a yoke which, as the peo­ple could see, the cen­sors were going to put on them. I shall make clear later in this work14 the aver­sion they always had for such requi­re­ments. Laws must be explai­ned by laws, and his­tory by his­tory.

Life of Romulus.

It was a law of Solon’s.

Mimam res suas sibi habere jussit, ex duodecim Tabulis causam addidit (Philippicæ II).

Justinian changes that (Novellæ 117, ch. x).

Book II.

Book II, ch. iv.

Book IV, ch. iii.

According to Dionysius of Halicarnasssus and Valerius Maximus, and 523 according to Aulus Gellius. But they do not indicate the same consuls.

See the speech of Veturia in Dionysius of Halicarnassus, book VIII.

Plutarch, Life of Romulus.

Ibid.

Indeed the cause of barrenness is not indicated in the law of Romulus ; it seems he was not subject to confiscation, since he was following the order of the censors.

In the comparison of Theseus and Romulus.

In Book XXIII, chapter xxi.