The ancient Greeks appear to have entertained a similar opinion, although they did not ground any legislative enactments upon it; thus Plato commends Esculapius for refusing to patch up persons habitually complaining, lest they should beget children as useless as themselves; being persuaded that it was an injury both to the community and to the infirm person himself, that he should continue in the world, even though he were richer than Midas. De Republ. Lib. III. Upon the same principle Herodicus is censured by Plato as the inventor of an art of teaching the infirm to regulate their exercise and diet in such a manner as to prolong their lives for many years.
[255]. Police Medicale, p. 91. the author goes on to state, that by an ordinance of the king of Denmark, if the husband or wife have before marriage any secret malady, as leprosy, epilepsy, or other contagious disorder calculated to inspire horror, and does not inform the other of it, the party uninformed may have a divorce p. 92.
[256]. It must not be on the mere confession of parties, 2 Burn. 461. but see Greenstreet and Greenstreet Phillimore’s Rep. Divorce by reason of impotence, 4 Bacon. Ab. 534, and cases there, and note, p. 555.
Authorities,—Panormus; Targereau, Paris, 1611; Sylva Nuptialis; Ambrose Parè, sixth edit.; Sanchez de Matrimonio; Journal des Sçavans, July, 1677; Johannes Saresberiensis in Policratico sive de nugis curialium; Rouliard’s Capitulaire; Antony Hotman’s Treatise. Bayle says that the Divorce propter impotentiam was first allowed by Justinian at the instance of his wife the empress Theodora; her life and character (7 Gibbon’s Roman Empire, p. 64) will best explain the motives of her interference; the Canonists added propter arctitudinem, which the empress had naturally omitted.
[257]. There is some philosophy as well as considerable humour in the arguments of Louvet in his celebrated novel, for it is well known that persons of a sedentary and studious habit are seldom excited and easily diverted.
[258]. Maleficium, Magorum Ars. Maleficus, Incantator. Maleficare, Incantare. 4 Ducange Gloss. 363.
[259]. On the same principle the College of Physicians of Paris would have suppressed the works of Ambrose Parè, the celebrated surgeon to three kings; whom, though a Protestant, Charles the ninth saved in his own chamber, from the massacre of St. Bartholomew. His work de Generatione, was considered too minute in its details, and too explicit in its language, for general inspection.
[260]. The defect must exist at the time of the marriage; if it ensue subsequently, it is no ground of divorce.
[261]. See Derham’s Physico-Theology, vol. 1. p. 260.
[262]. See Traité de Medicine Légale, par F. E. Fodere. tom. I. p. 9.