Chapter XI

Chapter XI

HISTORY OF SEPARATION AND DIVORCE UNDER ENGLISH AND ECCLESIASTICAL LAW

[BIBLIOGRAPHICAL NOTE XI.--For divorce among the Athenians Meier and Schömann's Der attische Process (Berlin, 1883-87) is important. Assistance has also been given by Hruza, Ehebegründung nach att. Rechte (Leipzig, 1892); idem, Polygamie und Pellikat (Leipzig, 1894); and Müller and Bauer, "Die griech. Privat- und Kriegsalterthümer" (1893), in Müller's Handbuch. The Hebrew law on the subject is well treated by Mielziner, The Jewish Law of Marriage and Divorce (Cincinnati, 1884); and especially by Amram, in his excellent Jewish Law of Divorce (Philadelphia, 1896). In his "Divorce on Condition," in the Green Bag, III, August, 1891, the last-named writer has described a curious device for escaping marriage with a brother-in-law and employed also in cases of long absence. Besides the works of Stubbe, Duschak, Döllinger, and Lichtschein, elsewhere noticed, see Selden, Uxor ebraica (Frankfort, 1673), or the same in his Opera, II (London, 1726); Fraenkel, Grundlinien des mosaisch-talmud. Eherechts (Breslau, 1860); Saalschuetz, Das mosaische Recht (2d ed., Berlin, 1853); and Meyer, Die Rechte der Israeliten, Athener, und Römer (Leipzig, 1862-66).

The leading work on Roman divorce is Wächter's Ueber die Ehescheidungen (Stuttgart, 1821). There is also a good account in the seventh and eighth chapters of Hasse's Das Gütterrecht der Ehegatten nach röm. Recht (Berlin, 1824). Savigny has an article on "Die erste Ehescheidung in Rom," in Abhandlungen der könig. Akad. der Wiss. in Berlin, 1814-16 (Berlin, 1818). Very important also is Rein, Das röm. Privatrecht (Leipzig, 1836); and on divorce in connection with the alleged depravation of morals at the close of the republic there is a fine passage in Lecky, European Morals (3d ed., New York, 1881). The subject is treated by Marche, Historia juris civilis de divortiis (Leipzig, 1764); Langeron, Du divorce en droit romain (Paris, 1857); Morael, Droit romain: du divorce (Paris, 1888); and Combier, Du divorce en droit romain (Paris, 1880). Esmein, Mélanges (Paris, 1886), has a chapter dealing in part with Roman divorce; and in the same volume may be found the best existing treatment of adultery in connection with the Lex Julia de adulteriis. With other matter this law is also considered by Gessert, Ad leg. Jul. de adult. coerc. (Würtemberg, 1795); Haupt, De poena adulterii ex leg. Jul. (Leipzig, 1797); Jörs, Die Ehegesetze des Augustus (Marburg, 1894); and Bennecke in his able monograph Die strafrechtliche Lehre vom Ehebruch (Marburg, 1884), bringing the general history of his subject down to the middle of the fifteenth century. In this connection have likewise been of service Sohm's Institutes and the works of Fustel de Coulanges, Hölder, Rossbach, Karlowa, Unger, Maine, Marquardt, and Zhishman elsewhere described. The ground of the chapter is mainly covered by Woolsey, Divorce and Divorce Legislation (2d ed., New York, 1882); and Glasson, Le mariage civil et le divorce (2d ed., Paris, 1880); as also by the general works of Popp, Ehescheidung (Amberg and Sulzbach, 1800); Tissot, Le mariage, la séparation et le divorce (Paris, 1868); Thwing, The Family (Boston, 1887); Gide, La femme (2d ed., Paris, 1885); Scheurl, Das gemeine deutsche Eherecht (Erlangen, 1882); and there is a concise historical account by Friedericus, De divortio meditationes (Leipzig, 1842).

For the origin and early development of the Christian doctrine, besides the Scriptures, the principle sources are, of course, the writings of the Fathers and the provisions of the first ecclesiastical councils. The most important monograph is Geffcken's Zur Geschichte der Ehescheidung vor Gratian (Leipzig, 1894). The subject is treated in Moy, Das Eherecht der Christen (Regensburg, 1833). There is a good account by Loening, Geschichte des deutschen Kirchenrechts (Strassburg, 1878); and another by Meyrick in his article "Marriage," in the second volume of the Dict. of Christ. Antiquities. The rigid theological point of view is taken by Watkins, Holy Matrimony (London, 1895); and Luckock, History of Marriage (London, 1894). Among similar works, mainly controversial, may be consulted Ap Richard, Marriage and Divorce (London, 1888); Caverno, Treatise on Divorce (Madison, 1889); Hovey, The Scriptural Law of Divorce (Philadelphia, 1866); Greve, Die Ehescheidung nach der Lehre des Neuen Testamentes (Leipzig, 1873); and the anonymous Ueber den einzig wahren Ehescheidungsgrund in der christ. Kirche (Bayreuth, 1838). Standard Catholic treatises are Cigoi, Die Unauflösbarkeit der christ. Ehe (Paderborn, 1895); Didon, Indissolubilité et divorce (4th ed., Paris, 1880); or the German translation of the same by Schneider (Regensburg, 1893); Roskovány, De matrimonio in eccle. cath. (Augustae Vindelicorum, 1837); Scheicher-Binder, Praktisches Handbuch des kath. Eherechts (4th ed., Freiburg, 1891); and especially Perrone, De matrimonio christ. (Leodii, 1861). Pompen has a special Tractatus de dispensationibus et de revalidatione mat. (2d ed., Amsterdam, 1897).

On Germanic law and custom see Tacitus's Germania; the Monumenta Germaniae Historica; and the collections of Thorpe, Schmid, and Liebermann. Heussler's Institutionen, Weinhold's Deutsche Frauen, Grimm's Rechtsalterthümer, Brunner's Rechtsgeschichte, and the similar works of Schroeder, Zoepfl, and Walter have all been consulted. The penitentials, containing evidence of compromise between Teutonic usage and the strict dogmas of the church, may be found in Thorpe, Ancient Laws; Haddan and Stubbs, Councils; Wasserschleben, Bussordnungen (Halle, 1851); and Schmitz, Bussbücher (Mayence, 1883). These have largely superseded the older works of Kuntsmann, Die lateinischen Poenitentialbücher der Angelsachsen (Mayence, 1844); and Hildebrand, Untersuchungen über die germ. Poenitentialbücher (Würzburg, 1851). The penitentials are analyzed by Bennecke, Esmein, and Freisen; also by Hinschius, "Das Ehescheidungsrecht nach den angelsäch. und frank. Bussordnungen," in Zeitschrift für deutsches Recht, XX; and Rosenthal, Die Rechtsfolgen des Ehebruchs nach kan. und deutsch. Recht (Würzburg, 1880). In this connection may also be read Heller, Ueber die Strafe des Ehebruchs (Ulm, 1773); Wächter, Abhandlungen aus dem Strafrechte (Leipzig, 1835), I, dealing with Entführung and Nothzucht; Wilda, Strafrecht (Halle, 1842); and Pollen, Fatal Consequences of Adultery (London, 1772), giving literary and other curiosities of the subject. A useful book is Boehmer's Ueber die Ehegesetze im Zeitalter Karls des Grossen (Göttingen, 1826), discussing the inconsistency of temporal and ecclesiastical legislation regarding divorce; as is also Sdralek's Hinkmars Gutachten über die Ehescheidung des Königs Lothar II. (Freiburg, 1881).

Primary sources for the settlement of the canon law on the subject of divorce are the Decretum of Gratian and the other materials comprised in Richter-Friedberg's Corpus juris canonici. For England Johnson's Canons and Godolphin's Repartorium canonicum (3d ed., London, 1687) are serviceable. The state of the law in the age of the decretalists may be learned from Wunderlich's edition of Tancred's Summa de matrimonio (Göttingen, 1841); and for its historical development the great works of Esmein and Freisen, elsewhere mentioned, are indispensable. Schulte's Lehrbuch and the Lehrbuch of Friedberg cover the subject. In connection with the rise of the jurisdiction of the church should be read Sohm, "Die geist. Gerichtsbarkeit im frank. Reich," in ZKR., IX (Tübingen, 1870). For the matrimonial experiences of Margaret of Scotland, illustrating the facility of divorce by indirect methods under the canon law, see Tait's article in the Dict. of Nat. Biog., XXXVI; and similar material in the Reports of the Historical Manuscripts Commission. For the literature relating to the Council of Trent consult Bibliographical Note VII.

The foundation of the Protestant doctrine of divorce was laid by Martin Luther. His writings on the subject may, of course, be found in his collected works mentioned in Bibliographical Note IX; or in the source-book of Strampff, Luther: Ueber die Ehe (Berlin, 1857); while the more important papers are reprinted in Vol. II of the Kleinere Schriften Dr. Martin Luthers: von Ehe- und Klostersachen (Bielefeld and Leipzig, 1877). An earlier book of a somewhat similar character is Froböse's Dr. Martin Luther's ernste, kräftige Worte über Ehe und eheliche Verhältnisse (Hanover, 1825). In the sixteenth century Luther's relatively conservative teaching regarding the scriptural grounds of divorce is adopted in the main by the theologians Brenz, Wie yn Ehesachen ... zu Handeln (1530); Bugenhagen, Von Ehebruch und Weglaufen (1539); also in the collections of Sarcerius, below mentioned; Chemnitz, Examen concilii tridentini (Frankfort, 1615); Beza, Tractatio de repudiis et divortiis (Geneva, 1569); the jurists Kling, Matrimonialium causarum tractatus (1st ed., Frankfort, 1553; 3d ed., here cited, 1577), being a reprint of the title "De nuptiis" of his Enarrationes in Institutiones (1542); Beust, Tractatus de jure connubiorum (3d ed., Leipzig, 1592); idem, Tractatus de sponsalibus et matrimoniis (Wittenberg, 1586); Schneidewin, Commentarius in Institutiones (1st ed., Wittenberg, 1571); and idem, De nuptiis (Jena, 1585), being a part of the earlier work published by the heirs after the author's death. In the seventeenth century the more stringent tendency is represented by the theologians Bidembach, De causis matrimonialibus tractatus (Frankfort, 1608); Mentzer, De conjugio tractatus (Wittenberg, 1612); and by the jurists Cypräus, De connubiorum jure (Frankfort, 1605); Nicolai, Tractatus de repudiis et divortiis (Dresden, 1685); and Brouwer, De jure connubiorum (Amsterdam, 1665), whose book has the distinction of being placed on the Index. On the other hand, in the age of Luther a more liberal direction is taken by Erasmus, Annat. in Nov. Testam. (Basel, 1515); whose influence, according to Richter, is felt by Zwingli, "Ordnung wie zu Zürich ... über eelich sachen gericht soll werden" (1525): in Richter, Kirchordnungen, I, 21, 22; and his "Commentary on Matthew xix, 9," in Richter, Beiträge, 7; and by Zwingli's disciple Bullinger, Der christlich Ehestand (1579). The laxer tendency is also represented by Lambert of Avignon, De sacro conjugio (Strasburg, 1524); Melanchthon, "De conjugio" (1551), in Opera, I (Erlangen, 1828); Bucer, whose work is mentioned in connection with the English Reformation; the jurist Monner, Tract. de matrimonio et clandestinis conjugiis (Jena, 1561); and in the seventeenth century especially by Hülsemann, Extensio breviarii theologici (3d ed., Leipzig, 1655); and the jurist Forster, De nuptiis (Wittenberg, 1617). The more essential parts of the works of Luther, Brenz, Bugenhagen, Bullinger, and Melanchthon may also be found in that remarkable treasury of materials gathered by Sarcerius, Ein Buch vom heiligen Ehestande (1553); enlarged under title Corpus juris matrimonialis (Frankfort, 1569).

Heading the modern literature is Richter's able Beiträge zur Geschichte des Ehescheidungsrechts in der evang. Kirche (Berlin, 1858), which has the special merit of first classifying the post-Reformation writers on divorce according to their more rigid or more liberal tendencies. The subject is also treated with the usual precision and thoroughness in his Lehrbuch des kath. und evang. Kirchenrechts (8th ed., Leipzig, 1886). Important likewise are Strippelmann, Das Ehescheidungsrecht (Cassel, 1854); Goeschen, "Ehe," in Herzog's Encyclopaedie, III, 666-707 (Stuttgart and Hamburg, 1855); Hauber, "Ehescheidung im Reformations-Jahrhundert," in Jahrbücher für deutsche Theologie (1857), II; Hubrich, Das Recht der Ehescheidung (Berlin, 1891); Buchka, Das mecklenburgische Ehescheidungsrecht (Wismar, 1885); Gräbner, Ueber Desertion und Quasidesertion (Colberg, 1882); and Friedberg, "Beiträge zur Geschichte des brand.-preuss. Eherechts," in ZKR., VIII (Tübingen, 1886-87). Weydmann, Luther (Hamburg and Gotha, 1850), has two chapters on Luther's views and his matrimonial life. The second and third parts of Vol. III of Schulte's Geschichte der Quellen und Litteratur des can. Rechts (Stuttgart, 1880) provide a mass of valuable biographical and bibliographical material for the whole post-Reformation period.

Richter's well-edited and now exceedingly scarce Kirchenordnungen des sechszehnten Jahrhunderts (Weimar, 1846) contains the legislation of the Evangelical churches on marriage and divorce. Especially important for the seventeenth century is the very rare Des Herzogthums Wirtemberg ernuerte Ehe- und Ehe-Gerichts-Ordnung (Stuttgart, 1687), marking the beginning of a more liberal treatment of the divorce problem. The ecclesiastical ordinances are analyzed by Goeschen, Doctrina de matrimonio (Halle, 1848); and by Dietrich, Evangelisches Ehescheidungsrecht (Erlangen, 1892). Original divorce decrees and opinions are collected in Bruckner's Decisiones juris matrimonialis, II (Gotha, 1724); and several cases are published by Schleusner, "Anfänge des protest. Eherechts," in ZKG., XIII (Gotha, 1892). The best monographs on the evolution of jurisdiction and process in such causes, aside from the work of Dietrich just mentioned, are Geffcken, "Zur ältesten Geschichte und ehegericht. Praxis des Leipzig. Konsist.," in ZKR., 3. Folge, IV (Freiburg and Leipzig, 1894); Hinschius, "Beiträge zur Geschichte des Desertionsprocesses," ibid., II (Berlin, 1862); and especially Stölzel, Ueber das landesherrliche Ehescheidungsrecht (Berlin, 1891), the first part of which having already appeared in ZKR., XVIII (Freiburg and Tübingen, 1883). Stölzel holds that the authority of the chief magistrate to grant divorce is originally a right of episcopal dispensation, and that his authority is not superseded by the imperial law of 1875. On the controversy growing out of this dual question see Meurer, Das landesherrliche Ehescheidungsrecht (Freiburg, 1891); and compare Scheurl, "Die Ablösung des Eherechts von dem Kirchenrecht," in ZKR., XIII (Tübingen, 1876); Buchka, "Das Eheschliessungsrecht," ibid., XVI; Sicherer, Personnenstand und Eheschliessung (Erlangen, 1879); the two dissertations of Wasserschleben, each entitled Das Ehescheidungsrecht kraft landesh. Machtvollkommenheit (Giessen, 1877; Berlin, 1880); and Hinschius, Das Reichsgesetz (3d ed., 1890). On the rise of the early consistorial courts see especially Mejer, "Anfänge des Wittenberger Consistoriums," in ZKR., XIII (Tübingen, 1876); idem, "Zur Geschichte des ältesten protest. Eherechts," ibid., XVI (Tübingen, 1881); both articles being reprinted with other matter in his Zum Kirchenrecht des Reformationsjahrhunderts (Hanover, 1891).

Since the Reformation the questions of the proper grounds of divorce and of the remarriage of divorced persons have given rise to perennial discussion. Among the many writings so produced may be mentioned Gerlach, Kirchenrechtliche Untersuchung (Erlangen, 1839); Savigny, "Darstellung der in den preuss. Gesetzen über die Ehescheidung unternommenen Reform," in Vermischte Schriften, V (Berlin, 1850); Müller, Ueber Ehescheidung und Wiederverehlichung geschiedener Gatten (Berlin, 1855); Hundrich, Ueber Ehen und Scheidungen (Breslau, 1855); Seidler, Beiträge zur Reform der preuss. Gesetzgebung (Nordhausen, 1861); Hoyer, Die Ehescheidungsfrage (Berlin, 1859); Scheurl, Zur praktischen Lösung der Ehescheidungsfrage (Nürnberg, 1861); Harless, Die Ehescheidungsfrage (Stuttgart, 1861); Bräunig, Das Recht der Ehescheidung (Zwickau, 1861); Huschke, Was lehrt Gottes Wort über die Ehescheidung? (Leipzig and Dresden, 1860); idem, Beleuchtung der Einwürfe gegen meine Schrift (Leipzig and Dresden, 1861). Among the many Latin dissertations on the subject are Majer, De separatione cohabitationis (Tübingen, 1675); Eckstein, De divortio ex causa desertionis (Tübingen, 1675); Wagner, De divortio, et convictus conjugalis separatione (Magdeburg, 1723); Memminger, De divortio propter insidias vitae structas (Halle, 1738); Struvvius, De jure divortiorum (Jena, 1735); Seiff, De divortio totali (Giessen, 1740); Mossheim, De divortio (Jena, 1737, 1773); Scopp, Tractatus, de jure divortiorum (Frankfort and Leipzig, 1756); Wunderlich, De separatione a thoro et mensa (Jena, 1774); and especially the Controversiae circa jura divortiorum (2d ed., Halle, 1729), being a reprint of tracts of Kayser, Lange, and Michaelis. For the more recent development of the law in German lands see Schilling, Der Ehescheidungsprocess in den sächsischen Gerichten (Leipzig, 1831); Ehegerichts-Ordnung für den Kanton Basel-Stadtheil (Basel, 1857); Lauenstein, Hannoverisches Eherecht und Process-Verfahren (Hanover, 1869); Peters, Die Ehescheidung (Berlin, 1881); Wasserschleben, Das Ehescheidungsrecht (Berlin, 1887); Hergenhahn, Das Eheschliessungs- und Ehescheidungs-Recht (Hanover, 1890-93); Ney, Das Kirchenrecht (Berlin, 1895); Part II of Lehr, Le mariage, le divorce, et la séparation (Paris, 1899); Erles, Ehescheidungsrecht und Ehescheidungsprozess (2d ed., Berlin, 1900); and Dedekind, Das protest. Ehescheidungsrecht und Verwandtes (Braunschweig, 1872), containing decisions extending over many years with full bibliographical citations.

Of primary importance for the Reformation in England are the writings of Becon, Hooper, Tyndale, and Whitgift, all, with the Original Letters, comprised in the publications of the Parker Society and described in Bibliographical Note IX. The radical doctrines of Bucer's De regno Christi (1557) were supported by Milton, who published an English version under title of "The Judgment of Martin Bucer," in Prose Works, III. Pocock's Records of the Reformation: The Divorce, 1527-1533 (Oxford, 1870), has placed within easy reach a fine collection of original materials relating to Henry VIII.'s famous cause; and Huth, The Marriage of Near Kin (2d ed., London, 1887), has provided a bibliography of the extensive literature to which it has given rise. For the whole period Burnet's History of the Reformation (London, 1850) is of service. The state of public sentiment is reflected in Raynold's Defence of the Judgment of the Reformed Churches (1609, 1610); the opposing work of Bunny, Of Divorce for Adultery, And Marrying againe: that there is no sufficient warrant so to do (Oxford, 1610; prepared for publication in 1595); and the curious Lawes Resolutions of Womens Rights (London, 1632). The corruption and injustice often attending the proceedings of the old spiritual courts in actions for annulment of wedlock are revealed in Archbishop Abbot's The Case of Impotency As Debated in England, In that Remarkable Tryal An. 1613, between Robert, Earl of Essex, and the Lady Frances Howard (London, 1715), in which King James I. appears in the rôle of pander to the lust of his guilty favorite. The publication of this book, a century after it was written, appears to have been suggested by the similar Pleadings for the Marquis de Gesvres against the Marchioness (London, 1714). In this connection may also be mentioned as illustrative material the Cases of Divorce for Several Causes (London, 1715); and the Crim. Con. Actions and Trials and other Legal Proceedings relating to Marriage before the passing of the present Divorce Act (London, n. d.). With these may be compared the modern case Ehescheidungs-Process Colin-Campbell (London, 1886). For the Stuart period have also been used Barrington, Observations Upon the Statutes (2d ed., London, 1766); Hale, History of the Pleas of the Crown (London, 1800); Coke, Reports (London, 1826); his Institutes; and the Reports of Croke, Kelyng, and Marche.

Milton's "Doctrine and Discipline of Divorce," "Tetrachordon," and "Colasterion" may be found in Vols. III and IV of his Prose Works (London, 1889-90). The only special work on parliamentary divorce is that contained in Macqueen's Practical Treatise on the Appellate Jurisdiction of the House of Lords and Privy Council (London, 1842). There are a number of papers relating to the early cases in the Reports of the Historical Manuscripts Commission. Morgan, Marriage, Adultery, and Divorce (Oxford, 1826), has a long account; and the Lord Roos suit gave rise to The Case of Divorce and Re-Marriage (London, 1673). The proceedings in the Northampton case may be found in Howell's State Trials, XII.

The Statutes at Large and Hansard's Parliamentary Debates are, of course, in frequent requisition. For the reform of the laws relating to affinity and divorce important sources are the "First Report of the Commissioners" (affinity), in Brit. Documents, 1847-8, XXVIII (London, 1848); "First Report of the Commissioners" (divorce), ibid., 1852-3, XL (London, 1853); "Evidence before the Select Committee of the House of Lords, 1844" (divorce), reprinted ibid.; A Return giving an Outline of Marriage Laws, and the State of the Law of Divorce, in three parts (London, 1894); Return of the Number of Divorces, Part I, "Foreign Countries;" Part II, "Brit. Colonies"(London, 1895-96); and the Report of the Upper House of the Convocation of Canterbury, 1885 (divorce).

The development of a liberal sentiment in contemporary literature may be traced in A Treatise Concerning Adultery and Divorce (London, 1700); Two Cases: The First of Adultery and Divorce (London, 1702); the anonymous Essay upon Divorcement (London, 1715), replying to Milton; Salmon, A Critical Essay Concerning Marriage (London, 1824), accepting Milton's views; Cri d'une honnête femme qui réclame le divorce (London, 1770); Observations on the Marriage Laws particularly in reference to the Case of Desertion (London, 1815); and Plea for an Alteration of the Divorce Laws (London, 1831). With these writers may be compared Ireland, Nuptiae sacrae (London, 1801, 1821, 1830), opposing Bishop Horsley's argument that in case of divorce the Scriptures directly prohibit the marriage of the adulterer with the adulteress; Tebbs, Essay on the Scripture Doctrines of Adultery and Divorce (London, 1822), too harshly accused of plagiarism by the author of the preceding book; Keble, Sequel of the Argument against immediately repealing the Laws which treat the Nuptial Bond as indissoluble (Oxford, 1857), opposing the proposed divorce law; and Browne, The Marriage of Divorced Persons in Church (London and New York, 1896), taking a reactionary position.

Important for the chapter are Glasson, Histoire du droit et des institutions ... de l'Angleterre (Paris, 1882-83); Cleveland, Woman under the English Law (London, 1896); Barclay, La femme anglaise (Paris, 1896); Lehr, Le mariage, le divorce, et la séparation (Paris, 1899); Lecky, Democracy and Liberty (New York, 1896); Neubauer, "Ehescheidung im Auslande," in ZVR., VII (Stuttgart, 1887); Swinderen, "Ueber das Gütterrecht der Ehefrau in England," ibid., V (Stuttgart, 1884); Hirschfeld, "The Law of Divorce in England and in Germany," in Law Quarterly Review, XIII, October (London, 1897); Montmorency, "The Changing Status of a Married Woman," ibid., April (London, 1897); and the able article "Divorce," in Law Review (English), I (London, 1845). The absurd conflicts of English and Scottish law, as illustrated especially by Lolley's case, are discussed in Brougham's "Discourse on the Law of Marriage, Divorce, and Legitimacy" (1835) and his "Speech on the Scotch Marriage and Divorce Bills" (1835), both in Speeches, III (London, 1838); Fraser, Conflict of the Laws in Case of Divorce (Edinburgh, 1860); and Fergusson, Reports of Some Decisions (Edinburgh, 1817); while the proceedings in divorce under the old law are treated by Poynter, Doctrine and Practice of the Ecclesiastical Courts in Doctors Commons (London, 1822). Besides the technical treatises of Bishop, Geary, Ernst, and Hammick may be consulted Spence, Equitable Jurisdiction (Philadelphia, 1846); Baker, Husband and Wife and the Married Women's Property Act, 1882 (London, 1882); Barrett-Leonard, The Position in Law of Woman (London, 1883); Shelford, Marriage and Divorce (London, 1841); Browne, Divorce and Alimony (Philadelphia, 1890); Browning, Practice and Procedure of the Court for Divorce (London, 1862); idem, Exposition of the Laws of Marriage and Divorce (London, 1872); and Harrison, Probate and Divorce (4th ed., London, 1891). Among the works elsewhere described from which aid has been derived are those of Bracton, Blackstone, Reeves, Burn, Jeaffreson, Lingard, Wharton, Pollock and Maitland, and Haggard, Reports of Cases in the Consistory Court of London (London, 1822).

For the literature relating to marriage with a deceased wife's sister and other kindred see a footnote below and the elaborate bibliography by Huth in the work already mentioned.]

I. THE EARLY CHRISTIAN DOCTRINE AND THE THEORY OF THE CANON LAW

a) Historical elements of the Christian teaching.--According to the spirit of the earliest Christian teaching divorce, properly so called, is strongly condemned, though by a strict interpretation of its letter it may not be entirely forbidden. Between the first assertion of the new doctrine and the final triumph of the canonical theory of absolute indissolubility of the marriage bond intervenes a struggle of twelve hundred years, whose more salient features may now be sketched in rapid outline.

To understand the influences which aided in molding the conceptions of the founders of the Christian church relative to marriage and divorce, one must first of all notice the legal and social environment. By each of the three systems of law with which originally the Christians were most acquainted marriage was treated as a private or lay contract, and its dissolution was therefore freely allowed. Among the early Greeks, at any rate in the Homeric age, divorce is thought, on slender evidence, to have been entirely unknown,[1] although the practice arose later. By the Athenian law, which probably was not entirely supplanted by the Roman until 212 A.D.,[2] it was freely granted to either spouse. The benefit inured, however, mainly to the husband, since to begin proceedings for a divorce the wife was required to present in person to the archon a written statement of her desire; and this, in a society where popular sentiment relegated woman to a seclusion truly oriental, it was in practice exceedingly hard to do.[3]

[Footnote 1: HOMER, Odyssey, x, 58; xxii, 38. Cf. MEIER-SCHÖMANN, Der attische Process, II, 510; GEFFCKEN, Ehescheidung vor Gratian, 12; GLASSON, Le mariage civil et le divorce, 151; HRUZA, Polygamie und Pellikat, 64 n. 7.]

[Footnote 2: GEFFCKEN, op. cit., 15.]

[Footnote 3: Thus Alcibiades "collected a band of men and dragged" his wife Hipparete from the archon, when she attempted to get a divorce on account of his licentiousness: WOOLSEY, Divorce and Divorce Legislation, 31. Cf. GEFFCKEN, op. cit., 12, 13; and in general on the Grecian law of divorce see MEIER-SCHÖMANN, Der attische Process, II, 510-13; MÜLLER, Handbuch der Alterthumswissenschaft; MÜLLER AND BAUER'S Die griech. Privat- und Kriegsalterthümer (1893), 152; POPP, Ehescheidung, 12-18; TISSOT, Le mariage, 53 ff.; GLASSON, Mariage civil et le divorce, 151-53; WOOLSEY, op. cit., 25-34. The unfavorable position of the Athenian woman is discussed by HRUZA, Die Ehebegründung nach attischem Rechte, 21, 22; GIDE, La femme, 63 ff., 74 ff.; COMBIER, Du divorce, 17 ff.; TEBBS, Essay, 44 ff.]

By the Jewish law, as it still existed at the dawn of the present era, divorce was the one-sided privilege of the man.[4] At most there was only a faint trace of the woman's later right, sanctioned by the Talmud, of demanding a separation.[5] Legally, for the slightest reason, as the school of Hillel justly maintained, the husband could put away the wife by simply handing her a "get" or bill of divorce.[6] By the written law only in two cases, for grave misconduct, was he deprived of this power;[7] though in practice there were several ameliorating conditions which tended to put a check upon arbitrary action. Thus, while divorce was a private transaction, certain formalities had to be observed in connection with the "get" which secured the restraining influence of publicity;[8] and in case the wife was unjustly repudiated the dower, representing the ancient mohar, or purchase price of the bride, had to be paid to her from the husband's property.[9] Moreover, some of the limitations of the husband's despotic power recognized by the Mishnah or oral law may already have been in force; and the highest ethical sentiment among the Jews had long been decidedly against too great freedom of divorce. It was the rabbi's duty as much as possible to discourage it and to effect reconciliations between husband and wife.[10]

[Footnote 4: On Jewish divorce in general see STUBBE, Die Ehe im alten Testament, 31, 32; FRAENKEL, Grundlinien des mosaisch-talmud. Eherechts, 42 ff.; MEYER, Die Rechte der Israeliten, Athener und Römer, II, 370 ff.; DUSCHAK, Das mosaisch-talmud. Eherecht, 83 ff.; MICHAELIS, Ehegesetzen Mosis, 358, 359; LICHTSCHEIN, Die Ehe nach mosaisch-talmud. Auffassung, 85 ff.; MIELZINER, The Jewish Law of Divorce, 115 ff.; STRIPPELMANN, Ehescheidungsrecht, 8 ff.; TISSOT, Le mariage, 44 ff.; POPP, Ehescheidung, 37 ff.; GLASSON, Le mariage civil et le divorce, 145-50; TEBBS, Essay, 8 ff.; GIDE, La femme, 56 ff.; COMBIER, Du divorce, 20 ff.; WOOLSEY, Divorce and Divorce Legislation, 10-34; THWING, The Family, 40-44; GEFFCKEN, Ehescheidung vor Gratian, 14, 16; and especially the admirable book of AMRAM, The Jewish Law of Divorce, 22 ff. Among controversial works see LUCKOCK, History of Marriage, 16 ff.; AP RICHARD, Marriage and Divorce, 54 ff., 62-72; BROWNE, Marriage of Divorced Persons in Church, 5 ff.]

[Footnote 5: Exod. 21:7-11; as interpreted by AMRAM, _The Jewish Law of Divorce_, 55 ff.; MILTON'S Prose Works, III, 185 ff., 322 ff.]

[Footnote 6: "When a man hath taken a wife, and married her, and it come to pass that she find no favour in his eyes, because he hath found some uncleanness in her; then let him write her a bill of divorcement, and give it in her hand, and send her out of his house. And when she is departed out of his house, she may go and be another man's wife."--Deut. 24:1, 2. The Hebrew Ervath Dabar, here translated "uncleanness," literally "the nakedness of the matter," or "something unseemly," are the doubtful words. The school of Hillel, or the "broad constructionists of the Bible," held "that the husband need not assign any reason whatever for his divorce, and that he may, for instance, if he please, divorce his wife for spoiling his food." On the other hand, the school of Shammai, or the "strict constructionists," held that sexual immorality was the only scriptural ground of divorce: AMRAM, op. cit., 32 ff. Some writers who accept the view of the school of Shammai for the ancient law admit that, in consequence of moral degeneration, the broad constructionists were right for the days of Christ: see DUSCHAK, op. cit., 83 ff.; LICHTSCHEIN, op. cit., 86; MIELZINER, op. cit., 118-20. Cf. GEFFCKEN, op. cit., 74; WOOLSEY, op. cit., 15 ff.; TISSOT, op. cit., 49; TEBBS, op. cit., 28-30.]

[Footnote 7: Deut. 22:13-19, 28, 29: The case of the ravisher and that of the husband who falsely accuses the wife of ante-nuptial incontinence; in the latter instance he is not to "put her away all his days," which might be a trifle hard on the woman, unless indeed custom allowed her the right to free herself. See AMRAM, op. cit., 41 ff. By the Mishnah or oral law other restrictions are gradually imposed: ibid., 45.]

[Footnote 8: Before the compilation of the Mishnah the form of the get "was not yet strictly fixed, it only having been required to contain, besides the date and the names of the parties, the words 'Thou art now free for any man.'" But later custom required a more elaborate form and the "presence of at least ten persons."--MIELZINER, The Jewish Law of Marriage and Divorce, 128. Eventually the procedure in ordering, writing, and delivering the bill of divorce became complex, and it took place before a rabbi specially skilled in the law, who thus had opportunity to check hasty or unjust action through his advice or by refusing to deliver the document: see SAALSCHUETZ, Das mosaische Recht, 801; MIELZINER, op. cit., 116 ff.; DUSCHAK, Das mosaisch-talmud. Eherecht, 95 ff.; especially LICHTSCHEIN, Die Ehe nach mosaisch-talmud. Auffassung, 94 ff.; and AMRAM, op. cit., 132-204, both giving full details as to the "get." For the form of the "get" see MEYRICK, "Marriage," Dict. Christ. Ant., II, 1111; AMRAM, op. cit., 157; LICHTSCHEIN, op. cit., 136; DUSCHAK, op. cit., 143, 144; MIELZINER, op. cit., 129; SELDEN, Uxor ebraica, III, 24: in Opera, IV, 797.]

[Footnote 9: For full details see AMRAM, op. cit., 47, 48, 111-31; MIELZINER, op. cit., 85-89; STUBBE, Die Ehe, 20, 21.]

[Footnote 10: AMRAM, op. cit., 25, 45, 78 ff.; LICHTSCHEIN, op. cit., 87 ff.]

Negatively, however, it was the later law of Rome which had most to do with shaping the ideas of the Christian Fathers relative to the nature of marriage and the doctrine of divorce.[11] By each of the three ancient forms of marriage the wife came or might come under the power of the husband, in manu viri. In the family she was legally regarded as being in a daughter's place, in loco filiae;[12] and in each case divorce was solely the husband's prerogative.[13] But by the beginning of our era all these older and stricter forms, with their consequent one-sided right of separation, had been practically superseded by free contract in which the husband and wife were placed on an equal footing.[14] By this form marriage became a simple private agreement. The wife did not pass under the manu of the husband. She retained full control of her property, being in this regard, as it were, temporarily deposited at her husband's side;[15] while divorce became a formless private transaction to which the woman was as freely entitled as was the man.[16] No intervention of court or magistrate was essential. So far, indeed, was carried the theory of absolute liberty of either spouse to dissolve the contract that, according to Cicero, the jurists in one case were in doubt whether a divorce did not legally arise ipso facto through the consummation of a second marriage by one of the parties during the lifetime of the other.[17] Augustus, however, introduced an important change in the interest of publicity, requiring the party wishing a divorce to declare to the other his purpose in the presence of seven witnesses, who must be Roman citizens of full age; otherwise the divorce to be null and void.[18] But there was no intention through this condition of establishing the jurisdiction of the state in the matter of divorce, which remained, as before, a private legal act of the interested persons. "Still less was it the purpose of the state to put any material restriction upon the freedom of divorce."[19] To this liberty there was but one exception. The freedwoman might not repudiate her patron, her former master, who had taken her in marriage.[20] In all other cases the divorce, however arbitrary or unjust, was legally effective. There was no action for the restitution of conjugal rights; though the responsible party might in certain cases suffer pecuniary damage.[21]

[Footnote 11: In general, on the Roman law of divorce, see ESMEIN, Mélanges, 17 ff.; SOHM, Institutes, 381-84, 341; PUCHTA, Institutionen, II, 403; WÄCHTER, Ehescheidungen bei den Römern, 19 ff., 62 ff.; GLASSON, Le mariage civil et le divorce, 173 ff.; REIN, Das Privatrecht und der Civilprozess der Römer (Leipzig, 1858), 445 ff., giving a bibliography of the older literature; POPP, Ehescheidung, 18 ff.; TISSOT, Le mariage, 56 ff.; BENNECKE, Ehebruch, 2 ff.; COMBIER, Du divorce, 29 ff.; TEBBS, Essay, 55 ff.; ZHISHMAN, Das Eherecht der orient. Kirche, 4 ff.; WOOLSEY, Divorce and Divorce Legislation, 34-49; GEFFCKEN, Ehescheidung vor Gratian, 9-12; STRIPPELMANN, Ehescheidungsrecht, 31 ff.]

[Footnote 12: By confarreatio and coemptio the man acquired the manus at the nuptials; but by the usus, or the form through which transition was made from the strict to the free marriage, he seems to have gained it only by a year's prescription: when the woman neglected her privilege of trinoctium. In the meantime, before the manus was acquired, it is a question whether the woman was legally uxor or merely uxoris loco: KARLOWA, Die Formen der röm. Ehe, 68 ff.; ROSSBACH, Die röm. Ehe, 156 ff., 243 ff.; SEHLING, Die Unterscheidung der Verlöbnisse im kanon. Recht, 5; SOHM, Institutes, 263; GLASSON, Le mariage civil et le divorce, 161, 174; HÖLDER, Die röm. Ehe, 8 ff.; GEFFCKEN, Ehescheidung vor Gratian, 10 n. 4, who cites other authorities; WÄCHTER, Ehescheidungen bei den Römern, 28 ff.]

[Footnote 13: Whether the confarreatio or sacramental marriage was originally indissoluble even for the man is uncertain; but later it could be dissolved by diffareatio: GEFFCKEN, Ehescheidung vor Gratian, 11; SOHM, Institutes, 381; FUSTEL DE COULANGES, Ancient City, 60; THWING, The Family, 37; GLASSON, Le mariage civil et le divorce, 174, 179; ROSSBACH, Die röm. Ehe, 128 ff.; and ESMEIN, Mélanges, 17 ff., who believes at first confarreatio was indissoluble. The coemptio, or sale-marriage, was dissolved by remancipation, but only in a family council including the wife's relatives; but whether the usus was dissolved in the same way or by prescription we are not informed: GEFFCKEN, op. cit., 11; ROSSBACH, op. cit., 131; WOOLSEY, Divorce and Divorce Legislation, 37, 38; REIN, Privatrecht, 456; KUNTZE, Institutionen (Leipzig, 1869), I, § 776. For the very restricted legal grounds of divorce under the sacramental marriage see UNGER, Die Ehe, 71; and in general compare WÄCHTER, Ehescheidungen, 62 ff., 94 ff.]

[Footnote 14: After the second Carthaginian war free marriage, or matrimonium sine conventione in manum mariti, until that time regarded only as matrimonium juris gentium, was accepted as matrimonium iustum for plebeians as well as patricians; and it rapidly became the only form observed among the Romans, except that confarreatio was preserved for the flamines; while the usus, though not entirely abolished, was deprived of real significance by a senatus consultum under Tiberius which abrogated the effects of manus in the domain of private law: GEFFCKEN, op. cit., 11, 12; ap. TACITUS, Annales, IV, 16; ZHISHMAN, Das Eherecht der orient. Kirche, 5. On free marriage see WÄCHTER, op. cit., 77 ff., 95 ff.; ROSSBACH, op. cit., 42-62, 182 ff., 242; KARLOWA, Die Formen der röm. Ehe, 79 ff.; ESMEIN, Le mariage en droit canonique, II, 46; SOHM, Institutes, 263, 267, 268; UNGER, Die Ehe, 72 ff.]

[Footnote 15: MAINE, Ancient Law, 150.]

[Footnote 16: Freedom of divorce in matrimonium sine manu reacted upon the manus marriages to the extent that the causes of dissolution were increased in number.

"The famous divorce of Sp. Carvilius Ruga [ca. 520 A. U. C.] is not only the first Roman divorce in general, but also the first dissolution of a manus marriage in which no fault but merely a vitium corporis of the woman was assigned" as ground of action.--GEFFCKEN, op. cit., 12. But it is very doubtful whether this is really the first divorce among the Romans: WÄCHTER, op. cit., 82 ff.; COMBIER, Du divorce, 42 ff. The time is uncertain. According to Dionysius, the divorce occurred in 520 A. U. C.; while AULUS GELLIUS, Noctes atticae, IV, 3, § 2, xvii, 21, gives confusingly 519 and 523 as the date. Compare WÄCHTER, op. cit., 78 ff.; SAVIGNY, "Ueber die erste Ehescheidung in Rom," Abhand. d. k. Akad. d. Wis. in Berlin, 1814-16 (Berlin, 1818); REIN, Privatrecht, 450 ff.; KARLOWA, Rechtsgeschichte, 188; GLASSON, Le mariage civil et le divorce, 175; WOOLSEY, Divorce, 39; THWING, The Family, 36; POPP, Ehescheidung, 22; LANGERON, Du divorce, 17.]

[Footnote 17: CICERO, De orat., I, 40, 56: GEFFCKEN, op. cit., 12.]

[Footnote 18: By the Lex Julia de adulteriis of ca. 18 B. C.: GEFFCKEN, op. cit., 15; JÖRS, Die Ehegesetze des Augustus, 36-39. For the best analysis of the Lex Julia, with an account of the preceding history, see ESMEIN, Mélanges, 71-169; and compare BENNECKE, Ehebruch, 2-6.]

[Footnote 19: GEFFCKEN, op. cit., 15.]

[Footnote 20: By the Lex Julia et Papia Poppaea of 9 B. C.; but even this restriction was narrowed in various ways: GEFFCKEN, op. cit., 15; WÄCHTER, op. cit., 143 ff. It should be noted, however, that the husband was compelled to put away a wife guilty of adultery. On this law see JÖRS, Die Ehegesetze des Augustus, 49 ff.; COMBIER, Du divorce, 55.]

[Footnote 21: "Scheidung zufolge friedlicher Übereinkunft (divortium consensu) sowie einseitige Scheidung aus einem rechtmässigen Grunde, ohne dass eine Verschuldung des entlassenen Gatten vorlag (divortium bona gratia), war durchaus erlaubt und hatte für keinen der sich Trennenden nachteilige Konsequenzen, bei willkürlicher Scheidung (repudium iniustum) traf ihren Urheber, bei der durch Schuld des einen Teils, namentlich durch Ehebruch veranlassten Scheidung den Schuldigen Nachteil an Geld und Gut."--GEFFCKEN, op. cit., 15, 16; ap. ULPIAN, VI, 13. See REIN, Das Privatrecht, 433 ff. Forfeiture of property rights for adultery was prescribed by the Lex Julia de adulteriis: ESMEIN, Mélanges, 114; UNGER, Die Ehe, 86; GLASSON, Le mariage civil et le divorce, 178, 179. On the legislation of Augustus compare WOOLSEY, Divorce, 47, 49, 88, 89, 92-94; and JÖRS, Die Ehegesetze des Augustus.]

What were the moral and social results of this excessive freedom of divorce? To many the answer seems easy enough; for during the later republic and the early empire the laxity of the nuptial bond became a notorious scandal. At the capital, and especially in the imperial circle, wives as well as husbands gave free rein to their licentious passions. Marriage became unpopular. A recent historian even declares that "almost always" it was ended by divorce.[22] Already in the age of the Gracchi, Metellus the Macedonian cynically exclaimed: "Romans, if we could get along without wives, assuredly none of us would accept so grievous a burden; but since nature has ordained that one cannot live easily with them, nor live without them, let us sacrifice the happiness of our short life to the perpetuity of our nation."[23] Later even the most distinguished and reputable men, as if in mockery of wedlock, put away their wives on purely selfish or absurdly trivial grounds.[24] To believe the exaggerations of the satirists, one changed his partner almost as often as the cut of his garment.[25] "Seneca denounced this evil with especial vehemence, declaring that divorce in Rome no longer brought with it any shame, and there were women who reckoned their years rather by their husbands than by the consuls."[26] Nevertheless, the abuse was more a result than a cause of the gradual decline of Roman morals during the two centuries following the conquest of Carthage.[27] Doubtless, the state in neglecting to exercise a proper jurisdiction in this field had abrogated a function important for her own stability. Proper restraints would have lessened the evil. But the character of the law was very far from being its sole, or even its primary, cause. "In a purer state of public opinion," well observes Lecky, "a very wide latitude of divorce might probably have been allowed to both parties, without any serious consequences. The right of repudiation which the husband had always possessed was, as we have seen, in the Republic never or very rarely exercised. Of those who scandalised good men by the rapid recurrence of their marriages, probably most, if marriage had been indissoluble, would have refrained from entering into it.... A vast wave of corruption had flowed in upon Rome, and under any system of law it would have penetrated into domestic life. Laws prohibiting all divorce have never secured the purity of married life in ages of great corruption, nor did the latitude which was accorded in imperial Rome prevent the existence of a very large amount of female virtue."[28] Nor, it may be added, does it appear that the family life of the people at large, notably that of the middle classes in the provinces, was seriously tainted by the social corruption of the capital, where all the causes of moral degeneration were especially active.

[Footnote 22: GLASSON, op. cit., 176, 178. Poisoning became a frequent substitute for divorce, especially where marriage by confarreatio had been contracted: ibid., 177; WOOLSEY, op. cit., 42, 43.]

[Footnote 23: AULUS GELLIUS, Noctes atticae, I, 6.]

[Footnote 24: "We find Cicero repudiating his wife Terentia, because he desired a new dowry; Augustus compelling the husband of Livia to repudiate her when she was already pregnant, that he might marry her himself; Cato ceding his wife, with the consent of her father, to his friend Hortensius, and resuming her after his death; Mæcenas continually changing his wife; Sempronius Sophus repudiating his wife, because she had once been to the public games without his knowledge; Paulus Æmilius taking the same step without assigning any reason, and defending himself by saying, 'My shoes are new and well made, but no one knows where they pinch me.'... Christians and Pagans echoed the same complaint. According to Tertullian 'divorce is the fruit of marriage.' Martial speaks of a woman who had already arrived at her tenth husband; Juvenal, of a woman having eight husbands in five years. But the most extraordinary recorded instance of this kind is related by St. Jerome, who assures us that there existed at Rome a wife who was married to her twenty-third husband, she herself being his twenty-first wife."--LECKY, Hist. of European Morals, II, 306, 307, who cites the authorities in the margin. For other illustrations see WOOLSEY, op. cit., 39-49; THWING, The Family, 36 ff.]

[Footnote 25: The evidence of the satirists, jurisconsults, and other writers regarding the abuses of divorce, with full citation, is collected by MARQUARDT, Das Privatleben der Römer, I, 66-80; and GLASSON, op. cit., 175 ff. See, for example, JUVENAL, Sat., XI, 229; VI, 230; PLAUTUS, Mercat., 805; QUINTILIAN, V, 11, 35.]

[Footnote 26: LECKY, Hist. of European Morals, II, 307. Cf. SENECA, De Benef., III, 16; also PLUTARCH, Lives (London, 1890), 526, 531, 532 (Cato of Utica).]

[Footnote 27: On the depravation of Roman society see UNGER, Die Ehe, 80 ff.; COMBIER, Du divorce, 51 ff.; POPP, Ehescheidung, 23 ff.]

[Footnote 28: LECKY, op. cit., II, 307, 308.]

It is, however, not surprising that the founders of the Christian church should have regarded the laxity of the marriage bond as a sign, if not the primary cause, of the degradation of Roman society. From the beginning an earnest effort is made so far as possible to restrict the liberty of separation and to prohibit the persons separated on proper grounds from contracting further marriage. The various passages of the New Testament relating to the subject are disjointed and confusing in their details.[29] Many vital questions are either completely ignored or left in such obscurity as to open the way for wide divergence of doctrine and the bitter controversies of future ages, especially those of the Reformation period. According to the fundamental teaching of Jesus, as reported by Matthew, the husband is forbidden to put away the wife except for unfaithfulness.[30] Divinely created as male and female, "they twain shall be one flesh;" and "what therefore God hath joined together, let not man put asunder."[31] Whether for the same reason the woman may put away the man, or whether either the innocent or the guilty party may contract a second marriage, we are here not expressly informed. Inferences may, of course, be drawn by assuming that Jesus had the principles of the Jewish law in mind; but this mode of procedure is scarcely satisfying.[32] Nor do the other sacred writers throw any clear light on these important questions. Rather do they deepen the obscurity; for both Mark and Luke appear absolutely to prohibit divorce, not expressly admitting even the one ground of separation granted on the authority of Matthew. Moreover, Mark sets up a new stumbling-block. In the presence of the Pharisees, who sought to tempt him, Jesus is made to put aside as morally wrong and born of hardness of heart the harsh freedom of divorce secured to the man alone by the Mosaic code; while "in the house" he tells his disciples that "whosoever shall put away his wife, and marry another, committeth adultery against her," and "if a woman shall put away her husband, and be married to another, she committeth adultery;" so leaving us in doubt whether legal separation without the privilege of a further marriage is sanctioned--in effect thus anticipating the later distinction between divorce quoad thorum and quoad vinculum; or, if such separation be sanctioned, whether, in sharp contrast to the spirit of Jewish law, the wife is placed on a level with the husband in this regard.

[Footnote 29: The principal passages are Matt. 5:31, 32; 19:3-12; Mark 10:2-12; Luke 16:18; 1 Cor. 7:10-16; Rom. 7:2,3.

In general, on the interpretation of these passages, consult GEFFCKEN, Ehescheidung, 16 ff.; ESMEIN, Le mariage en droit canonique, II, 48 ff.; FREISEN, Geschichte des can. Eherechts, 769, 770; FRIEDBERG, Lehrbuch, 337 ff.; LOENING, Geschichte d. deutschen Kirchenrechts, II, 606; PERRONE, De mat. Chr., III, 147-219; ROSKOVÁNY, De mat. in ecc. cath., II, 61-187; MEYRICK, in Dict. Christ. Ant., II, 1110; ZHISHMAN, Das Eherecht der orient. Kirche, 96 ff., 734; GIDE, La femme, 169 ff.; THWING, The Family, 45 ff.; WOOLSEY, Divorce, 50-85; POPP, Ehescheidung, 51 ff.; TEBBS, Essay, 74 ff.; STRIPPELMANN, Ehescheidungsrecht, 11 ff.; especially MILTON, "Doctrine and Discipline of Divorce," Prose Works, III, 180 ff.; idem, "Tetrachordon," ibid., 322 ff.; MENTZER, De conjugio, 190 ff.; SARCERIUS, Vom heil. Ehestande, 161 ff.; and BUCER, in MILTON'S Prose Works, III, 296, passim. Partisan writers are HOVEY, The Scriptural Law of Divorce; CAVERNO, Divorce, 29 ff.; AP RICHARD, Marriage and Divorce, 77-112; LUCKOCK, Hist. of Marriage, 44-79; BROWNE, Marriage of Divorced Persons in Church, 27 ff.]

[Footnote 30: On the use here of the generic term porneia (fornication), instead of the specific moicheia (adultery), see MILTON, "Tetrachordon," Prose Works, III, 394 ff.; also the labored argument of WOOLSEY, Divorce, 60-70; ZHISHMAN, _Das Eherecht der orient. Kirche_, 578 ff.; MEYRICK, in _Dict. Christ. Ant._, II, 1110; GRAY, Husband and Wife, 95, 104 ff.; LUCKOCK, Hist. of Marriage, 56, 57; AP RICHARD, Marriage and Divorce, 80; SELDEN, Uxor ebraica, III, 23, 27.

The scope of porneia is of historical importance; for some of the early Fathers and some of the leaders of the Reformation by giving it an allegorical meaning sought to multiply the scriptural grounds of divorce. Cf. FREISEN, Geschichte des can. Eherechts, 770; also MILTON, in Prose Works, III, 255 ff., 394 ff. In general read the elaborate essay of MORGAN, Marriage, Adultery, and Divorce, II, 394-550, on porneia.]

[Footnote 31: Matt. 19:4-6; cf. 5:31, 32, and Mark 10:6-9. This doctrine is laid down in reply to the Pharisees who "tempting him" ask: "Is it lawful for a man to put away his wife for every cause?"--doubtless having in mind the teaching of the school of Hillel. When Jesus declares that "what therefore God hath joined together, let not man put asunder," they further demand: "Why did Moses then command to give a writing of divorcement, and to put her away?" To which "he saith unto them, Moses because of the hardness of your hearts suffered you to put away your wives; but from the beginning it was not so." Thus, it may be suggested, Jesus admits that legally the followers of Hillel--the "broad constructionists"--are right in their interpretation; while morally he sides with the school of Shammai. See n. 2, p. 13, above. Cf. however, the specious assertions of WOOLSEY, Divorce, 58.]

[Footnote 32: By the Jewish law, of course, the woman had no right to divorce her husband for any cause; the man putting away his wife could take other wives; and the woman divorced for adultery--the only cause of separation contemplated by Jesus--was stoned to death. Cf. GEFFCKEN, Ehescheidung, 17; and WOOLSEY, op. cit., 59 ff., 70 ff., who holds that the words of Jesus apply to the wife equally with the man, and that the innocent, though not the guilty, party may marry again, sustaining his position, as he fancies, by reference to Paul in 1 Cor., chap. 7. For a fair sample of theological special pleading see BROWNE, Marriage of Divorced Persons in Church, 30 ff.]

The utterances of Paul on this subject,[33] as on all questions connected with marriage and the family, are of the highest importance in view of their historical consequences. Referring directly to the teaching of Jesus, he first seemingly denies the right of divorce to either party. With Mark and Luke he omits the exception mentioned by Matthew; and with Mark he expressly forbids the wife to "depart from her husband," adding, however, the inconsequent and bewildering command, "if she depart, let her remain unmarried, or be reconciled to her husband." Here apparently, where both persons are believers, separation a mensa et thoro is approved. Whether in such case this is the only Christian form of divorce allowed either party, however grave the cause of separation;[34] or whether his rule applies to the woman only, and then merely when some lesser ground of action exists, the Apostle to the Gentiles fails entirely to place beyond the field of debate.

[Footnote 33: 1 Cor. 7:8-16.]

[Footnote 34: The Catholic doctrine as finally settled. WOOLSEY, assuming that this is a case of separation of two "believers" for some "dissension" or other cause less than adultery (which he holds allows a second marriage), says, "we have here an actual separation a mensa et toro without a separation a vinculo matrimonii. This third state between absolute divorce and full marriage union has then the sanction of the Apostle--not of course as something desirable, but probably as a kind of barricade against divorce and a defense of the Saviour's commandment. It may be introduced therefore into the law of Christian lands."--Divorce, 73, 74.]

Thus far Paul has spoken professedly on the authority of "the Lord." Next he contemplates the case of an existing union between a Christian and an unbeliever; and on his own judgment he admits a new ground of separation. "But to the rest speak I, not the Lord." The Christian may not put away or abandon his spouse on account of difference in religious faith. "For the unbelieving husband is sanctified by the wife, and the unbelieving wife is sanctified by the husband: else were your children unclean; but now are they holy. But if the unbelieving depart, let him depart. A brother or a sister is not under bondage in such cases."[35] Again, through this last remark, the seeds of dissension are planted; for it is not clear whether the "bondage" from which the brother or sister is freed is that of the existing marriage or the irksome necessity of perpetual single life after separation.

[Footnote 35: 1 Cor. 7:12-16.]

Upon these Bible passages, often vague and puzzling in the extreme,[36] was eventually erected the whole doctrine of the mediæval church relating to divorce. It is not surprising that harmony was reached only after many centuries of struggle. With the exact processes of argument by which ingenious theologians have in all ages sought to reconcile or interpret the scriptural teaching we are here but little concerned. At present we are mainly interested in the general results of thought as they find expression in the law and practice of the church previous to the Reformation. The subject presents four phases or aspects of development, each of which will be briefly considered: the views of the early Fathers; the legislation of the Christian emperors; the compromise with Germanic custom; and the final settlement of doctrine in the canon law.

[Footnote 36: Thus AUGUSTINE (De adult. conjug.) confesses the extreme difficulty of reconciling the scriptural texts relating to divorce and second marriage: "His ita pro meo modulo pertractatis atque discussis quaestionem tamen de conjugiis obscurissimam et implicatissimam esse, non nescio." On this FREISEN (Geschichte des can. Eherechts, 772, 773) remarks, "es wird ihm hierin gewiss jeder zustimmen, der die Worte der hl. Schrift durchliest."]

b) Views of the early Fathers.--During the first four centuries of our era the so-called "strict" construction of the utterances of Jesus and Paul relating to the twofold question of separation and second marriage was formulated by the Fathers of the church; and the principles then agreed upon were in the end, after an intervening period of vacillation and compromise, to be accepted and elaborated into a complete system of law by the canonists. The literature of this early debate may be regarded as reaching from the Pastor of Hermas, a writer in the first half of the second century, highly respected in Christian antiquity,[37] to Augustine, late in the fourth century (died 430), who towers above all the other Fathers in his influence for good or evil in the history of European thought. At first the Pauline interdict of further marriage after separation receives more attention perhaps than the question of divorce itself, with its assigned cause as laid down by Jesus; for it is strongly urged that the chief evil of a too lax divorce system, such as the Roman, is the facility of second marriage regardless of the guilt or innocence of the parties.[38] Setting aside for the present the case of the Christian whose unbelieving spouse voluntarily departs--the casus apostoli or privilegium Paulinum, as it is later styled by the canonists[39]--nearly all are agreed that divorce is forbidden except for the one cause mentioned by Matthew. There is, however, a divergence of view in two important particulars. On the one hand, certain writers, such as Tertullian and pseudo-Ambrose, following the principle of the Jewish law, admit this ground of repudiation to the advantage of the man, but not to that of the woman; while others, like Epiphanius, maintain the equal right of the sexes in this regard. On the other hand, in a few instances the word "adultery"[40] is accepted in an allegorical or spiritual sense, thus greatly widening the field of divorce. In this way, for example, Hermas, Hieronymus, and, for a time, Augustine anticipate the mode of interpretation adopted by some of the Reformation Fathers, admitting idolatry, apostasy, and covetousness, equally with carnal transgression, as proper grounds of separation.[41]

[Footnote 37: GEFFCKEN, Ehescheidung, 18-20. In general on the views of the early Fathers see also FREISEN, Geschichte des can. Eherechts, 770 ff.; ESMEIN, Le mariage en droit canonique, II, 48-55; MEYRICK, in Dict. Christ. Ant., II, 1110; WOOLSEY, Divorce, 86 ff., 107 ff.; POPP, Ehescheidung, 54 ff.; GREVE, Ehescheidung, 190 ff.; Observations on Mar. Laws, 330 ff.; MOY, Eherecht der Christen, 10-45; ZHISHMAN, Das Eherecht der orient. Kirche, 99-102; LUCKOCK, Hist. of Marriage, 80-153; TEBBS, Essay, 125 ff.; MILTON, "Tetrachordon," Prose Works, III, 414 ff.; BURNET, Hist. of the Reformation, I, 26-133, 330 ff., who discusses Henry VIII.'s divorce from Queen Katherine and summarizes the results of Cranmer's examination of the Fathers and early canons in connection with the Northampton case. Burnet's summary is also given by GEARY, Marriage and Family Relations, 577, 578.

For the Roman Catholic view see particularly CIGOI, Unauflösbarkeit der ch. Ehe, 1 ff.; ROSKOVÁNY, De mat. in ecc. cath., II, 1 ff., 187 ff., 198 ff.; PERRONE, De mat. christ., III, 221 ff.]

[Footnote 38: Cf. GEFFCKEN, op. cit., 18.]

[Footnote 39: ESMEIN, op. cit., I, 220 ff.; II, 268 ff.]

[Footnote 40: Or "fornication," the porneia of Matthew.]

[Footnote 41: Cf. the sources cited by FREISEN, Geschichte des can. Eherechts, 770; MEYRICK, in Dict. Christ. Ant., II, 1110. This view is taken by AUGUSTINE, De serm. dom. in monte, c. xvi; but he doubts its correctness in the "Retractions;" MEYRICK, loc. cit. Tertullian shows also that mishandling and insult, as well as adultery, are considered sufficient grounds of separation: GEFFCKEN, Ehescheidung, 20, 21. See however, PERRONE, De mat. christ., III, 231 ff.]

The case is similar with respect to second marriage. Apparently there is a strong tendency from the beginning to treat marriage as indissoluble, but, "intentionally or unintentionally," the utterances of the Fathers on this vital question are unclear. Frequently they content themselves, as Geffcken observes, with a "paraphrase of the scriptural texts relating to the matter."[42] Seemingly, according to the common or prevailing opinion, neither party whether innocent or guilty is allowed to form a new marriage during the lifetime of the other; but there is on this point a great lack of precision.[43] Tertullian, after yielding to Montanism, even goes so far as to reject all second marriage as un-Christian; and the same position is taken by Minutius Felix.[44] There are, however, less rigid constructions. By some Fathers the right of remarriage is conceded to the man repudiating a guilty wife, while they deny it to the woman under like conditions. Others, actuated by a livelier sense of justice, like Epiphanius, concede it to both consorts alike; but these opinions are rejected by the majority.[45] More and more, in theory if not always in practice, the antagonism of the church to the second marriage of a divorced man or woman becomes apparent as we approach the close of the period under consideration. This is proved even by the action of the provincial assemblies. Thus the Spanish Council of Elvira of the year 306 decrees that the woman who puts away a guilty husband and marries another shall be excommunicated; and, save in case of mortal sickness, she shall not be admitted again to communion until after her first husband's death. If, however, she have left her husband without cause and contracted another marriage, she shall not be admitted to communion even on the death-bed; but nothing is said concerning a dissolution of the later marriage.[46] Similar in spirit are the canons of the Council of Arles held in the year 314. The general principle of the indissolubility of the matrimonial relation is positively asserted,[47] but in connection with a concession which illustrates the practical difficulty of consistently enforcing the new doctrine in all parts of the Roman world. The youthful husband[48] who puts away a guilty wife is to be "advised" not to marry again during her lifetime; thus dealing far more gently with the man than did the Council of Elvira with the woman for the same offense.[49]

[Footnote 42: GEFFCKEN, op. cit., 21. Cf. FREISEN, op. cit., 770, who says: "Man hatte, wie es scheint, hier eine Scheu sich durchaus klar zu erklären. Sicher ist jedoch das eine, dass sich keine Stelle findet, welche die Wiederverheiratung in solchem Falle [adultery] als schriftgemäss verteidigt hätte. Vielleicht wurden die Kirchenväter bei ihrer Ansicht von der alten Anschauung geleitet, nach welcher die zweite Ehe in jener Zeit überhaupt gemissbilligt, als honesta fornicatio, angesehen wurde."]

[Footnote 43: Thus the strict view is taken by Justin Martyr, Clement of Alexandria, Tertullian, and Cyprian. They all declare, says FREISEN, that "whoever marries a divorced person commits adultery;" but he adds, "Dass dieser Ehebruch auch dann statthabe, wenn die erste Ehe wegen Ehebruch geschieden, sagt meines Erachtens keiner der genannten Kirchenväter, ebenso wenig wie sie sagen, dass in solchem Falle die Wiederverheiratung erlaubt sei."--Op. cit., 770, 771. Cf. LOENING, op. cit., 607; who is criticised by GEFFCKEN, op. cit., 19 n. 1; also ESMEIN, op. cit., II, 49 ff.; PERRONE, op. cit., III, 243 ff.; WOOLSEY, op. cit., 109, 110; ZHISHMAN, op. cit., 101.]

[Footnote 44: TERTULLIAN, "On Monogamy," in DONALDSON'S Ante-Nicene Fathers, IV, 66, 67. See also GEFFCKEN, op. cit., 19-21.]

[Footnote 45: ESMEIN, op. cit., II, 51. CHRYSOSTOM (De libello repudii, c. iii), Asterius of Amasea, Theodoret, and Hilarius of Poitiers all appear to hold that marriage is absolutely dissolved by adultery, from which the right of second marriage for both parties logically follows: ibid., II, 50, 51; ZHISHMAN, op. cit., 101, 102; GEFFCKEN, op. cit., 31.]

[Footnote 46: FREISEN, op. cit., 771. Cf. also GREVE, Ehescheidung, 195, 208 ff. (second marriage in general); CIGOI, Unauflösbarkeit, 23 ff.; GEFFCKEN, op. cit., 22; LOENING, op. cit., II, 608.]

[Footnote 47: The rubric of Canon 10 of the council runs: "Ut is, cujus uxor adulteravit, aliam illa vivente non accipiat."--FREISEN, op. cit., 771.]

[Footnote 48: The canon itself provides: "De his, qui conjuges suas in adulterio deprehendunt, et iidem sunt adolescentes fideles et prohibentur nubere, placuit, ut, in quantum possit, consilium iis detur, ne viventibus uxoribus suis licet adulteris alias accipiant."]

[Footnote 49: This disparity is variously explained. FREISEN, op. cit., 771, sees here the influence of the Roman law (c. 1, Cod. ad leg. Jul. [ix-9]), which he alleges judges the man more leniently than the woman; but GEFFCKEN, op. cit., 22, 23, explains it more reasonably as the result of a difference of local practice, since such a discrimination between man and woman "the church had thus far zealously opposed;" and, besides, he insists that the passage from the code is not in point. It should be remembered, also, that some of the early Fathers, as we have seen, followed the illiberal principles of the Mosaic law discriminating against the woman; this prejudice may have prevailed at the Council of Arles. On these councils see also ESMEIN, op. cit., II, 55, 56; LOENING, op. cit., II, 609 ff.]

Finally, with Augustine, the strict doctrine of the early church takes a definite form, to which the masters of later times look back as to an authoritative canon of interpretation. He gave to the theory of indissolubility, declares Esmein, a "basis solid, in a measure scientific. He gave it a consistency forced from the sacrament of marriage. He set aside at one stroke all the causes of divorce admitted by the secular law: sickness, captivity, or prolonged absence. He was, one may say, the artisan who gave the final touch to the theory of indissolubility."[50] According to Augustine, adultery is the only scriptural ground of separation; but even this does not dissolve the nuptial bond. Moreover, those who, following the letter of Matthew's text, would for this offense allow the man, but not the woman, the right of repudiation, he "justly reproaches with violating one of the great principles of Christian law--the equality of the wedded pair."[51] Similar views are held by Hieronymus, Ambrose, Jerome, Chrysostom, and other contemporaries of Augustine;[52] and it is probably due to his influence mainly that in 407 the strict theory of indissolubility was proclaimed by the Council of Carthage;[53] as already in 405 it had been accepted in a decree of Pope Innocent I. addressed to the bishop of Toulouse.[54]

[Footnote 50: ESMEIN, op. cit., II, 53. "Mais c'est vraiment dans saint Augustin que l'on voit établie pour la première fois une relation logique et nécessaire entre le sacrement et l'indissolubilité."--Ibid., I, 65. Cf. WOOLSEY, op. cit., 110; ZHISHMAN, op. cit., 124.]

[Footnote 51: ESMEIN, op. cit., II, 51, 52, who collects the important passages from AUGUSTINE'S De adult. conjug., and his other works. Cf. FREISEN, op. cit., 772-74; WOOLSEY, op. cit., 69,110-12.]

[Footnote 52: FREISEN, op. cit., 772-74; WOOLSEY, op. cit., 112 (Jerome). See CHRYSOSTOM, Homilia, XIX, in 1 Cor., chap. 7, as opposed to his De libello repudii, c. iii, already cited. HIERONYMUS, Epist. 77 ad Oceanum de morte Fabiolae, c. 3, thus expresses the doctrine of equality of the sexes: "Apud nos, quod non licet feminis, atque non licet viris." Such also is the view of Lactantius: WOOLSEY, op. cit., 116.]

[Footnote 53: "Placuit, ut secundum evangelicam et apostolicam disciplinam neque dimissus ab uxore, neque dimissa a marito alteri conjungantur, sed ita permaneant, aut sibimet reconcilientur. Quod si contempserint ad poenitentiam redigantur": contained in Decret. Grat., c. 5 C. 32 qu. 7. Cf. FREISEN, op. cit., 774; ESMEIN, op. cit., II, 56, 57.]

[Footnote 54: FREISEN, op. cit., 774, 775; ESMEIN, op. cit., II, 59.]

In practical life the strict theory of the Fathers came very far short of realization. Hermas, who strongly favors the rigid view, allows the man to marry again whose wife sins a second time after once being reconciled.[55] Basil goes farther, declaring that the husband abandoned by his wife is worthy of pardon, and that the woman who then marries him is not condemned.[56] Even Jerome excuses Fabiola, a young Christian woman of high position who had repudiated a licentious husband and contracted a new marriage, saying, "if she is blamed because when her husband was divorced she did not remain unmarried, I will readily admit her fault, while I admit her necessity."[57] Origen shows that some rulers of the church in such a case permit a woman to marry again while the first husband is living;[58] and Augustine confesses that the women who abstain from remarriage after divorce are extremely few.[59]

[Footnote 55: "Verily, if her husband do not take her back, he sins, and allows himself to commit a great sin; he ought to take back the sinning woman who has repented; but ought not to do this often. For there is one repentance for the servants of God."-- HERMAS, Lib. II, mandat. iv, c. 1; WOOLSEY'S translation, Divorce, 108. Thus Hermas understands Paul in 1 Cor. 7:11 to refer to adultery as the cause of separation. Cf. GEFFCKEN, op. cit., 18, 19; FREISEN, op. cit., 770: WOOLSEY, op. cit., 107-9.]

[Footnote 56: BASILIUS, Epist. ad Amphiloch., c. 9: "Quare quae reliquit, est adultera, si ad alium virum accessit, qui autem relictus est, dignus est venia et, quae una cum eo habitat, non condemnatur." Cf. FREISEN, op. cit., 772; GEFFCKEN, op. cit., 30; ESMEIN, op. cit., II, 55; PERRONE, op. cit., III, 263. EPIPHANIUS (Penarion, lib. 59, c. 4) takes a similar position; FREISEN, op. cit., 772.]

[Footnote 57: JEROME, Ad Oceanum, cc. iii, iv. Cf. WOOLSEY, op. cit., 112, 113; ESMEIN, op. cit., II, 55.]

[Footnote 58: ORIGINES, Comment. in Matt., tom. xiv, no. 23. He declares this practice to be against the Scriptures; but still he is not inclined to judge severely, as it has been adopted to avoid worse evils. Cf. FREISEN, op. cit., 771; ESMEIN, op. cit., II, 54]

[Footnote 59: AUGUSTINE, De conjug. adult., II, 17. See FREISEN, op. cit., 772. Augustine also admits that the man who contracts a new marriage after putting away a guilty wife commits merely a venial sin: De fide et operibus, c. xix; ESMEIN, op. cit., II, 53; WOOLSEY, op. cit., 115.]

c) The legislation of the Christian emperors.--Where the most severe teachers of the early church, and even the ecclesiastical councils themselves, as we have seen, were thus led to temporize, it is not surprising that an enlightened secular policy should be compelled to take intermediate ground. The legislation of the first Christian emperors goes far beyond the narrow limits which Tertullian, Clement, or Augustine would have drawn. For centuries, through every change in the statutes, the Roman principles of one-sided divorce and divorce by mutual consent were maintained, though it was precisely these principles against which primitive Christianity took its firmest stand. "It was a maxim of Roman law far down beyond the time when the emperors became Christian, that no obstacle ought to be put in the way of a dissolution of marriage caused by the free consent of the partners, liberty of marrying again being in this case equally unrestricted. The lawyer Paulus says, that it has been thought improper that marriages, whether already contracted or about to take place, should be secured by the force of penalty (poenae vinculo obstringi), that is that two parties ought not to be forced by fear of penalty either to enter into a state of wedlock to which they were pledged, or to keep up such a state if they were agreed to the contrary. And it was laid down that marriage was so free, according to ancient opinion, that even agreements between the parties not to separate from one another could have no validity (pacta ne liceret divertere non valere)."[60] One-sided divorce was equally free, except in the cases and under the conditions fixed by Augustus,[61] "saving that here, if the woman had caused the divorce by her conduct, a large share of her dower was withheld from her, and if the man had caused it, he might be liable to pay over the whole of the dower, and that within a short term. The parties were subjected until the time of Justinian to a judicium morum, which might be instituted on a complaint of either consort. The fear, then, of losing a portion or the whole of the dower, and the dread of a loss of reputation, when the conduct of the parties in their married life should be investigated, seem to have been the only inducements to prevent one-sided divorces. But what if no misconduct could be alleged on the part of the man, what if he dismissed his wife to marry a richer woman, the law in this case had no restraining power. And where the wife brought no dower, as might happen in the lower classes, there could be no operation of the law at all."[62]

[Footnote 60: WOOLSEY, op. cit., 92, 93: PAULUS, in Dig., XLV, 1, 134; Cod., viii, 39, 1, 2, de inutil. stip.]

[Footnote 61: The requirement of seven witnesses; the case of the freedwoman marrying her patron; and the obligation of the husband, under penalty, to put away a guilty wife: see above, p. 16.]

[Footnote 62: WOOLSEY, op. cit., 94. Cf. on the survival of the principles of Roman law, GEFFCKEN, op. cit., 24, 25.]

Accordingly, the legislation of the early Christian emperors shows no radical departure from the principles of the existing civil law. Divorce ex consensu was not prohibited until Justinian, who decreed that only when both partners are about to enter the cloister shall a separation by mutual agreement be permitted.[63] But this prohibition was short-lived; for in consequence of it the number of suits growing out of "poisoning or other attempts upon life among married people increased in so frightful a manner"[64] that the provision was abrogated by Justin II., the immediate successor of Justinian.[65] On the other hand, the efforts of Constantine and later rulers are directed mainly toward checking the evils of one-sided divorce. This is done chiefly through restricting the number of legal grounds of separation and sharpening the penalties for their disregard. Thus in 331 Constantine ordains that trifling causes (exquisitae causae) shall no longer suffice for a repudium justum or legal divorce at the will of one party. The woman may put away her husband only when he is a murderer, poisoner, or violator of sepulchers; and the man is allowed to repudiate his wife only when she is guilty of poisoning, procuring, or adultery. If the divorce takes place for any other reason, the woman so violating the statute shall forfeit all claim to restitution of dower and suffer transportation to an island; while the man in like case must at once surrender the entire dos, being prohibited also from contracting another marriage.[66] "Still further, if he thus married, his repudiated wife 'could invade his house,' as the law expresses it, and acquire possession of the entire dower of her successor."[67] It should be noted, however, that the Roman principle of divorce bona gratia, or one-sided separation for a legal cause not implying any guilt or offense, was still retained.[68]

[Footnote 63: Nov., 117, c. 10.]

[Footnote 64: GEFFCKEN, op. cit., 25.]

[Footnote 65: Nov., 140; cf. GEFFCKEN, loc. cit.]

[Footnote 66: GEFFCKEN, op. cit., 25: L. 1. C. Theod. de repud., 3, 16. Cf. also WOOLSEY, op. cit., 96, 97. On the legislation of Constantine and his successors see WÄCHTER, Ehescheidungen, 201 ff., 259 ff.; GLASSON, Le mariage civil et le divorce, 203 ff.; ESMEIN, Mélanges, 157 ff.; LUCKOCK, Hist. of Marriage, 112 ff.; COMBIER, Du divorce, 81 ff.; TISSOT, Le mariage, 88 ff.; TEBBS, Essay, 139 ff.; BENNECKE, Ehebruch, 16 ff.; HENNET, Du divorce, 25 ff.; POPP, Ehescheidung, 62 ff.]

[Footnote 67: WOOLSEY, op. cit., 97; WÄCHTER, op. cit., 207 ff.]

[Footnote 68: Constantine allowed the wife the right of divorce whose husband had been four years absent in the army without sending her word. Justinian first raised the period of waiting to ten years, and then entirely abolished divorce for this cause. "Dagegen blieb die Scheidungsbefugniss bestehen für den Fall der Impotenz, wobei jedoch nach Justinians Bestimmung eine Probezeit von zwei, später von drei Jahren eingehalten werden sollte." A vow of chastity or imprisonment was also counted a legal ground of separation by Justinian: GEFFCKEN, op. cit., 27. Cf. also GLASSON, Le mariage civil et le divorce, 205, who appears to confuse divorce ex consensu and bona gratia.]

In 363 Julian repealed the divorce law of Constantine;[69] but the principle of restricting the grounds of arbitrary repudiation was again adopted in 421 by Honorius and Constantius; though, like Julian, they allowed arbitrary separation for lesser faults, with retention of some portion of the dower.[70] Theodosius II., in 439, abrogating previous legislation, restored the law of the early empire; but "after ten years of experiment, in which divorces had alarmingly increased, gave out another law,[71] which laid down the causes for which one party might lawfully separate from the other. The woman was authorized to do this if the man had been guilty of certain crimes, among which are murder, poisoning, plotting against the government, fraud, and various sorts of robbery, cruelty toward or attempts on the life of his wife, intimacy with prostitutes, and adultery. The causes for which a man could without penalty put away his wife were for the most part of the same description with those just mentioned. But peculiar to her are the offenses of passing the night out of his house, or visiting the theatre, circus, or other public place against his will."[72] If the divorce occurs for any reason other than those mentioned in the statute, the penalty for either person is loss or surrender of the dower and the ante-nuptial gift; while in addition the woman, under penalty of "infamy," is prohibited from marrying again within five years.[73] This is a severe discrimination against the wife; but in one important matter, it will be noted, the law of Theodosius is strikingly impartial; for separation is permitted on account of adultery of the man as well as for that of the woman. In this regard the measure is far more liberal than the earlier Roman law, according to which adultery is not a crime which a husband can commit against his wife.[74] Moreover, while this offense is not always mentioned in the constitutions of the Christian emperors as legal ground for divorcing the husband, it is punished with extreme rigor. Sometimes both offenders are condemned to death. Sometimes a discrimination is made, the woman usually suffering the harsher penalty.[75]

[Footnote 69: L. 2, C. Theod. de dotib., 3, 13. Cf. GEFFCKEN, op. cit., 25; WÄCHTER, op. cit., 202, 213.]

[Footnote 70: L. 2, C. Theod. de repud., 3, 16. Cf. WÄCHTER, op. cit., 215, 216.]

[Footnote 71: L. 8, C. de repud., 5, 17.]

[Footnote 72: WOOLSEY, op. cit., 98, 99; cf. GEFFCKEN, op. cit., 25, 26. The woman is allowed fourteen causes of divorce and the man but six; but in effect they are nearly equivalent, except as indicated: see WÄCHTER, op. cit., 216 ff.]

[Footnote 73: See the summary of the act in GEFFCKEN op. cit., 25, 26; and WÄCHTER, op. cit., 218-20.]

[Footnote 74: L. 34, § 1, Dig., XLVIII, 5, ad. leg. Jul.: L. 101, Dig. dev. sign. "It may need to be said that only a crime to which a married woman was a party could be called adulterium. The Romans held that the jus tori pertained to the husband. He could not commit this crime against his wife."--WOOLSEY, op. cit., 90, note. Cf. FREISEN, Geschichte des can. Eherechts, 617.]

[Footnote 75: "Constantine the Great imposed death with confiscation of goods on the adulterer. His sons punished the adulteress with burning and took away from her paramour the privilege of appeal, but this seems to have been only a case of extraordinary and temporary legislation. Under Valentinian the guilty woman was again sentenced to death. Justinian's legislation shut up the woman in a cloister, making it illegal for her husband to take her back within two years. If the parties were not reconciled at the end of this term the marriage was dissolved, and the woman's imprisonment in the cloister was perpetual. As for the offending man, he was visited with death, but not with confiscation of goods, if he had near relatives in the direct line."--WOOLSEY, op. cit., 91, 92; REIN, Criminalrecht, 848-52; Nov., 134, § 10. In general, on the development of the law relating to adultery, see FREISEN, op. cit., 615-35, 830 ff.; ESMEIN, Le mariage en droit canonique, I, 102, 103, 111, 384-90; II, 61, 62, 90 ff., 125, 296 ff.; idem, Mélanges, 157 ff.; BENNECKE, Ehebruch, 13-33.]

The legislation of Justinian, except in abolishing divorce by common consent, does not differ essentially in principle or detail from that of Theodosius II. The causes assigned for a reasonable divorce (ex rationabili causa) are much the same as in the former law. For disregard of the statute the woman loses her dower and is condemned to lifelong imprisonment in a cloister; while the man forfeits the nuptial gift (donatio propter nuptias), and besides must pay a fine equal to one-third of that donation.[76]

[Footnote 76: Nov., 117, cc. 8, 9. Cf. GEFFCKEN, op. cit., 26, 27; WOOLSEY, Divorce, 99, 100; WÄCHTER, op. cit., 206, 207, 222 ff.]

Thus it appears that during the two centuries between Constantine and Justinian the legislation of the state relative to the vital question of divorce is practically untouched by the influence of Christianity. Informal divorce bona gratia[77] and divorce by mutual consent, both contrary to Christian teaching, are freely allowed. The principle of further marriage after separation is fully maintained for the innocent party, and usually under restrictions for the guilty person as well. The causes of legal divorce are, indeed, limited and the penalties for unjust repudiation made more severe; but the strict principle of indissolubility of the marriage bond, as already conceived by Augustine and his contemporaries, is completely ignored.[78]

[Footnote 77: On divorce bona gratia see WÄCHTER, op. cit., 224 ff.]

[Footnote 78: Cf. the conclusions of GEFFCKEN, op. cit., 28, 29; WOOLSEY, op. cit., 101.]

d) The compromise with German custom.--Far more important in its results is the contact of the Christian doctrine with Germanic customs and ideas. To the newly converted nations of Teutonic stock came the western empire as a proper heritage. It would be their task to make the history of the future; to construct a new civilization by blending the best elements of their own culture with the maturer results of Roman experience. But this could be accomplished only through ages of struggle and compromise; through a slow and painful process of amalgamation in religion, language, and jurisprudence. For the Germans were relatively young in social progress. In law and institutions at the time of conversion they stood about where the Romans were when Roman legendary history begins. With respect to the customs of marriage and divorce they stood even lower; for the earliest collections of folk-laws, some of which were made after the acceptance of Christianity, disclose marriage as a real contract of sale through which the wife in theory, and no doubt often in practice, becomes the husband's chattel. With regard to the primitive law of divorce there is scarcely any direct information. But it seems probable that originally the right of repudiation was the sole privilege of the man, though in practice the arbitrary use of his power must have been restrained by dread of the blood-feud and the fear of pecuniary sacrifice.[79] In the historical period, however, and long after the conversion divorce by mutual agreement seems to have prevailed very widely among the Germanic peoples; but with the exception of the Lex romana Burgundionum, it does not appear to be sanctioned in the folk-laws until the seventh[80] century, which fact has led to the conjecture that this form of separation, "originally alien to the German legal consciousness," was gradually adopted under Roman influence.[81] The folk-laws show that, side by side with divorce by free consent of the parties, the husband still possessed the right to put away his wife for certain specified crimes;[82] or, indeed, without assigning any cause whatever, though in that case he might suffer serious disadvantage with respect to property.[83]

[Footnote 79: GEFFCKEN, op. cit., 33, 34, 43, 44. With this view JEAFFRESON, Brides and Bridals, II, 295, 296, agrees: The Anglo-Saxon wife, he says, could be repudiated at will by her "master." But many writers hold that divorce by mutual consent is recognized in the ancient Teutonic law. Thus HEUSLER, Institutionen, II, 291, 292, declares that there was absolute liberty of separation by agreement, and that one-sided divorce (by Kündigung) was very restricted. A similar opinion is held by ZOEPFL, Deutsche Rechtsg., III, 37, 38; POLLOCK AND MAITLAND, Hist. of English Law, II, 390; GLASSON, Le mariage civil et le divorce, 185 ff., 195; FREISEN, Geschichte des can. Eherechts, 779-81; LOENING, Geschichte des deut. Kirchenrechts, II, 617; SCHROEDER, Rechtsgeschichte, I, 174. In general, cf. BRUNNER, Rechtsgeschichte, 302 ff.; WEINHOLD, Deutsche Frauen, II, 43 ff.; GRIMM, Rechtsalt., 454; WALTER, Deutsche Rechtsgeschichte, I, 134-36; GLASSON, Histoire du droit et des inst. de l' Angleterre, I, 119, 120.]

[Footnote 80: For examples among Franks and Alamanni see MEYRICK, in Dict. Christ. Ant., II, 1111.]

[Footnote 81: GEFFCKEN, op. cit., 34, 43, 44. "Das erste Volksrecht, welches die freiwillige Scheidung ganz analog dem römischen divortium communi consensu gestattet, ist der seiner Entstehung nach in die erste Hälfte des 7. Jahrhunderts fallende pactus Alamannorum."--Ibid., 44. The first formulary (libellum or libellus repudii) for a divorce by mutual consent in the folk-laws appears in the formulae Andegavenses, a collection made in the last quarter of the same century: ibid., 44; also BRUNNER, Rechtsgeschichte, 403, 404; FREISEN, op. cit., 778, 779. The following formulary for such a divorce is taken from Marculf (II, 30) by GLASSON, op. cit., 186, though it may have been intended for the Roman population living on Frankish territory: "Idcirco dum et inter illo et conjuge sua ... discordia regnat ... placuit utriusque voluntas ut se a consortio separare deberent.... Propterea has epistolas inter se uno tenore conscriptas fieri et adfirmare decreverunt, ut unusquisque ex ipsis, sive ad servitium Dei in monasterio aut ad copulam matrimonii se sociare voluerit, licentiam habeat."]

[Footnote 82: Lex Visig., III, 6, c. 2 (adultery); Lex Burgund., 34, 3 (adultera, maleficia, sepulcrorum violatrix): FREISEN, op. cit., 779.]

[Footnote 83: Pact. Alam., III, 3; Lex Bajuw., VII, 14; Lex Burg., tit. 34, c. 2; Lex Vis., III 6, c. 2; FREISEN, op. cit., 779.]

Another principle of the ancient German law it is necessary to mention in order to obtain a starting-point for the measure of Christian influence. Originally, according to Wilda,[84] by the strict legal theory adultery is not a crime which a man can commit against his wife. He may be punished: indeed very generally in the folk-laws both the guilty persons may be slain when surprised by the aggrieved; but if he be punished "it is not for unfaithfulness to his wife, but for violating the rights of another husband."[85] On the other hand, for similar misconduct the woman is put to death. So "in Saxony, where the old heathen ideas survived until the forcible conversion under Charles the Great, as Boniface reports, the adulteress, stripped to the girdle, was driven out of her husband's house and whipped through the streets of the village until she died."[86]

[Footnote 84: WILDA, Strafrecht, 821 ff. Cf. WALTER, Deutsche Rechtsgeschichte, II, 398 ff.; GLASSON, Hist. du droit, I, 120.]

[Footnote 85: GEFFCKEN, op. cit., 33. The following provision of the old English law illustrates this principle in all its harsh reality: "If a freeman lie with a freeman's wife, let him pay for it with his wer-geld, and provide another wife with his own money, and bring her to the other." Here doubtless the guilty woman had been slain: Laws of Æthelberht, 31: HADDAN AND STUBBS, Councils, III, 45. For the same offense with an "esne's" wife, sec. 85 of the same laws requires a man to "make two-fold bot": ibid., III, 50. Cf. also secs. 10, 11: ibid., III, 43; CLEVELAND, Woman under the English Law, 9, 51 ff. (adultery and divorce).]

[Footnote 86: GEFFCKEN, op. cit., 33. Cf. in general TACITUS, Germania, c. 19; GRIMM, Rechtsalt., 454; FREISEN, Geschichte des can. Eherechts, 779; WEINHOLD, Deutsche Frauen, II, 25-27, who shows that the guilty woman's paramour might lawfully be slain by the husband when seized in the act.

For discussion of the customs of the early Germans regarding the punishment of adultery and summaries of the provisions of the folk-laws, the capitularies, and later legislation on the subject see ROSENTHAL, Rechtsfolgen des Ehebruchs, 40 ff.; and BENNECKE, Die strafrechtliche Lehre vom Ehebruch, 82 ff. Of some service is HELLER, Ueber die Strafe des Ehebruchs, 17 ff., passim.]

To analyze the secular laws or ecclesiastical canons relating to divorce, as they were slowly developed on Germanic territory after the conversion, is not an easy task; for they reveal a striving to harmonize in various ways the often irreconcilable elements of Roman, Teutonic, and Christian ideas. In the first place, the imperial legislation remained in force for the Roman population, though in the compilations made under the barbarian kings various changes are made to satisfy new and complex relations.[87] Next, the German folk-laws show in many ways the evidences of compromise with Christian doctrine under the exigencies of practical life.[88] National sentiment will not suffer the absolute interdict of further marriage after separation; but the penalties for unjust action may be made so severe as to prepare the way for the strict theory of the church. In the Burgundian code, for example, the man who puts away his wife for any cause other than those named in the statute must surrender to her his house and all his possessions; whereas in the West Gothic Interpretation of the Theodosian code the chapter on which this provision is modeled prescribes a similar penalty, not for the illegal divorce itself, but for contracting a second marriage after the unjust repudiation of the first wife.[89] Accordingly, in these laws one-sided divorce on the part of the husband is not entirely taken away; but the grounds on which he may act are more or less restricted in harmony with the scriptural rules; and the wife is herself given a rudimentary right of one-sided repudiation when the husband is guilty of very grave crimes. In the law of the West Goths, for instance, where Christian influence is more marked than in any of the other codes before the close of the eighth century,[90] the right of the man to put away his wife is restricted to the one cause mentioned by Matthew; while for two scandalous wrongs the woman may repudiate the husband and contract another marriage if she likes.[91] On the other hand, the ancient rule that a man cannot be guilty of adultery against his wife yields very slightly to the Christian principle of equality of the sexes with respect to the punishment of carnal sins. Generally, according to the harsh sanction of the ancient law, the guilty woman as well as her paramour may be slain by the aggrieved.[92] In theory, as Geffcken insists, a husband in similar case is still merely responsible for violating the rights of another man; the only concessions to the Christian teaching being a tendency to check concubinage and the privilege of the woman, already mentioned, of repudiating her husband for certain offenses, among which, it may be noted, intimacy with other women is not found.[93]

[Footnote 87: On the Lex romana Burgundionum, the _Lex romana Visigothorum_, and the Lex romana curiensis, see FREISEN, op. cit., 776-78. Cf. also GEFFCKEN, op. cit., 42, 43. The folk-laws are clearly reviewed by MEYRICK in _Dict. Christ. Ant._, II, 1111.]

[Footnote 88: BOEHMER, Ehegesetze im Zeitalter Karls des Grossen, 89 ff., summarizes the provisions of the folk-laws and capitularies regarding divorce, enumerating twelve different causes of separation, some of them being properly grounds of nullity.]

[Footnote 89: See GEFFCKEN'S interesting discussion of tit. 34, c. 4, Lex Burgundionum, in Ehescheidung, 35-38. He shows, following LOENING, Geschichte des deut. Kirchenrechts, II, 619, note, that the clause in question is of later origin than the rest of tit. 34, probably under Christian influence. Cf. GLASSON, Le mariage civil et le divorce, 187, 188. For the text see SALIS'S edition of the Burgundian laws in Mon. Germ. hist.: Legum, sec. i, tom. ii, p. 68; and compare sec. xxiv, "De mulieribus Burgundiis ad secundas aut tertias nuptias transeuntibus," ibid., pp. 61-63; and sec. lxviii, "De adulteriis," ibid., p. 95.]

[Footnote 90: The Lex Bajuwariorum, near the end of the eighth century, likewise admits divorce only for the one cause: GEFFCKEN, op. cit., 46.]

[Footnote 91: Lex Visig., lib. iii, tit. iv, c. 3; tit. v, c. 5; tit. vi, c. 2. For sodomy or for forcing her to adultery, the wife may put away the husband and marry again. Cf. GEFFCKEN, op. cit., 38-40; GLASSON, op. cit., 187. There is a similar provision in the Longobard code: GEFFCKEN, op. cit., 41. As a general rule, the woman is not allowed one-sided divorce; indeed, for attempting such a separation, the Lex Burgund., tit. xxxiv, c. 1, prescribes the death penalty: cf. FREISEN, op. cit., 780, who holds that the woman cannot by German law have the right of one-sided divorce, because she cannot dissolve the mund which belongs solely to the man; and he contends against Sohm, Schroeder, and Loening that when the woman, as in exceptional cases cited, has the right of separating, it is not she who dissolves the marriage, but the law indirectly by depriving the man of the mund.]

[Footnote 92: So by the Burgundian, West Gothic, and Longobard laws: GEFFCKEN, op. cit., 35, 39, 41.]

[Footnote 93: C. 6 of the laws of the Longobard Grimoald appended to the Edictus Rothari in 668, after acceptance of orthodox Catholicism, permits the wife not guilty of a culpa legitima to leave the husband who keeps permanently in the house a concubine whom he prefers to the wife. It may be noted that occasional fornication is not mentioned; and that c. 8 of the law assumes as a rule that there will be a reconciliation: GEFFCKEN, op. cit., 41, 42. Cf. FREISEN, op. cit., 780, who holds that, according to c. 8 of the Lex Grimoald., bigamy does not allow the wife a divorce.]

Such are the salient features of secular legislation on German territory following the migration and settlement of the new nations. Let us now look at the question from the opposite point of view--that of the decrees and practice of the church itself. For more than three hundred years after the strict theory of Augustine had been proclaimed by the Council of Carthage and by Innocent I. in the beginning of the fifth century, there is more or less wavering on the part of ecclesiastical authorities. In general, it may be said there is a tendency to uphold the rigid doctrine of indissolubility; but the evidences of compromise with popular sentiment are by no means wanting. Almost always in the papal letters divorce with remarriage is absolutely forbidden.[94] Yet in 726 Gregory II., in a letter addressed to St. Boniface, permits a man to contract a new marriage because his wife by reason of infirmity is unable to perform her conjugal duty; and this opinion has proved a sore puzzle to canonists and theologians, for it is utterly inconsistent with an earlier decision of the same pontiff.[95] A similar inconsistency exists in the conciliar decrees. The doctrine of indissolubility is rigidly enforced by the Council of Angers in 453; the two Councils of Orleans in 533; the Council of Nantes in 658; that of Friuli in 796; and generally by those of the ninth century.[96] On the other hand, several decrees are much more tolerant. In 465 the Council of Vannes "expressly exempts from anathema those men who marry again after putting away their wives for adultery proved;"[97] and, still more liberal, the Council of Agde, 505, while expressly allowing more than one cause of separation a vinculo, threatens with excommunication only those who repudiate their wives for the sake of remarriage without "establishing in advance before the bishops of the province the causes of their divorce."[98]

[Footnote 94: ESMEIN, Le mariage en droit canonique, II, 59; FREISEN, op. cit., 782; LUCKOCK, Hist. of Marriage, 154-72.]

[Footnote 95: On Gregory's two decisions see ESMEIN, op. cit., II, 59, 60; and FREISEN, op. cit., 331 ff., 782, who tries to explain away the contradiction, claiming that here is a case of declaring a marriage void ab initio. Cf. PERRONE, De mat. christ., III, 332 ff.; LOENING, Geschichte des deut. Kirchenrechts, II, 623.]

[Footnote 96: ESMEIN, op. cit., II, 57, 58.]

[Footnote 97: Ibid., 57; FREISEN, op. cit., 781.]

[Footnote 98: Decret. Grat., c. 1 C. 33 qu. 2. Cf. FREISEN, op. cit., 781; ESMEIN, op. cit., II, 57.]

At the time of the conversion the old English laws on this subject were probably much the same in character as those of their Teutonic kinsmen across the channel. From the code of Æthelberht it may perhaps be inferred that divorce is allowed at the will of either spouse. Apparently in all cases of arbitrary separation the responsible party suffers a severe penalty. The man loses all claim to repayment of the purchase price of the wife; while the woman or her guardian has to restore the same to the husband or his family.[99] The penitentials, as will presently be seen, afford abundant evidence that in practice the spirit of ancient custom yielded but stubbornly to ecclesiastical influence. But, so far as it could be done by legislation, the century following the conversion of Kent saw the strict doctrine of the Roman see established in the daughter-church of England. At the Council of Hertford in 673 it is decreed that divorce shall not be permitted except on the ground assigned by the "holy evangel;" but should a man "put away the wife united to him in lawful wedlock, if he wish to be rightly a Christian, let him not be joined to another, but remain as he is or else be reconciled to his wife."[100] After nearly two centuries, during which the records are silent on this subject, the same rule is laid down in the so-called Law of the Northumbrian Priests, by which anathema is invoked on one in holy orders who shall "forsake a woman and take another;" while the layman guilty of the same offense shall want "God's mercy, unless he make bot;" everyone being required to "lawfully keep his wife, as long as she lives, unless ... they both choose, with the bishop's consent, to separate, and will thenceforth observe chastity."[101] From this time onward, as clearly shown by the canons of Dunstan,[102] those issued under Æthelred at the Council of Eanham (ca. 1009),[103] and later decrees, the theory of indissolubility was unswervingly accepted by the English church under sanction of the temporal power.[104]

[Footnote 99: The statements of the text are probably sustained by Æthelberht, 31, 77-83: in HADDAN AND STUBBS, Councils, III, 45, 49; THORPE, Anc. Laws, I, 11, 33, taking into account the usual effects of wife-purchase. Cf. however, JEAFFRESON, Brides and Bridals, II, 294-98, who holds that among the pagan Britons and Anglo-Saxons divorce may be described as "simple repudiation of wives at the will of their masters." In the tenth century, he adds, Howell Dha, sovereign of Wales, "decreed that a husband might righteously eject from his home the wife who had given a single kiss to any man but himself." See also GLASSON, Le mariage et le divorce, 195, whose references to the laws of Æthelberht do not seem to warrant all his conclusions; also his Histoire du droit, I, 120; and POLLOCK AND MAITLAND, Hist. of Eng. Law, II, 390. In general see ROSENTHAL, Rechtsfolgen des Ehebruchs, 55 ff.]

[Footnote 100: HADDAN AND STUBBS, op. cit., III, 118. ESMEIN, op. cit., II, 57, regards the last clause as merely advising the man not to marry again; and FREISEN, op. cit., 782, thinks it not quite certain that it applies to the case of separation for adultery. Cf. also LUCKOCK, Hist. of Marriage, 167-69; and CIGOI, Unauflös. der ch. Ehe, 79.]

[Footnote 101: Law of Northumbrian Priests, secs. 35, 64, 65: THORPE, Anc. Laws, II, 296, 300. Cf. LUCKOCK, op. cit., 170, 171; JOHNSON, Canons, I, 950, 35, 54.]

[Footnote 102: JOHNSON, op. cit., I, 963, 27.]

[Footnote 103: Ibid., 1009, 8.]

[Footnote 104: The ecclesiastical laws of Howell the Good of Wales (928) show more clearly, perhaps, than is done anywhere else the way in which the church was often constrained to put up with barbarian custom. One-sided divorce with remarriage is allowed each party, under penalty for repudiation without legal cause. If the husband desert the wife within seven years, he must pay her the dower (agweddi), the maiden-fee (cowyll), and the maiden-dues (gobyr) for the lord. "If after seven years, he leave her; let all be shared between them, unless privilege should give precedence to the husband: two parts of the children go to the husband, and the third to the mother. The eldest and the youngest go to the father." "A man is free to forsake his wife, if she notoriously attach herself to another man; and she is to obtain nothing of her right excepting the three things [cowyll, argyvren (paraphernalia), wyneb-werth (fine for husband's fornication)] which are not to be taken from a woman, and the seducer is to pay to the lawful husband his saraad," or injury fine. "If a man deserts his wife unlawfully and takes another; the rejected wife is to remain in her house until the end of the ninth day; and then, if she be suffered to depart entirely from her husband, everything belonging to her is to go in the first place out of the house; and then she is to go last out of the house, after all her property; after that, on bringing the other into the house, he is to give dilysdawd (assurance) to the first wife; because no man, by law, is to have two wives." "Whoever shall leave his wife, and shall repent leaving her, she having been given to another husband; if the first husband overtake her with one foot in the bed and the other out; the first husband by law is to have her." "For three causes, if a woman desert her husband, she is not to lose her dower: for leprosy; want of connection; and bad breath."--HADDAN AND STUBBS, Councils, I, 246-51.]

Already in the Carolingian empire, through co-operation of the secular authority, the teachings of Augustine had gained a similar triumph. The ecclesiastical capitularies of the Frankish kings, from the ascendency of the house of Charles Martel to the consolidation of the state under Charles the Great, are of especial interest in this connection, for they prepare the way for the synthetic work of the canonists. During the dark period of the Merovingian line any attempt through legislation to deal seriously with divorce or any similar social or moral problem could scarcely arise; for it would have meant some restriction of the prevailing licentiousness, to which all classes were committed. Civil rulers were steeped in debauchery. The church was apathetic and corrupt. "With the advent of the Carolingian major domus, the level of morality begins to rise."[105] Already in 744, at the Synod of Soissons, a royal capitulary clearly forbids divorce to each spouse, except that a husband may put away a guilty wife on the scriptural ground; but in that case whether the innocent person may contract a new marriage we are not informed.[106] This attempt to enforce the rigid doctrine of the ancient church seems to have been premature; for a few years later, at the synods of Verberie (753) and Compiègne (757), rules much more tolerant are proclaimed.[107] These capitularies possess more than usual historical interest in view of their "profound and durable influence" on the final settlement of the law by Gratian and his successors.[108] Several grounds of divorce with remarriage are admitted. According to the decree of Verberie, the man whose wife plots against his life may put her away and take another spouse; but the divorced woman may not remarry. So also, by the same decree, the man may form a new marriage, if his wife through love of her parents or some selfish interest refuses to accompany him when he flees from danger or is constrained to follow his lord into another duchy or province. In this case, the woman must remain unmarried while her husband lives.[109] Again, the Synod of Verberie provides that if either person in course of the wedded life shall fall into slavery, the one remaining free is at liberty to marry again when he likes. "A single exception is admitted which throws a sombre light on the society of that epoch: if a spouse under pressure of misery has sold himself as a slave, the partner remaining free, who has shared the bread thus gained and whom the sale has saved from hunger, is not entitled to a divorce."[110]

[Footnote 105: GEFFCKEN, op. cit., 45, who gives, 44-46, 52-55, an interesting discussion of the reasons for the absence of divorce regulations during the Merovingian era.]

[Footnote 106: ESMEIN, op. cit., II, 58, 64; GEFFCKEN, op. cit., 55.]

[Footnote 107: The dates are uncertain. In general, on these synods see FREISEN, op. cit., 782-84; GEFFCKEN, op. cit., 55-57; and especially ESMEIN, op. cit., II, 64-69; who gives a clear summary of their decrees. Cf. PERRONE, De mat. christ., III, 332, 338 ff.]

[Footnote 108: ESMEIN, op. cit., II, 69.]

[Footnote 109: C. ix of the decree runs: "Si quis necessitate inevitabili cogente in alium ducatum seu provinciam fugerit, aut seniorem suum, cui fidem mentiri non poterit, secutus fuerit, et uxor ejus, cum valet et potest, amore parentum aut rebus suis, eum sequi noluerit, ipsa omni tempore, quamdiu vir ejus, quem secuta non fuerit, vivet, semper innupta permaneat. Nam ille vir ejus ... si se abstinere non potest, aliam uxorem cum poenitentia potest accipere." Cf. ESMEIN, op. cit., II, 66, note. In contrast with this decision, the Synod of Compiègne forbids both parties to remarry when the husband abandons his wife in order to escape private vengeance: ibid., 66.]

[Footnote 110: ESMEIN, op. cit., II, 68; I, 325: ap. c. vi, decree of Verberie. Cf. also FREISEN, op. cit., 788; and CIGOI, Unauflös. der ch. Ehe., 74, who regards this synod more as an imperial diet than an ecclesiastical assembly, and so excuses its action. Cf. HEFELE, Konzilien-Geschichte, III, 537.]

Even more striking is the decree of Compiègne regarding the effect of religious vows. When by agreement either partner enters the cloister, the spouse remaining in the world has the right of remarriage. To this decision, so sharply in contrast with the mature doctrine of the canon law, it is significant that a papal delegate to the synod, Bishop George of Ostia, gave his consent. The severer and more orthodox principle had been followed by the Synod of Verberie, which prohibits the man from remarriage when he suffers his wife to take the veil.[111] Both decrees permit separation on various other grounds, such as error of condition and certain degrees of affinity, which, under the dangerous guise of nullity, "constitute veritable exceptions to the rule" that the nuptial tie cannot be dissolved.[112]

[Footnote 111: ESMEIN, op. cit., II, 65.]

[Footnote 112: These decrees are for the most part included in the collection of Gratian; "mais il se fera tout un travail pour les mettre d'accord avec la règle triomphante de l'indissolubilité; elles contribueront néanmoins à introduire, dissimulées sous la forme de nullités, de véritables exceptions à cette règle."--ESMEIN, op. cit., II, 69.]

Finally there is a singular omission which has called forth an instructive comment from a modern scholar. "It is remarkable that neither of these decrees mentions adultery as a cause of divorce. This is so without doubt because the capitulary of Soissons already gave that quality to the sin of the woman who alone was considered. Besides, in that rude society, this cause of divorce in most cases was probably superfluous. The deceived husband had no need to invoke it. Not merely when he surprised his wife flagrante delicto, but also when he had grave suspicion against her, did he take justice into his own hands, killing the guilty woman; and the deed probably went unpunished. In this regard the church appears to have shown ample indulgence. No doubt she entirely forbade a new marriage to the spouse who slew a partner; but that was never more than a prohibitive impediment for which dispensation was granted with sufficient ease. Here a means was admitted by law and custom for evading the rule of indissolubility of the conjugal bond. St. Augustine had already contemplated it; and various passages of Hincmar of Rheims show clearly that more than one husband had recourse to it in his time."[113]

[Footnote 113: Ibid., 66, 67.]

It is strange that so wide a relaxation of the principle accepted by the early church, in part under the sanction of Rome itself, should have preceded by so few years its complete triumph in the capitularies of Charles the Great. From 774 onward, with slight wavering, the rigid doctrine is maintained both by imperial and papal authority; as likewise it is expounded in the canonical literature of Gratian's predecessors, notably by Benedict Levita and Hincmar of Rheims.[114]

[Footnote 114: Cf. GEFFCKEN, Ehescheidung, 57-62; FREISEN, Geschichte des can. Eherechts, 792 ff.]

But there is other testimony of a most convincing nature that the practice of the church could not keep pace with her theory. It is afforded by the penitentials. These are private manuals designed for the practical guidance of priests in their daily ministrations, one of the oldest and most interesting of which is that bearing the name of Theodore of Tarsus,[115] the reorganizer of the English church and president of the Council of Hertford, where the orthodox rule relating to divorce was proclaimed. On this penitential and the somewhat older one of the Irish Columban the earlier Frankish penitentials are modeled, sometimes with literal exactness. Divorce with remarriage is allowed to one or both persons on various grounds. In case of adultery a discrimination is made in favor of the husband. He is given the right of repudiating the guilty woman; and, in case it be a dissolution of the first marriage, he may take a new spouse without delay. Even the divorced woman may remarry after a penance of five years. For the like sin, however, the wife is forbidden to send the husband away, except to enter a monastery.[116]

[Footnote 115: The Poenitentiale Theodori is contained in HADDAN AND STUBBS, Councils, III, 173-213; also that of Ecgberht, ibid., III, 413-31. Versions of these may be found in THORPE, Ancient Laws, II, 1 ff., 129 ff.; also with many others in WASSERSCHLEBEN, Bussordnungen; and in SCHMITZ, Bussbücher, 510 ff., 565 ff., who, contrary to the generally accepted view, traces (3 ff.) all the penitentials to Roman models. In general, see GEFFCKEN, op. cit., 61-67; FREISEN, op. cit., 785-92; ESMEIN, op. cit., II, 60-64; PERRONE, De mat. christ., III, 374 ff.; HINSCHIUS, "Das Ehescheidungsrecht nach den angelsächsischen und fränkischen Bussordnungen," Zeitsch. für deut. Recht, XX, 66 ff.; ROSENTHAL, Rechtsfolgen des Ehebruchs, 2 ff.; and especially BENNECKE, Ehebruch, 34 ff. LUCKOCK, Hist. of Marriage, 165-67, tries, of course, to take away the authenticity of THEODORE'S Penitential.]

[Footnote 116: Poenitentiale Theod., II, xii, 5, 6: HADDAN AND STUBBS, Councils, III, 199: cf. THORPE, Anc. Laws, II, 17. For similar provisions, see Poenitentiale XXXV Capitulorum, c. 9, § 1: WASSERSCHLEBEN, Bussordnungen, 511; and the Excerptiones Ecgberti, c. 121: THORPE, op. cit., II, 114, 115.]

Again, for malicious desertion on the part of the wife, the man may contract a new marriage after five years, if the bishop gives his consent;[117] and a woman whose husband loses his liberty for crime committed has the right to wed another man after a single year, if it be the first marriage which is thus dissolved.[118] Remarriage is allowed either spouse when the other is made captive in war;[119] and in case of conversion each spouse has the right of one-sided divorce, if the other remains in paganism.[120] Several other grounds of repudiation are recognized, as, for instance, when anyone has ignorantly married a person of servile condition;[121] or when a husband or wife is raised in rank and the consort remains in servitude.[122] But perhaps the most striking proof that in practice the church was obliged to compromise with popular sentiment is the repeated recognition of divorce by mutual consent.[123]

[Footnote 117: "Si mulier discesserit a viro suo despiciens eum, nolens revertere et reconciliari vero, post v. annos cum consensu Episcopi aliam accipere licebit uxorem."--Poenit. Theod., II, xii, 19: HADDAN AND STUBBS, op. cit., III, 200. The Poenit. Merseburgense, c. 104: WASSERSCHLEBEN, op. cit., 402, seems to allow the man in such case to marry after one year: "Si mulier a viro discesserit et iterum reversa fuerit, suscipiat eam sine dote et ipsa ann. I poeniteat in p. e. a., similiter et ille, si aliam duxerit."--HINSCHIUS, Das Ehescheidungsrecht, 80; but GEFFCKEN thinks the second wife must be sent away when the first wife returns, the man doing penance: Ehescheidung, 63, 64. Cf. similar provisions in Poenit. Cummeani, c. 3, § 31, Poenit. XXXV Cap., c. 9, § 2: WASSERSCHLEBEN, op. cit., 474, 511; and Poenit. Theod., I, xiv, 13: HADDAN AND STUBBS, op. cit., III, 188.]

[Footnote 118: Poenit. Theod., II, xii, 8: HADDAN AND STUBBS, op. cit., III, 199.]

[Footnote 119: In that case, "licet aliam accipere; melius est sic facere quam fornicationes": Poenit. Theod., II, xii, 23: HADDAN AND STUBBS, op. cit., III, 200, 201; cf. THORPE, op. cit., II, 19.]

[Footnote 120: Poenit. Theod., II, xii, 17, 18: HADDAN AND STUBBS, op. cit., III, 200.]

[Footnote 121: Poenit. Theod., II, xii, 32, xiii, 5: HADDAN AND STUBBS, op. cit., III, 201, 202; cf. ESMEIN, Le mariage en droit canonique, II, 64.]

[Footnote 122: Poenit. Theod., II, xiii, 4: HADDAN AND STUBBS, op. cit., III, 202.

These provisions (notes 4 and 5) are similar to those of the synods of Verberie and Compiègne relating to error conditionis and loss of freedom. See p. 42, above; and ESMEIN, op. cit., I, 325; II, 68.]

[Footnote 123: "Legitimum conjugium non licet frangi sine consensu amborum."--Poenit. Theod., II, xii, 7: HADDAN AND STUBBS, op. cit., III, 199. Cf. Poenit. Mers., c. 123, Poenit. XXXV Cap., c. 9, § 1: WASSERSCHLEBEN, Bussordnungen, 403, 511. Sometimes in such case remarriage is forbidden: Judicium Clementis, § 15: WASSERSCHLEBEN, op. cit., 435. Cf. ESMEIN op. cit., II, 61; GEFFCKEN, op. cit., 64; GLASSON, op. cit., I, 130, who favors the view of the text; but FREISEN, op. cit., 779, 780, thinks that § 7 of Poenit. Theod. is supplemented by § 12, which forbids separation on account of infirmity or even to enter religion cum consensu ambrorum. This view may be favored by Excerptiones Ecgberti, c. 120, 121: THORPE, op. cit., II, 114, 115.]

Such laxity seems to have marked the practice of the Frankish, and probably also that of the Anglo-Saxon, church during a period of a hundred and fifty years (650-800). With the beginning of the ninth century, however, a turning-point is reached. More stringent rules are prescribed by the councils; and new penitentials are prepared under ecclesiastical authority much more in harmony with the teachings of Rome. But even now, seemingly, the clergy shrank from the attempt fully to carry out the reactionary discipline. As a result a third class of manuals for a time appeared, occupying medial ground, and better fitted to satisfy the needs of populations not yet entirely able to give up the liberty which their ancient laws secured.[124]

[Footnote 124: For an illustration see the Poenit. pseudo-Theod., c. iv (19), § 24, in WASSERSCHLEBEN, op. cit., 582. The best account of the three classes of penitentials is that of GEFFCKEN, op. cit., 62-65, which is here followed. See also ESMEIN, op. cit., II, 60; BENNECKE, Ehebruch, 54 ff.]

e) Final settlement of the Christian doctrine in the canon law.--From the age of Charles the Great the ultimate triumph of the strict ecclesiastical theory of divorce was entirely assured. But there yet remained a twofold task which it would still require centuries to accomplish. On the one hand, the discordant utterances of the Fathers, the popes, and the councils had to be harmonized or explained away; while, at the same time, the results thus gained had to be exactly formulated and wrought into the intricate system of matrimonial jurisprudence. This was the work reserved for the canonists, and especially for the two great "masters," Gratian and Peter Lombard. On the other hand, the practice of the church must be made more thoroughly to coincide with her theory. A means must be found by which the people could be constrained, so far indeed as that was ever to be realized, to accept the canon law as a guide in the affairs of actual life. This end the church was destined to win by gaining exclusive control of divorce procedure as a part of her general competence in matrimonial causes.

Under the Roman law, as also by that of the Jews, divorce was a private transaction. The intention of the person repudiating his spouse was declared orally[125] before seven witnesses. The state might, indeed, punish the crimes causing the separation or enforce the penalties for unjust action, thus incidentally passing on the legality of the divorce itself; but if the proper forms were observed, the private divorce, whether one-sided or by mutual consent, was valid, and the state gave no action either for enforcing the separation or for the restitution of conjugal life.[126]

[Footnote 125: During the empire a written form, the libellus repudii, or letter of divorce, came into use; but the delivery of the libellus was not essential to the divorce: GEFFCKEN, op. cit., 27: ap. SCHLESINGER, in Zeitschrift für Rechtsgeschichte, V (1866), 203 ff.]

[Footnote 126: GEFFCKEN, op. cit., 26, 27; ESMEIN, op. cit., II, 89.]

The same principle obtains among the German nations after the conversion. Divorce is a private act, and there is no proper divorce process in the temporal courts. Separation by free consent is usually effected merely through exchange of duplicate copies of a written agreement, or libellus repudii;[127] and if sometimes the intention of the parties must be declared before judicial authority, it does not follow that there is any examination of the grounds of action or any judgment admitting or refusing the separation. The "function of the court can have only the purpose of establishing the formal correctness of the act of self-divorce."[128] In the case of one-sided divorce the same general rule prevails. There may be judicial action; but it is an action to punish the crime of the guilty person or to enforce the penalty for unjust repudiation. "The form of one-sided divorce in the Teutonic folk-laws rests upon the same fundamental principles as that of the leges Romanae. Self-divorce is in equal degree true Roman and true German. In each case justifiable separation may be preceded by a penal action to determine the guilt of the accused. In each case, moreover, it is not the divorce which the sentence directly decrees, but its justification. It still rests with the aggrieved spouse whether he will make use of his right of separation, or whether he will allow a reconciliation to take place."[129]

[Footnote 127: The libellus was copied from the Roman model. For an example, see above p. 35, note.]

[Footnote 128: GEFFCKEN, op. cit., 47, referring to the formulae salicae Merkelianae, where the intention of the parties must be personally announced "an Gerichtsstätte vor dem Grafen und der Gerichtsgemeinde." His view, he declares, is intermediate between that of LOENING, Geschichte des deut. Kirchenrechts, II, 627 n. 1, who regards the count and judicial community as mere witnesses of the transaction (Solennitätszeugen); and that of SOHM, Trauung und Verlobung, 7, who sees here a judicial sentence.]

[Footnote 129: GEFFCKEN, op. cit., 48, 49.]

The church was ambitious to take the matter of divorce procedure entirely into her own hands; to establish a real jurisdiction which would enable her effectually to forbid separation except on the grounds which she herself approved, and to compel the restitution of married life when separation occurred for any other cause.[130] It was long before this ambition was realized. The council of Agde as early as the year 505 did indeed declare, in effect, that, besides the penal sentence of the temporal court, a recognition of the grounds of divorce by the ecclesiastical authority shall be required for a separation; and whoever puts away his wife without first satisfying these conditions shall be excommunicated.[131] To this decree, so emphatic in its demands, the origin of spiritual jurisdiction in divorce questions is commonly traced;[132] but this seems far from being the truth. The decree must rather be accepted as an early but "isolated" expression of an ideal toward which the church for ages was striving; and as such it became of more and more importance as the great doctors of the canon law found themselves in a position to give it meaning.[133]

[Footnote 130: The church sought through excommunication and her system of penance to enforce her rules regarding divorce. Her relation to the state in this regard is thus forcibly described by GEFFCKEN, op. cit., 51: "Da jedoch eine aufrichtige Busse in unserem Falle sinngemäss nur möglich ist, wenn die ungerechtfertigte Scheidung rückgängig gemacht wird, so operiert die Kirche hier mit einer lex plus quam perfecta, d. h. einem Gesetz, das die Zuwiderhandlung bestraft und gleichzeitig für nichtig erklärt, während dem weltlichen Richter nur eine lex minus quam perfecta zu Gebote steht, er also nur die Übertretung bestrafen, nicht aber den durch sie herbeigeführten Zustand redressieren kann. In dieser Sachlage ist die Erklärung der ganzen Geschichte des christlichen Ehescheidungsrechtes bis zum endgültigen Siege der kirchlichen Doktrin enthalten."]

[Footnote 131: C. 25, Council of Agde reads: "Saeculares, qui coniugale consortium nulla graviori culpa dimittunt vel etiam dimiserunt et nullas causas discidii probabiliter proponentes propterea sua matrimonia dimittunt, ut aut illicita aut aliena praesumant, si antequam apud episcopos comprovinciales discidii causas dixerint et priusquam iudicio damnentur, uxores suas abiecerint, a communione ecclesiae et sancto populi coetu pro eo, quod fidem et coniugia maculant, excludentur." Cf. GEFFCKEN, op. cit., 50; FREISEN, op. cit., 781.]

[Footnote 132: It is preferably cited by Hincmar of Rheims in his decree concerning the divorce of Lothar and Teutberge; and since Regino of Prüm it belongs to the standing armor of the canonists, until it receives its immortalization in the decree of Gratian (c. 33, qu. 2, c. 1): GEFFCKEN, op. cit., 52, note.]

[Footnote 133: GEFFCKEN, op. cit., 52. Cf. on this decree and its use by the canonists ESMEIN, op. cit., II, 89, notes.]

Even during the Carolingian era theoretically the state still maintained the old position. The judgment in a penal action neither nullified nor enforced self-divorce. In reality, however, the power of the church in this field was vastly increased at the expense of the state.[134] For the state then undertook as never before to enforce the discipline through which hitherto the church had striven in vain to realize her doctrine.[135] Backed by the state, the church thereafter had the power to compel a restitution of conjugal life when a divorce was attempted against her will--a power which the secular judge had never possessed. Accordingly, "the temporal divorce jurisdiction of the Frankish empire, so far indeed as one is justified in speaking of such a jurisdiction, was not abolished by a legislative act; but it gradually perished through the contradiction to its own laws in which the state of the Carolings involved itself when it made the unqualified support of the disciplinary jurisdiction of the church one of its cardinal principles of government."[136] Already by the beginning of the tenth century this process was practically complete.[137] In German lands the diocesan court of the bishop had become the ordinary tribunal for divorce causes; and for annulment of the uncanonical separation an exact formula, the oath of reconciliation, had been devised.[138]

[Footnote 134: "Wenn trotzdem die Zeit der Karolinger als diejenige Epoche zu bezeichnen ist, in welcher die Kirche den ihren endgültigen Sieg im Kampfe um das Ehescheidungsrecht besiegelnden Fortschritt machte, so wird dieser Fortschritt weniger auf dem Gebiete des materiellen Rechtes als auf demjenigen des Ehescheidungsverfahrens gesucht werden müssen."--GEFFCKEN, op. cit., 68.

Geffcken criticises SDRALEK, Hincmars Gutachten über die Ehescheidung des Königs Lothar II., 108 ff., who holds that the Frankish civil court has full authority to decree divorces. According to SOHM, "Die geistliche Gerichtbarkeit im fränk. Reich," ZKR., IX, 218, 242 ff., the Frankish matrimonial law is "temporal law, and receives its development through temporal custom and legislation." The canons are statutes for the spiritual and not for the temporal law; and only through the public lawgiver do they have any effect upon the legal principles governing marriage. "By virtue of public law marriage is subordinate to the state and not to the church." The spiritual law is no law for the temporal court; and in matrimonial causes the spiritual court is no court according to public law. There exists, in fact, in the Frankish empire no spiritual jurisdiction in the sense of public law. With this view GEFFCKEN, op. cit., 68 n. 3, agrees; while rejecting as inconsistent therewith Sohm's later statement in ZKR., XVII, 179, that the judgment of the temporal as well as that of the spiritual court was necessary for a divorce. Compare BOEHMER, Ehegesetze im Zeitalter Karls des Grossen, 108-16, who explains the contradictory enactments of the period as the result of the two systems of jurisprudence--the temporal and the spiritual.]

[Footnote 135: See the remarkable capitulary of Lothar I., 825. For the correction of all sins and crimes (quibuslibet culpis atque criminibus) the count is associated with the bishop. When excommunication fails to correct the offender, "a comite vinculis constringatur": quoted by GEFFCKEN, op. cit., 72; cf. ESMEIN, op. cit., I, 13, 14.]

[Footnote 136: GEFFCKEN, op. cit., 74.]

[Footnote 137: See GEFFCKEN'S argument based on the Libri duo de synodalibus causis et disciplinis ecclesiasticis of Regino, abbot of Prüm (883-915): op. cit., 77-79. In England under King Cnut the bishop already appears to have had jurisdiction in divorce cases, although not until more than a century later was the matrimonial jurisdiction of the English ecclesiastical courts fully established: POLLOCK AND MAITLAND, Hist. of Eng. Law, II, 364, 365.]

[Footnote 138: The following is the form of the iuramentum de reconciliatione coniugatorum taken by GEFFCKEN (op. cit., 79) from cc. 241, 242, of REGINO'S book: The man shall swear: "Ab isto die in antea istam tuam coniugem, nomine illam, quam iniuste dimiseras, ita tenebis, sicut per rectum maritus suam debet habere coniugem in dilectione et debita disciplina, nec eam per ullum malum ingenium a te separabis, nec ea vivente aliam accipies. Sic te Deus adiuvet." The oath of the woman runs: "A modo in antea istum tuum maritum, quem iniuste dimiseras, ita tenebis et amplexaberis, et ei in servitio, in amore et in timore ita eris subiecta et obediens, sicut per rectum uxor suo debet subiecta esse marito, nec unquam ab eo te separabis, nec illo vivente alteri viro te sociabis in coniugio aut adulterio. Sic te Deus adiuvet."]

A powerful instrument was thus provided for the development and enforcement of a complete system of divorce jurisprudence. Little by little the canonists, in tedious succession from Hincmar of Rheims to the decretalist Tancred,[139] brought order out of confusion and agreement out of contradiction. Through special pleading and violent assumption, unscrupulous twisting and suppressing of texts, earnest argument and childish allegory, the law of divorce was gradually brought into some degree of harmony with the sacramental theory of marriage.[140] The middle of the tenth century saw the task virtually accomplished at the hands of Gratian and Peter Lombard,[141] the master-builders of the canon law;[142] although their teachings are still "on the surface obscured by reminiscences" of earlier theories, and after them the Decretals show certain aberrations from the strict doctrine, like "sporadic cases after a great epidemic."[143]

[Footnote 139: See WUNDERLICH'S excellent edition of Tancredi summa de matrimonio, especially 16 ff., on the impediments, and 70 ff., on causes of separation.]

[Footnote 140: Thus, for example, Gratian accounts for the liberty of divorce and remarriage accorded in the letter of Gregory II. (confusing him with Gregory I.) by assuming that it was in consequence of a papal dispensation in favor of the English (Decret. Grat., dictum to c. 18, C. XXXII, qu. 7), although elsewhere he more sensibly rejects Gregory's action as unorthodox. Peter Lombard makes no mention of Gregory's letter and with Gratian rejects as false the passage of pseudo-Ambrose allowing separation and remarriage for adultery (ESMEIN, op. cit., II, 76); while others get out of the difficulty through the gratuitous assumption that pseudo-Ambrose refers, not to simple adultery, but to a case of incest committed by a woman with a relative of her husband, affinitas superveniens. Gratian will not accept this explanation, on the ground that, according to the theory of affinitas superveniens, husband and wife are treated alike. Yet, with delicious inconsequence, he proceeds to explain why pseudo-Ambrose had given the man alone the right to remarry in case of the wife's adultery, without granting the woman the reciprocal privilege. In the text of Ambrose, he says, the words vir and mulier are not employed in their proper sense, but figuratively. Each is used for man irrespective of sex. Vir is from virtus, and means man as a strong being resisting temptation; mulier is from mollities (softness), and it is used to denote the weak-minded man guilty of sin (Dec. Grat., dictum to c. 18, C. XXXII, qu. 7. Cf. ESMEIN, op. cit., II, 76; FREISEN, op. cit., 582, 805). Ivo of Chartres, bent on sustaining the rigid theory of indissolubility, cites cc. 5 and 9 of the decree of Verberie in its favor, deliberately suppressing the clauses allowing the man to remarry (see his Decretum, X, 169; VIII, 189; also his Panormia, VI, 91: GEFFCKEN, op. cit., 82); and Gratian, by adopting Ivo's text for c. 9 instead of the original, gets around a similar difficulty (FREISEN, op. cit., 803). Celestin III. and Urban III. allowed the faithful spouse divorce and remarriage when the other becomes an infidel or a heretic; but the later canonists evaded this authority by claiming that these popes spoke merely as "simple doctors" (ESMEIN, op. cit., II, 80).

On the wide use of "metaphor" in the history of the church see LECKY, Democracy and Liberty, II, 217; and especially his Hist. of European Morals, II, 326, 327, 356-58.]

[Footnote 141: For once at least we can almost pardon Milton for using strong language. SELDEN'S work, Of the Law of Nature and of Nations, he holds more useful than anything which "pontifical clerks have doted on, ever since that unfortunate mother famously sinned thrice, and died impenitent of her bringing into the world those two misbegotten infants, and for ever infants, Lombard and Gratian, him the compiler of canon iniquity, the other the Tubalcain of scholastic sophistry, whose over-spreading barbarism hath not only infused their own bastardy upon the fruitfullest part of human learning, not only dissipated and dejected the clear light of nature in us, and of nations, but hath tainted also the fountains of divine doctrine, and rendered the pure and solid law of God unbeneficial to us by their calumnious dunceries."--"Doctrine and Discipline of Divorce," Prose Works, III, 269.]

[Footnote 142: Cf. especially Decretum Gratiani, cc. 1-24, causa xxxii, qu. 7: RICHTER-FRIEDBERG, Corpus Juris Can., I; PETER LOMBARD, Sententiae, IV, D. xxvii ff.]

[Footnote 143: ESMEIN, op. cit., II, 79, 80. The early canonists are discussed by GEFFCKEN, op. cit., 58-62, 75-82; CIGOI, Unauflösbarkeit, 93 ff.; but for the most minute examination of them all see FREISEN, op. cit., 793-847; also the very clear account of ESMEIN, op. cit., II, 71 ff. On the formation of the canon law see TISSOT, Le mariage, 111 ff.]

Theoretically, as commonly stated, divorce proper is entirely eliminated from the mature law of the western church; but inconsistently the name "divorce" is retained as a rubric in the collections of canons; and it is used in two senses, neither of which corresponds with its ancient and proper meaning as a complete dissolution of the bond of true wedlock. First, the term divortium a vinculo matrimonii is commonly employed to designate, not the dissolution of a lawful union, but the judicial declaration of nullity of a spurious marriage which on account of some impediment is void, or at least voidable, from the beginning. Secondly, the term divortium a mensa et thoro means a judicial separation of husband and wife which does not touch the marriage tie. In each case, therefore, the use of the word "divorce" is loose and very misleading.[144]

[Footnote 144: ESMEIN, op. cit., II, 73, 85-89, who gives a brief account of the evolution of the uses of the term divortium. Originally, among the canonists, there was but one kind of divorce, i. e., any judicial separation between man and wife, whether or not with the right to remarry. This led to confusion; and so the distinction between divorce a vinculo or quoad vinculum and a mensa et toro or quoad mensam et torum was differentiated. Beginning with Bernard of Pavia, the first compiler of the Decretals, the term divortium appears regularly as a rubric in the later collections of the canon law.]

As finally settled, the canon law permits a separation from bed and board on three grounds. First is adultery. For this offense the woman as well as the man is given an action for divorce, which, however, may be defeated by pleading various exceptions, such as the like guilt of the accusing party.[145] The second cause is "spiritual adultery,"[146] being historically an enlargement of the first cause through allegorical interpretation. Originally under this head separation was allowed for various offenses;[147] but in the end it is restricted to the heresy or apostasy of one of the persons, and perhaps to the case of one spouse compelling the other to commit a wrong,[148] although on this point the authorities are by no means agreed. A third cause for which separation may be demanded is cruelty committed by one partner against the other. Whether in this case blows alone will suffice, especially as concerns the woman, is not settled by the laws; but the "dominant opinion inclines to leave the determination of this point to the discretion of the judge."[149]

[Footnote 145: For the exceptions see ESMEIN, op. cit., II, 91, 92; FREISEN, op. cit., 833-36; SCHEURL, _Das gem. deut. Eherecht_, 288, 289.]

[Footnote 146: More exactly speaking fornicatio spiritualis "as opposed to fornicatio carnalis," the first cause mentioned.]

[Footnote 147: Crimes against nature, idolatry, etc.: ESMEIN, op. cit., II, 90 n. 1.]

[Footnote 148: Such as forcing a spouse to idolatry or to some heinous crime. This case is regarded as an enlargement of the conception of fornicatio spiritualis: ESMEIN, op. cit., II, 90 n. 4, 92 nn. 8, 9. Cf. FREISEN, op. cit., 836.]

[Footnote 149: ESMEIN, op. cit., II, 93, 94. Earlier divorce a mensa et thoro was not granted on this ground unless there was real danger to the life of one of the parties; but at last it was decided that nimia saevitia would suffice, but the term is not defined: idem, loc. cit. In general on this species of divorce see FREISEN, op. cit., 830-47; GEARY, Marriage and Family Relations, 238, 239, 350; SCHEURL, Das gem. deut. Eherecht, 286-91.]

It thus appears that theological subtlety, partly under stress of the needs of actual life, has found a way to pass far beyond the limits which any reasonable interpretation of the scriptural precepts will permit. In dealing with the question of divorce a vinculo an inconsistency even greater is shown, and the results are far more disastrous; for the door is thereby opened for manifold hardships and corruption. In the first place, two exceptions to the rule that a genuine marriage cannot be dissolved are sanctioned by the law and practice of the Church. The privilegium Paulinum is thus freely admitted.[150] If the Christian convert is abandoned by his infidel spouse, he is allowed to contract a new marriage. Only by an ingenious assumption can this liberty be harmonized with the prevailing dogma. The case is no exception, we are told, for it is the infidel, not the believer, who dissolves the marriage; and the rule of the church does not apply when the unbeliever "renounces his right" to maintain that relation, in order to "make use of his own heathen law."[151] In England, where the canon law of divorce was in full force, the casus apostoli had a practical application to the advantage of the faithful in their dealings with the Jews. "In 1234 a Jewish widow was refused her dower on the ground that her husband had been converted and that she had refused to adhere to him and be converted with him. An Essex jury even doubted whether if two Jews married under the 'Lex Judaica' but afterwards turned to the 'Lex Christiana' and then had a son, that son could be legitimate;"[152] but this finding is not in harmony with the teaching of the canon law. Moreover, in modern times, with the spread of Catholic missions into many new lands, this privilege has been of increasing importance.[153]

[Footnote 150: Decret. Grat., II, caus. xviii, qu. 2, C. 2; and Decretals IV, 19, de divortiis, c. 7: see RICHTER-FRIEDBERG, Corpus juris can., I.]

[Footnote 151: This is FREISEN'S argument, op. cit., 825-27, 817 ff. See also SCHEURL, Das gem. deut. Eherecht, 276-78. The canon law maintains the validity of a marriage between two infidels contracted before conversion. According to PETER LOMBARD, the believer may, indeed, put away his unconverted consort, but may not remarry. Only when the infidel is the active party, the Christian being the passive, is the latter released from the marriage bond: Sententiae, IV., D. 39, § G; FREISEN, op. cit., 814. This privilege is much discussed in modern theological literature: see the references in FREISEN, op. cit., 826 n. 27. In general compare WOOLSEY, Divorce, 74 ff., 125; ESMEIN, op. cit., I, 220-32; II, 268 ff., 307; SCHEURL, op. cit., 276, 277.]

[Footnote 152: POLLOCK AND MAITLAND, Hist, of Eng. Law, II, 391, 392: citing for the first case TOVEY, Anglia Judaica, 84; Co. Lit., 31_b_, 32_a_; and for the second, Calend. Geneal., II, 563.]

[Footnote 153: So in India: POLLOCK AND MAITLAND, op. cit., II, 391 n. 2: citing Maine's speech on the "Remarriage of Native Converts," in Memoir and Speeches and Minutes (London, 1892), 130. Cf. especially ESMEIN, op. cit., II, 268 ff., who discusses some of the "curious problems" growing out of this rule.]

By the second exception the church found herself entangled in the subtle theory accepted after Peter Lombard that a contract de praesenti constitutes a valid marriage whether followed by actual wedded life or not.[154] The mature doctrine of the canon law, which is still obeyed by the Roman church, permits the unconsummate marriage de praesenti to be dissolved through papal dispensation or ipso facto by taking holy orders.[155] Here in effect the older theory of Gratian, that only the consummate marriage is a real marriage, is adopted for a practical end, although it is absolutely irreconcilable with the still accepted orthodox theory of Lombard, whose enforcement in the ecclesiastical courts has been the cause of so much evil in western Christendom.[156]

[Footnote 154: For the evils arising in clandestine marriage de praesenti, the complexity of the law of forbidden degrees, and the conflicting jurisdiction of the temporal and spiritual courts, see chap. viii above.]

[Footnote 155: FREISEN, op. cit., 826 ff., 212 ff., shows that the dispensatio summi pontificis a matrimonio rato nondum consummato originated with the reforms of Alexander III.; and argues rightly that these two kinds of dissolution--dispensation and orders--are in harmony with the rule of indissolubility according to the doctrine of Gratian, but not according to the existing theory. Thus, of the old eight causes which were sufficient of themselves to dissolve matrimonium initiatum--identical with the later sponsalia de praesenti--holy orders alone remains; the papal dispensation has taken the place of the other seven: ibid., 827, 829; cf. on these exceptions SCHEURL, Das gem. deut. Eherecht, 278-86.]

[Footnote 156: See chaps. vii and viii, above.]

Taking the church's own definition of marriage, it seems, after all, that divorce a vinculo did not in reality quite disappear from the canon law. It would be a serious error to imagine that the opportunity for escaping entirely from the bonds of undesirable wedlock was restricted to the contract de praesenti not followed by actual conjugal life, which in direct violation of her own theory the church was constrained to treat as an imperfect marriage. To all intents and purposes, when judged from a rational modern standpoint, the decree of nullity was a divorce proper. Practically speaking, it cannot be doubted that there existed a very wide liberty of divorce in the Middle Ages, though it existed mainly for those who were able to pay the ecclesiastical judge for finding a way through the tortuous maze of forbidden degrees.[157] In a divorce procedure masquerading under the guise of an action for nullifying spurious marriages lurked the germs of perjury and fraud. When both persons were willing to separate, the matter must have been easy enough by collusion; and when one consort was tired of the other, the ecclesiastical court for money would be able to find good reasons for effecting his release.[158] "Spouses who had quarreled began to investigate their pedigrees and were unlucky if they could discover no impedimentum dirimens" or cause which would have prevented the contraction of a valid marriage.[159] "The canons prescribing the prohibited degrees of relationship were marvels of ingenuity. Spiritual relationships, those gained in baptism, were recognized no less than natural relationships, and equally with them served as barriers to legal marriage. Marriage was prohibited within seven[160] degrees of relationship and affinity; and none but the astutest students of the law were able to unravel so complicated a system. The annulling of marriages, which had been contracted within the prohibited degrees, became a flourishing business of the Church. No exercise of its power yielded more money, or caused more scandal. So tangled was the casuistry respecting marriage, at the beginning of the sixteenth century, that it might be said that, for a sufficient consideration, a canonical flaw could be found in almost any marriage."[161]

[Footnote 157: JEAFFRESON, Brides and Bridals, II, 299 ff., conjectures that during the Middle Ages there must have been many irregular self-divorces; and he cites the famous case of William Paynel and Margaret his wife who, in 1302, "petitioned the king for the dower that was due to her as widow of her first husband John de Camoys," who with her consent had "openly and before witnesses 'given, granted, released, and quit-claimed' the said Margaret to 'her chivalric knight,'" the said William. The court refused the dower on the ground of desertion and adultery. Cf. on this case POLLOCK AND MAITLAND, Hist. of Eng. Law, II, 393, 394.]

[Footnote 158: JEAFFRESON, op. cit., II, 306-9.]

[Footnote 159: POLLOCK AND MAITLAND, op. cit., II, 391 n. 1. Read the interesting remarks of LECKY, Democracy and Liberty, II, 193-96, who cites, as illustrative of the policy of the Roman church, the divorce case of Napoleon and Josephine. See also _Law Review_ (English), I, 353-56.]

[Footnote 160: Before Innocent III., 1215, who reduced the number to four: WOOLSEY, Divorce, 121.]

[Footnote 161: THWING, The Family, 83. Cf. WOOLSEY, op. cit., 118 ff.]

The marvelous resources of the church in the binding and unbinding of wedlock are strikingly exhibited in the matrimonial adventures of Margaret Tudor, daughter of Henry VII. To enable her to marry King James IV. of Scotland a papal dispensation was requisite, as they were related within the fourth degree. After he was slain at the battle of Flodden (1513), Margaret espoused Archibald Douglas, sixth earl of Angus; and from him in 1527 she obtained by papal authority a divorce "on the desperate plea first brought forward in 1525, that James IV. had lived for three years after Flodden," and so was alive at the time of her second nuptials.[162] Her next experiment in the spiritual courts was less successful. In vain she tried to rid herself of her third consort, Henry Stuart, on the pretext that her previous cohabitation with her husband's fourth cousin, the earl of Angus, had created a bar to their marriage through affinity.[163]

[Footnote 162: It is interesting to find Wolsey writing in Henry VIII.'s name "to remind her of the 'divine ordinance of inseparable matrimony first instituted in paradise,' protesting against 'the shameless sentence sent from Rome'": TAIT, in Dict. of Nat. Biog., XXXVI, 155.]

[Footnote 163: Henry Stuart (Stewart) was made Lord Methven by Margaret's son, James V. She "attempted to get rid of that nobleman by a sentence of the ecclesiastical court, on the ground that before the marriage she had been (as the record expresses it) carnaliter cognita by her husband's fourth cousin, the earl of Angus."--RIDDELL, Scots' Peerage Law, 187; Law Review, I, 354. On Margaret's marriages and divorces compare THWING, The Family, 83; WOOLSEY, Divorce, 169, who says she "got from Rome a separation from her second husband, the Earl of Angus, on the pretext of a pre-contract between him and another lady;" and especially the very accurate account of TAIT, in Dict. of Nat. Biog., XXXVI, 150-57.]

Long before this, in the days of Edward II., a satirist describes the "prodigious traffic" in divorces. Any husband having "selver among the clerkes to send" could rid himself of his wife by "bringing her to the constery" or consistory court, with two false witnesses to support his declarations.[164] A case is mentioned by Coke "in which a marriage was pronounced null because the husband had stood god-father to the cousin of his wife."[165] Before the Reformation the voidance of alleged false wedlock on the ground of pre-contract or forbidden degrees of affinity, spiritual relationship, consanguinity, or on some other canonical pretext, had become an intolerable scandal. "Marriages have been brought into such an uncertainty thereby," complains a statute of Henry VIII., "that no marriage could be so surely knit or bounden but it should lie in either of the parties' power ... to prove a pre-contract, a kindred and alliance, or a carnal knowledge to defeat the same."[166]

[Footnote 164: JEAFFRESON, Brides and Bridals, II, 310, who quotes the following verses entitled "A Poem on the Times of Edward II." from the Percy Society Publication:

"If a man have a wyf, And he love her nowt, Bring her to the constery, There trewth schuld be wrowt. Bring twei fals wytnes with hym, And hymself the thrydde, And he shall be deperted, As fair as he wold bydde, From his wyf; He schal be maynteyned fulle well To lede a sory lyf.

"When he is deperted From hys trew spowse, Take hys neyghboures wyf And bryng her to howse, Yif he have selver Among the clerkes to send, He may have hir to hys wyf To hys life's end, With onskylle, Thei that so fair with falseness dele Godde's corse on her bille." ]

[Footnote 165: LECKY, Democracy and Liberty, II, 194. For other examples see HUTH, Marriage of Near Kin, 118-20.]

[Footnote 166: 32 H. VIII., c. 38: Statutes at Large (London, 1763), II, 298.

The facility with which dispensations could be secured is illustrated by a Scotch case in 1426-28. On April 11, 1426, Pope Martin V. granted a dispensation to Alexander of Hume and Marion of Lander to marry, though of double fourth degree of consanguinity. Curiously enough, perhaps because this dispensation had not yet been received, on Oct. 6, 1427, Hume appeared before the rector sitting as judge and proposed that his marriage could not stand of right because of consanguinity. The marriage was therefore pronounced null and void, and the parties were given license to marry whom they pleased. On the fourth day of the following January Hume and his former wife presented a petition to the papal see, announcing that, aware of their consanguinity, they had contracted marriage per verba de praesenti and begotten children; that when their ordinary heard of the consanguinity he rightly celebrated a divorce, which they obeyed; but they feared scandal, and for this and other reasons they desired to be joined in marriage. The pope therefore granted another dispensation and declared their offspring legitimate: Hist. Manuscripts Commission, XII. Report, App. VIII, 122, 123. In another case, 1459, the earl of Rothes declares on oath that he had within the last year obtained certain knowledge of the impediment of consanguinity as set forth in his libel, and that formerly, for the space of thirteen years after birth of the last of his living children, he was altogether ignorant of it: ibid., IV. Report, 507.]

Nevertheless, the Council of Trent introduced no essential change in the divorce law of the Catholic church.[167] A vain attempt was made to remedy the evils arising in the confusion of terms.[168] Anathema was pronounced against those who should deny the indissolubility of wedlock as a necessary consequence of its sacramental nature; and a like curse was fulminated against any who shall dare to say that the church errs in allowing divorce quoad torum et cohabitationem, temporarily or perpetually, for any cause besides unfaithfulness.[169] But neither at the council nor since has there ever been made any essential change in the law relating to the papal power of dispensation.[170]

[Footnote 167: In general see CIGOI, Unauflösbarkeit, 149 ff.; PERRONE, De mat. christ., III, 376 ff., 389 ff., 398 ff.; GODOLPHIN, Repartorium canonicum, 61, 62, 492-512; ESMEIN, Le mariage en droit canonique, II, 295 ff., 308 ff.; SCHULTE, Lehrbuch, 359-61; LECKY, Democracy and Liberty, II, 193, 196, 197; GLASSON, Le mariage civil et le divorce, 216, 217; SCHEURL, Das gem. deut. Eherecht, 275, 276, where the canons adopted at the twenty-fourth session are given.]

[Footnote 168: By the bishop of Barcelona, who proposed the word separatio for divorce quoad torum: ESMEIN, op. cit., II, 309. On the misleading names for the two kinds of separation see POLLOCK AND MAITLAND, Hist. of Eng. Law, II, 392 n. 5. However, a "modern distinction of some Catholic writers between anullatio and separatio removes all ambiguity."--WOOLSEY, Divorce, 124.]

[Footnote 169: "viii. Si quis dixerit ... vel Ecclesiam errare, dum ob alias causas, praeter adulterium, facit divortium quoad thorum seu cohabitationem, ad tempus vel perpetuo: anathema sit."--THEINER, Acta, II, 313: ESMEIN, op. cit., II, 309 n. 1.]

[Footnote 170: Distinction is made between dispensatio super matrimonio, that is, for dissolving an unconsummate marriage; and dispensatio matrimonialis, that is, to remove an impediment which otherwise would invalidate a proposed contract. In all cases of dispensation careful judicial inquiry as to the grounds of application is made: GEARY, Marriage and Family Relations, 510-14. Cf. WOOLSEY, op. cit., 122, 123; and especially the convenient manual of POMPEN, De dispensationibus, 122-68. For a full discussion of the intricate law and custom as to dispensation see ESMEIN, op. cit., II, 315-68; FREISEN, Geschichte des can. Eherechts, 891-906; SCHEURL, Das gem. deut. Eherecht, 281 ff. In the oriental church dispensation from the forbidden degrees is in general not allowed, ZHISHMAN: Das Eherecht der orient. Kirche, 709-17.]

II. THE PROTESTANT DOCTRINE OF DIVORCE

a) Opinions of Luther and the continental reformers.--With the rejection of the sacramental theory of marriage at the Reformation it was inevitable that more liberal ideas respecting divorce should arise. The mother-church was accused of fostering vice by professing a doctrine too severe;[171] while at the same time she was bitterly reproached with a scandalous abuse of her own jurisdiction through which in effect the forbidden degrees had become an open door to divorce for the use of the rich and powerful. Accordingly, the leaders of Protestantism took intermediate ground. On the one hand, while Luther and some other reformers sanctioned temporary separations[172] of husband and wife, there was a strong tendency to reject entirely perpetual divorce a mensa et thoro as being a "relatively modern invention" unknown to the ancient church; and a condition of life incompatible with the true ideal of wedlock.[173] On the other hand, they generally favored complete divorce a vinculo, admitting two or more grounds according as they interpreted strictly or more liberally the scriptural texts. For they still appealed to authority rather than to reason and experience in their attempts to solve a great social problem. They were thus often sorely embarrassed. Their writings, indeed, reveal not a little of the casuistry and self-deception which so often vitiate the reasoning of the canonists and their predecessors.[174]

[Footnote 171: The writings of Luther, Milton, and other Reformation and Puritan writers abound in examples of such charges. "For no cause, honest or necessary," says MARTIN BUCER, "will they permit a final divorce: in the meanwhile, whoredoms and adulteries, and worse things than these, not only tolerating in themselves and others, but cherishing and throwing men headlong into these evils. For although they also disjoin married persons from board and bed, that is, from all conjugal society and communion, and this not only for adultery, but for ill usage, and matrimonial duties denied; yet they forbid those thus parted to join in wedlock with others: but, as I said before, any dishonest associating they permit."--"The Judgment of Martin Bucer," in MILTON'S Prose Works, III, 292.]

[Footnote 172: GOESCHEN, Doctrina de mat., 60; also MEJER, "Zur Geschichte des ält. prot. Eherechts," in ZKR., XVI, 47; HUBRICH, Das Recht der Ehescheidung, 139 ff.]

[Footnote 173: Cf. ESMEIN, Le mariage en droit canonique, II, 308, 309. Throughout his Doctrine and Discipline of Divorce, as elsewhere in his writings, MILTON insists that a real marriage implies a full spiritual as well as conjugal companionship, with which the theory of separation without dissolution is inconsistent; and this is the common Puritan view.]

[Footnote 174: For example, see MILTON'S specious argument, following the allegorical method of some of the early theologians, to show the scope of the term "fornication" as used by Jesus and Moses: "Doctrine and Discipline of Divorce," Prose Works, III, 251-58, 394-401.]

From the outset the continental reformers took a bold stand;[175] for the Protestant doctrine of divorce, like the Protestant conception of the form and nature of marriage, was shaped mainly by the thought of Martin Luther. Yet revolutionary as were his teachings, he did not go so far in his departure from the orthodox rule as did some of his contemporaries and successors. The analysis of Richter has disclosed two distinct tendencies in the doctrine and practice of the Reformation period.[176] In the sixteenth century the more rigid or conservative direction is taken by Luther and the more influential Protestant leaders, among whom are the theologians Brenz, Bugenhagen, Chemnitz, Calvin, and Beza, with the jurists Kling, Beust, and Schneidewin.[177] All are agreed that absolute divorce should be granted for adultery, although some of them, like Chemnitz, appear to discriminate against the woman in this regard.[178] Malicious desertion is also generally admitted as a second cause for the full dissolution of wedlock, following the same Bible text which gave rise to the casus apostoli of the canonists.[179] It is characteristic of Luther and the representatives of the more rigid tendency that, rather than multiply the number of admissible grounds of divorce, an effort was made by hard logic to broaden the definition of desertion so as to give to it a wide range without seeming to transgress the letter of scriptural authority.[180] In this way, for instance, saevitia, or cruelty, was included, as was also refusal of conjugal duty, eventually giving rise to the doctrine of "quasi-desertion." But for this last cause a marriage must not be dissolved except on failure of all prescribed means, however cruel, to induce reconciliation or submission. For it was a natural result of the carnal theory of wedlock that theological dogma and church ordinance alike in effect permitted a brutal husband, through the aid of fine, exile, or imprisonment, to force an unwilling wife to render him her "conjugal duty."[181]

[Footnote 175: See MILTON'S summary of their views: "Tetrachordon," loc. cit., 423-33.]

[Footnote 176: RICHTER, Beiträge zur Gesch. des Ehescheidungsrechts in der evang. Kirche, 11 ff., 15 ff., 56 ff.; idem, Kirchenrecht, 1177.]

[Footnote 177: Adultery and desertion are the only grounds of full divorce recognized by BRENZ, Wie yn Ehesachen ... zu Handeln, in SARCERIUS, Vom heil. Ehestande, 152-57, and idem, Corpus juris mat., 183 ff.; with which may be compared the passages from the writings of BRENZ quoted by RICHTER, Beiträge, 19-23; BUGENHAGEN, Vom Ehebruch und Weglauffen: in SARCERIUS, Vom heil. Ehestande, 138-51; or Corpus juris mat., 171-84; CHEMNITZ, Examen conc. trid., II, 430; Calvin, in RICHTER, op. cit., 25, 26; BEZA, Tract. de repud. et divort. (Geneva, 1569), 228 ff., 275 ff.; KLING, Tract. mat. causarum (Frankfort, 1577), 89 ff.; BEUST, Tract. de jure connub.; idem, Tract. de spons. et mat., 147 ff.; SCHNEIDEWIN, Com. in inst.; idem, De nupt., lib. primi com. (Jena, 1585), §§ 7 ff.

These and other writers are discussed by RICHTER, Kirchenrecht, 1175 ff.; idem, Beiträge, 15 ff.; MEJER, _Zum Kirchenrechte der Reformat._, 147 ff.; HAUBER, Ehescheid. im Reformat., II, 209 ff. In general, compare GREVE, Ehescheidung, 225 ff.; POPP, Ehescheidung, 80 ff.; STRIPPELMANN, Das Ehescheidungsrecht, 54 ff., 128 ff.; STÖLZEL, Ehescheidungsrecht, 9 ff.; GLASSON, Le mar. civ. et le divorce, 224, 225, 329, 330; SCHEURL, Das gem. deut. Eherecht, 291 ff.; BUCHKA, _Das meckl. Ehescheidungsrecht_, 20 ff.; HUBRICH, _Das Recht der Ehescheidung_, 43 ff.; FRIEDBERG, Lehrbuch, 366-78; idem, "Beiträge," ZKR., VII, 56-127; and SCHULTE, Lehrbuch, 414-28.]

[Footnote 178: CHEMNITZ, Examen conc. trid. (Frankfort, 1615), II, 430 says: "We have, then, two cases in Scripture where the bond of matrimony is dissolved--not as by men, but by God himself. 1. On account of adultery a man lawfully, rightfully, and without sin, can repudiate his wife." 2. Desertion of the believer by the unbeliever, according to 1 Cor., 7. Cf. WOOLSEY, Divorce, 131; RICHTER, Beiträge, 27, 28. On the adoption of these two general causes at the Reformation see HUBRICH, Das Recht der Ehescheidung, 44 ff.]

[Footnote 179: 1 Cor. 7:15.]

[Footnote 180: As early as 1520 in his Von dem bab. Gefängniss der Kirche (STRAMPFF, 349, 350, 381, 382) LUTHER admits the two grounds of divorce, adultery and desertion; the latter when either spouse abandons the other "über zehen Jahr oder nimmer wiederkommen." Two years later, in his Vom ehelichen Leben, he appears to regard refusal of conjugal duty as equivalent to desertion. "We may find an obstinate woman," he says, "who stiffens her neck, and if her husband should fall ten times into unchastity, cares nothing about it. Here it is time for a man to say, 'if you won't, another can be found that will. If the wife will not, let the maid come.' Yet let it be so that the husband give her two or three warnings beforehand, and let the matter come before other people, so that her obstinacy may be known and rebuked before the congregation. If she will not, let her be gone, and procure an Esther for yourself and let Vashti be off, as Ahasuerus did."--As rendered by WOOLSEY, Divorce, 130, 131. For the original see STRAMPFF, 350, 351, 394, 395; LUTHER'S Kleinere Schriften, II, 26-31; and SARCERIUS, Vom heil. Ehestande, 137, 138. Cf. RICHTER, Beiträge, 16; SCHEURL, Das gem. deut. Eherecht, 300 ff. In LUTHER'S Von Ehesachen (1530) the refusal of conjugal duty is not mentioned; but it is doubtless included under malicious desertion; and besides in 1531 he commends the book of Brenz in which this position is taken. Cf. RICHTER, op. cit., 18, 19; STRAMPFF, 394. In the Tischreden flight on account of theft is regarded as desertion: RICHTER, loc. cit. On the use made of "definition" by the Protestants see HUBRICH, Das Recht der Ehescheidung, 51.]

[Footnote 181: Quasi malitiosa desertio comprehends not only refusal of conjugal duty, but also applies to the case of a defendant who abandoned a consort, but who does not necessarily, as in malicious desertion, remain in a place unknown or one beyond the reach of judicial process: STRIPPELMANN, Ehescheidungsrecht, 146 ff. Cf. DIETRICH, Evang. Ehescheidungsrecht, 25 ff.; HUBRICH, Das Recht der Ehescheidung, 80, 88 ff. See especially LUTHER, Vom ehel. Leben; STRAMPFF, 394, 395, who says the "weltliche Ubirkeit das Weib zwingen oder umbbringen" soll.]

Only two general causes of full divorce on alleged scriptural authority were thus admitted by Luther and his immediate followers. Other offenses, except as by logical fiction brought under the definition of desertion or adultery, were merely accepted as grounds of temporary separation from bed and board, subject to reconciliation.[182] On the other hand, the representatives of the more liberal tendency anticipated in many ways modern ideas as to the grounds of absolute dissolution of the marriage bond. Avoiding to some extent the indirect method of attaining practical ends by juggling with definitions, they were inclined to appeal for authority directly to Roman imperial legislation; and so, "since the other direction is connected with the canon law, we have here a phase of the struggle" between that system and the Roman jurisprudence.[183] The first step in the liberal direction is taken by Erasmus, who sustains a rational method of dealing with the divorce problem through appeal to the teachings of the early Fathers, notably those of Origen; and this brought him in contact with the principles of the old Roman law.[184] His influence, as Richter strongly urges, seems to have been felt by Zwingli, who, with his disciple Bullinger, argues that in admitting adultery as a cause of divorce the Scriptures sanction as such all equal or graver offenses.[185] Accordingly, in the Zurich marriage ordinance of 1525, "adultery, malicious desertion, and plotting against the life of a consort are not regarded as the only causes, but rather as the standard causes of divorce, and to the judge it is left to decide what others shall be put by their side. And not only this, but cruelty, madness, leprosy, are mentioned as causes which the judge can take into account."[186] Lambert of Avignon is likewise conspicuous for liberal ideas regarding the causes of divorce. Anticipating the principle so often enforced by modern legislation, he holds that when a wife is forced by intolerable suffering to leave the husband who mistreats her and denies her proper support, this should be counted as repudiation by the man, and not as desertion by the woman, who should therefore be allowed to contract another marriage.[187] Similar views are held by Bucer,[188] Melanchthon,[189] and the jurist Monner.[190] All accept the two general causes, and each admits several other grounds.

[Footnote 182: Luther does not allow absolute divorce on account of anger or incompatibility, insidiae, or attempts upon life, exile, sickness, incurable disease, misfortune to an innocent spouse, or similar grounds: see his Von Ehesachen, in STRAMPFF, 398, 399; Vom ehel. Leben: ibid., 400; Predigt von dem Ehestande (1525): ibid., 400; and Auslegung des 17. Cap. 1 Cor. (1523): ibid., 397, 398, where only temporary separation is allowed, unless one of the parties refuses reconciliation and the other "kunnt nicht halten;" but in this case the "separation has the refusal of conjugal duty as a consequence, or it has become malicious desertion": STRAMPFF, 396, 351, 352, 382 ff. Cf. BRENZ, Wie yn Ehesachen ... zu Handeln: in SARCERIUS, Vom heil. Ehestande, 155 ff.; DIETRICH, Evang. Ehescheidungsrecht, 31 ff.; HAUBER, Ehescheid. im Reformat., II, 242 ff.]

[Footnote 183: RICHTER, Beiträge, 14, who points out that, through reaction against the papal system the theologians for the most part were in favor of the Roman law, while the majority of the jurists were opposed to it. The Protestant leaders are thus divided on the question whether the canon law should be accepted as binding: HUBRICH, Das Recht der Ehescheidung, 45. On the admission of other grounds of divorce see STRIPPELMANN, Ehescheidungsrecht, 151 ff.; SCHULTE, Lehrbuch, 416.]

[Footnote 184: ERASMUS, Annot. in Nov. Test. (Basel, 1515); quoted by RICHTER, Beiträge, 8-10.]

[Footnote 185: RICHTER, op. cit., 6 ff.; BULLINGER, Der christ. Ehestand (ed. 1579), lf. 102.]

[Footnote 186: WOOLSEY, Divorce, 132; also THWING, _The Family_, 84. For the ordinance see RICHTER, op. cit., 6, 7. Similar causes are approved by BULLINGER, Der christ. Ehestand, 102, appealing to the laws of the "holy Constantine, Theodosius, Valentinian, Anastasius, and Justinian."]

[Footnote 187: LAMBERT OF AVIGNON, De sacro conjugio (Strassburg, 1524): cited by RICHTER, op. cit., 31, 32.]

[Footnote 188: See his De regno Christi (1557), II, 25 ff.; and the elaborate dissertation entitled Etlicher gelerten Theologi bedencken von der Ehescheidung: in SARCERIUS, Vom heil. Ehestande, 161 ff.; also ibid., Corpus juris mat., 196 ff., which RICHTER, op. cit., 34 ff., ascribes to Bucer; though MEJER, Zum Kirchenrecht, 183, doubts the correctness of this view. On Bucer's doctrines see the discussion of Milton below.]

[Footnote 189: MELANCHTHON, "De conjugio," Opera Omnia (Erlangen, 1828), I, pars II, 236 ff.; or in SARCERIUS, Vom heil. Ehestande, 159 ff.; or ibid., Corpus juris mat., 190 ff. Cf. also RICHTER, Beiträge, 32-34; and especially MEJER, Zum Kirchenrecht, 179-82, who compares the view of Melanchthon with that of Luther, showing that the former goes back to the Theodosian code.]

[Footnote 190: MONNER, Tract. de mat. et clandes. conjugiis (Jena, 1561): ap. RICHTER, Beiträge, 40, 41. Representatives of the more liberal tendency in the sixteenth century are Chyträus, Hunnius, Wigand, Osiander, and the Danish theologian Hemming: RICHTER, op. cit., 42, 43, 28.]

With no exception in case of divorce, the continental reformers appear to sanction the remarriage of the innocent man or woman without any delay or other condition.[191] The earliest church ordinances confer the same privilege;[192] but regarding the question whether an adulterous spouse should be suffered to contract further wedlock the Protestant leaders are not agreed. The majority would have the magistrate deal with the offender according to the harsh principle of the Jewish law. Such is the view of Bugenhagen, who opens his discussion with the curt remark that were the adulterer hanged there would be small need of further parley.[193] Lambert of Avignon insists that the culprit ought to be stoned, warning the sluggish magistrates that they themselves perish even because they do not administer this punishment.[194] Beust, on the contrary, prides himself that in the land of the Saxons there is no flinching in this regard, and so the divorce question in that country is solved. Beza and Brenz are both eager for the death penalty.[195] Melanchthon appears to favor the same treatment, or else exile of the guilty spouse in case the political magistrate is unwilling to proceed with such rigor; for he says the "condemned is as one dead" to his innocent spouse.[196] Similar is the position of Luther, who "insists with great energy that death ought to be the penalty for adultery, but since the civil rulers are slack and indulgent in this respect, he would permit the criminal, if he must live, to go away to some remote place and there marry again. So Calvin, in several places, declares that death ought to be inflicted for this crime, as it was by the Mosaic code, but if the law of the territory stop short of this righteous penalty, the smallest evil is to grant liberty of remarriage in such cases."[197]

[Footnote 191: Of course, after regular process was somewhat developed, as will presently be shown, the toleramus or permission of the magistrate concluding the decree was requisite to the remarriage even of the innocent person.]

[Footnote 192: The Renovatio ecc. Nord. (1525): RICHTER, Kirchenordnungen, I, 20, tolerates the second marriage of a person whose spouse has committed adultery. The Prussian Landesordnung of the same year expressly sanctions the divorce and remarriage of the injured spouse whose partner has committed the same offense: RICHTER, op. cit., I, 32. In 1531 the church ordinance of Goslar and that of Lübeck, drafted by Bugenhagen, recognize malicious desertion as a second ground for dissolving wedlock: RICHTER, op. cit., I, 156, 148; and a similar provision appears in the Pommer ordinance of 1535, also drafted by Bugenhagen: RICHTER, op. cit., 250. Compare SCHULTE, Lehrbuch, 414-28, who gives an account of the provisions of the many ordinances regarding divorce and remarriage.]

[Footnote 193: "Wenn der Ehebruch bey dem halse gestraffet würde, so bedürffte man hie nicht viel fragens": BUGENHAGEN, Vom Ehebruch und Weglauffen: in SARCERIUS, Vom heil. Ehestande, 138.]

[Footnote 194: RICHTER, op. cit., 31, 45; citing LAMBERT OF AVIGNON, De sacra conjugio, who recommends excommunication in case the magistrate does not execute the criminal.]

[Footnote 195: On Beust, Beza, and Brenz see RICHTER, op. cit., 45, 46. Compare BEUST, Tract. de spons. et mat., 140, where he declares that the penalty for adultery is death; and BRENZ, Wie yn Ehesachen ... zu Handeln: in SARCERIUS, Vom heil. Ehestande, 152, where he leaves the offender to the temporal magistrate, urging rigorous punishment; and in cases of negligence advising excommunication by the parish priest.]

[Footnote 196: MELANCHTHON, "De conjugio," Opera Omnia, I, pars II, 238: "Respondeo: magistratus politicus adulteria punire debet: ideo persona condemnata, si non punitur durius, pellenda est ex iis locis, ubi vivit persona innocens: cui altera, videlicet condemnata, velut mortua existimanda est; et haec severitas ad politicum magistratum pertinet."]

[Footnote 197: WOOLSEY, Divorce, 138, 139. See Luther, Vom ehel. Leben: in STRAMPFF, 363, 364; or in SARCERIUS, op. cit., 137. On Calvin see STRIPPELMANN, Ehescheidungsrecht, 69, 70. The same view is expressed by HOOPER, Early Writings, 383; and by Bucer: MILTON'S Prose Works, III, 299.]

Thus far we have dealt with doctrine and opinion as disclosed by the legal and theological writings of the century of Luther. The legislation of this period reveals a like difference of view regarding the grounds of divorce and the privilege of remarriage; although the majority of the church ordinances contained in the collection of Richter appear to follow the more rigid direction.[198] Usually the two general causes, adultery and desertion, are allowed; but in a few instances only the first-named ground is admitted.[199] On the other hand, as Goeschen has pointed out,[200] the number of causes is sometimes increased, either by adding new grounds,[201] by appeal to common imperial law,[202] or by leaving the decision to the judge's discretion.[203] Furthermore, during the seventeenth century, under influence of such writers as Bidembach and Mentzer,[204] divorce legislation follows the conservative lines laid down in the Würtemberg ordinances of 1534 and 1553.[205] The beginning of a new and more liberal treatment of the subject is first seen in the Würtemberg ordinance of 1687, which, besides adultery, desertion, and quasi-desertion, sanctions several other grounds of absolute divorce.[206] This change in the tone of the law-maker is mainly due to the rise of more generous doctrinal views, especially those of Hülsemann, who taught that marriage is dissolved by every offense which, like adultery and desertion, destroys the physical unity of the wedded pair or violates the conjugal troth constituting the safeguard of that unity.[207]

[Footnote 198: RICHTER, Die evangelischen Kirchenordnungen des sechszehnten Jahrhunderts.

In many Protestant lands these ecclesiastical statutes or provisions, with the sanction of the civil authority, took the place of the old canon law. For a discussion of their contents see especially the monographs of GOESCHEN, Doctrina de mat., 59 ff.; idem, in HERZOG'S Encyclopädie, III, 702 ff.; DIETRICH, Evang. Ehescheidungsrecht; and compare HAUBER, Ehescheid. im Reformat., II, 219 ff.; RICHTER, Beiträge, 51 ff.; idem, Kirchenrecht, 1177, 1178; STRIPPELMANN, Das Ehescheidungsrecht, 78 ff.; GREVE, Ehescheidung, 298 ff.; THWING, The Family, 84, 85; WOOLSEY, Divorce, 136-38.]

[Footnote 199: For example, by the Renovatio ecc. nord. (1525): RICHTER, Kirchenordnungen, I, 20; the Würtemberg ordinance of 1537: ibid., I, 280; the ordinance of the "Niederländer in London": ibid., II, 115; that of the foreign "Gemeinde zu Frankfurt": ibid., 157.]

[Footnote 200: GOESCHEN, Doctrina de mat., 61, 62, notes.]

[Footnote 201: As by the Prussian ordinance of 1584: RICHTER, op. cit., II, 468.]

[Footnote 202: As by the Brandenburg ordinance of 1540: ibid., I, 330; that of Pfalz-Neuburg: ibid., II, 146, 147.]

[Footnote 203: As by the ordinance of Zurich, 1529: ibid., I, 22; that of Basel, 1529: ibid., 126. Cf. GOESCHEN, Doctrina de mat., 63 n. 218, 29 n. 105.]

[Footnote 204: BIDEMBACH, De causis mat. (Frankfort, 1608), 81-93; and MENTZER, De conjugio (Wittebergae, 1612), 190 ff., allow as causes only adultery and desertion. Other representatives of the conservative tendency in the seventeenth century, as enumerated by RICHTER, Beiträge, 58 ff., are the theologians Gerhard, Havemann, Calovius, and Hollaz, and the jurists Cypräus, Carpzov, Nicolai, Brunnemann, and Schilter; while the more liberal direction is taken by the theologians Brochmand, Hülsemann, Calixtus (J. U.), Dannhauer, and Quenstedt, and the jurists Henning Arnisaeus, Forster, Kitzel, Pufendorf, Samuel Stryk, and Bruckner.]

[Footnote 205: For the ordinance of 1553, drafted by Brenz, see RICHTER, Kirchenordnungen, II, 130. By this act full divorce is allowed only for adultery and desertion, including refusal of marital duty: and separation a thoro et mensa is not permitted even for saevitia. Cf. RICHTER, Beiträge, 57.]

[Footnote 206: See Des Herzogthums Wirtemberg erneuerte Ehe- und Ehe-Gerichts-Ordnung (Stuttgart, 1687), 22 ff., 82 ff., 100-111.]

[Footnote 207: HÜLSEMANN, Extensio breviarii theologici (3d ed., Leipzig, 1655), 502: cited by HUBRICH, Das Recht der Ehescheidung, 54-56, 119 ff.; RICHTER, Beiträge, 57, 63; idem, Kirchenrecht, 1177.]

The acceptance of Luther's teaching that marriage is not a sacrament, but a "worldly thing," led at once to the rejection of the jurisdiction of the existing ecclesiastical courts. A dual problem thus arose for solution: Is marriage dissolved ipso facto through the commission of the offenses recognized as grounds of divorce; or, if any intervention of public authority is requisite, what is that authority, and what is its exact function? The researches of Stölzel have clearly established that in the beginning the reformers returned to the principle of self-divorce prevailing among the ancient Romans and Hebrews, and accepted by some of the early church councils. According to the modern conception, he declares, a marriage may normally be dissolved during the lifetime of the parties by the sentence of a judge in a legally constituted court after due process of law. Only in exceptional cases is a resort to a political magistrate allowed. The judicial decree is the medium of the dissolution; and it implies, without express permission, the right of each of the divorced persons to remarry, unless the statute has otherwise provided. The divorce law of the Reformation starts from a different, almost an opposite, conception. When an adequate cause exists, a marriage is thereby dissolved in favor of the innocent person without any magisterial authority whatsoever. If in certain cases, in order to establish the existence of the grounds of dissolution, any action is needful, it is regarded as extra-judicial; and when gradually such informal proceedings have grown into an orderly process dealing directly with the question of divorce, this process concludes with a decree; not that the marriage is thereby dissolved, but that it has already been dissolved in consequence of the grounds now established. Nor did the divorce of itself involve the right of remarriage. That privilege was always in practice, if not in theory, denied to the guilty spouse; and after a regular process arose it was usual, even as late as the eighteenth century, to grant it to the innocent person only by special magisterial permission or "toleramus."[208] From the beginning in some German lands the only purpose of the judicial action was to determine the fact that the marriage was already dissolved in order to justify this license.[209] Luther and other Protestant leaders accepted the theory just explained that a marriage is "broken" or dissolved when a proper cause intervenes; and if without exception[210] they insisted that the married persons should not separate themselves, but appeal to public authority, they had in mind, as Luther plainly shows, the establishment of the fact of wedlock already broken in order, where it was desired, to grant the permission of marrying again.[211]

[Footnote 208: STÖLZEL, _Ueber das landesherrl. Ehescheidungsrecht_, 9-19; or the same in ZKR., XVIII, 1-4; DIETRICH, Evang. Ehescheidungsrecht, 39.]

[Footnote 209: STÖLZEL, op. cit., 10, 11.]

[Footnote 210: SCHULTE, Lehrbuch, 416.]

[Footnote 211: STÖLZEL, op. cit., 11-19, where the proof is given from the writings of Luther and others; and DIETRICH, Evang. Ehescheidungsrecht, 37 ff. See STRAMPFF, 363-65, 353, 375.]

The seeds from which would eventually spring a new public jurisdiction in matrimonial causes were nevertheless in this way planted by Luther. For a time the practice was uncertain and informal. Cases were taken before various officials or bodies, with the prince or sovereign as final authority. The Pfarrer or parish priest, who is especially commended by Luther[212] for such business, was often called in; and on hard questions opinions were solicited from jurists and theologians, those of Luther having all the weight of the decisions of a court of last resort. As a result, during this early period jurisdiction came more and more into the hands of the church. Only gradually, following the example of Wittenberg in 1539, were consistorial courts[213] created under sanction of the civil power; and these bodies were composed of both lay and ecclesiastical members.[214]

[Footnote 212: LUTHER, Von Ehesachen: in STRAMPFF, 297, 298, 392, where he names Pfarrer and Oberkeit as co-ordinate authorities in such causes. On the significance of Oberkeit (temporal magistracy) see STÖLZEL, Entwicklung des gelehrten Richterthums, I, 207 ff.; and compare idem, Ueber das landesherrl. Ehescheidungsrecht, 22, 23.]

[Footnote 213: On the rise of the Wittenberg consistory and its influence as a model for others see MEJER, "Anfänge des Witt. Consistoriums," ZKR., XIII, 28-123; and idem, "Zur Geschichte des ält. prot. Eherechts," ibid., XVI, 35-106. These two papers, revised and enlarged, with a chapter on the establishment of the consistory at Rostock, may also be found in MEJER'S Zum Kirchenrechte des Reformationsjahrhunderts, 3 ff., 146 ff. Compare SCHLEUSNER, "Zu den Anfängen prot. Eherechts," ZKG., VI, 390 ff., 412 ff.; GEFFCKEN, "Zur ält. Geschichte und ehegericht. Praxis des Leipzig. Konst.," ZKR., 3. Folge, IV, 7-67; HINSCHIUS, "Beiträge zur Gesch. des Desertionsprocesses nach evang. Kirchenrechte," ibid., II, 1-38; and DIETRICH, Evang. Ehescheidungsrecht, 37-62, who gives a clear account of the development of matrimonial process and jurisdiction.]

[Footnote 214: According to STÖLZEL, Ueber das landesherrl. Ehescheidungsrecht, 46 ff., passim, after the creation of consistories, as well as before, the head of the state--Landesherr--retained a right of dispensation as summus episcopus; and in Protestant lands his power to grant divorces in certain cases was not entirely superseded by the imperial law of 1875. These points, especially the last, have given rise to a controversial literature: see MEURER, Das landesh. Ehescheidungsrecht, 12 ff., who holds that the authority of the Landesherr was superseded by the act of 1875; and compare HUBRICH, Das Recht der Ehescheidung, 147 ff.; the works cited by STÖLZEL, op. cit., 54 ff.; by MEURER, op. cit., 8 ff.; and those in this connection described in Bibliographical Note XI.]

A true idea of the position of German Protestantism regarding the divorce problem cannot be obtained merely from an examination of its doctrines or its legislation. These were supplemented in several ways. Their severity regarding the grounds of separation can only be appreciated at its real value by keeping in mind, as already suggested, that the sword of the judge often cut the marriage tie on account of adultery or other crimes; and that some of the reformers, notably Luther, Brenz, and Melanchthon, were inclined in certain cases to tolerate concubinage or even bigamy, in preference to full divorce.[215] But it is especially noteworthy that the judicial decisions in divorce suits, whether consisting in the opinions of the learned or the decrees of the magistrates or consistories, were in general somewhat more liberal and more practical than either the ordinances or the dogmas of the church.[216]

[Footnote 215: See the proofs presented by RICHTER, Beiträge, 46-50; and chap, ix, p. 390, above.]

[Footnote 216: RICHTER, op. cit., 43 ff., cites several cases as evidence. On the other hand, the Wittenberg decisions analyzed by MEJER, Zum Kirchenrechte, 196 ff.; and those published by SCHLEUSNER, "Zu den Anfängen prot. Eherechts," ZKG., XIII, 130 ff., 142 ff., follow mainly the conservative direction. In this connection read the "Antwort auff etliche Fragen und Gegenwurff" in SARCERIUS, Vom heil. Ehestande, 204 ff.; or in idem, Corpus juris mat., 248 ff.]

b) Opinions of the English reformers.--The Fathers of English Protestantism as a body are more conservative than their brethren across the channel.[217] By the chiefs of the really reforming or Puritan party among them, however, ideas scarcely less bold than those of Luther or Calvin are advanced. The same arguments are used and the same causes of separation are admitted. But these ideas ultimately find no place in the canons of the established church. Under Edward VI. the leaders of the Protestant movement defend their position. "Strongly disapproving the excessive liberty of divorce which the ecclesiastical tribunals had for generations afforded to society, they were not less unanimous in condemning the doctrine of the absolute indissolubility of wedlock. If it was wrong on the one hand to allow husbands and wives the liberty of separating on frivolous pretexts, and to provide the fortress of marriage with numerous gates of egress, whose double locks obeyed the pass-keys of perjury and corruption; it was on the other hand no less hurtful to society and impious to God to constrain a pair of human creatures in the name of religion, to persevere in an association, that could not accomplish the highest purposes of matrimony, and debarred the ill-assorted couple from the serene and wholesome pleasures of Christian life."[218]

[Footnote 217: Cf. LECKY, Democracy and Liberty, II, 200; GLASSON, Le mariage civil et le divorce, 310, 311; and idem, Histoire du droit, V, 89 ff.]

[Footnote 218: JEAFFRESON, Brides and Bridals, II, 316. This summary really gives the gist of MILTON'S argument in his "Doctrine and Discipline of Divorce," Prose Works, III, 169-273.]

The average sentiment of the age is quaintly expressed in Bullinger's The Christen State of Matrimonye, translated by Bishop Miles Coverdale in 1541. "That is called iuste diuorce, when as nether partye maye take the tother agene, so it is in the lybertye of the fawtlesse partye to mary another." Such a "divorce is permitted of god for the welth and medicine of man and for amendment in wedlok. And like as all maner of medicynes and specially some as they that go nyest death as to cut of whole membres ... are very terrible. So is divorce indede a medicyne, but a perilous and pitefull.... The papistes haue forbydden the innocent and vnguiltye parte to marye after the diuorce made: Which yt was no thinge els but euen violently to cast a snare about poore peoples neckes, and to drawe them vnto vyce and synne. For the diuorced coulde not refrayne, and mary they were not permitted, therfore with violence were they forced into whordome."[219]

[Footnote 219: The Christen State of Matrimonye, lvs. lxxvi, lxxvii.]

The favorite metaphor of the reformers is also employed by Master Henry Smith. In his Preparation to Marriage, written in the reign of Elizabeth, divorce is described as the "rod of mariage" and the "medicine of adultery." If duty be done, he says, "then I need not speake of divorcement, which is the rod of mariage and divideth them which were one flesh, as if the bodie and soul were parted asunder. But because all performe not their wedlocke vowes, therefore He which appointed mariage hath appointed divorcement, as it were, taking a privilege from us when we abuse it. As God hath ordained remedies for every disease, so He hath ordained a remedie for the disease of mariage. The disease of marriage is adultery, and the medicine thereof is divorcement."[220]

[Footnote 220: MASTER HENRY SMITH, Preparation to Marriage: quoted by JEAFFRESON, Brides and Bridals, II, 294, note.]

Nearly all the English reformers of the sixteenth century agree in rejecting separation from bed and board as a "papist" innovation; and they are equally unanimous in allowing the man for unfaithfulness to put away his wife and contract another marriage.[221] Prevailing opinion appears also to have accorded the same privilege to the woman on like provocation; but there were undoubtedly some in the Protestant ranks who were not so liberal in her behalf. In particular this seems to be the correct inference to be drawn from the antagonism and excitement caused by the bold position of Hooper,[222] who won a perilous distinction through his sensible demand for even justice to the sexes in this regard.[223] According to the common view, malicious desertion on the part of either spouse is a second scriptural ground for the complete dissolution of wedlock. The singular logic through which the words of Paul are made to sustain this distinctively Protestant doctrine may be illustrated by a typical example. "But to our purpose," exclaims Tyndale, "what if a man run from his wife and leave her desolate? Verily, the rulers ought to make a law, if any do so and come not again by a certain day, as within the space of a year or so, that then he be banished the country; and if he come again, to come on his head, and let the wife be free to marry when she will." But how is this liberty to be reconciled with the words of Paul who allows a brother or sister a divorce when deserted by an unbelieving spouse? Easily; for elsewhere "he saith, 'If there be any man that provideth not for his, and namely for them of his own household, the same denieth the faith, and is worse than an infidel.' And even so is this man much worse to be interpreted for an infidel, that causeless runneth from his wife."[224]

[Footnote 221: Cf., for example, BECON'S "Catechism," Works, II, 647; and his "Prayers," ibid., III, 532; TYNDALE, Expositions, 51, 52; Bucer in MILTON'S Prose Works, III, 299, 300, who grants this cause to both parties.]

[Footnote 222: Hooper's teaching caused great excitement: see the letter of JOHN AB ULMIS to BULLINGER, in Original Letters relating to English Reformation, 416. Bullinger is said to hold the same views: ibid., 422. At his trial one of the charges against Hooper was that he taught that the bond of wedlock may be dissolved for adultery: HOOPER, Later Writings, xxiii.]

[Footnote 223: HOOPER, Early Writings, 382-87, declares, on the authority of Mark 10:12, that the woman as well as the man may divorce for adultery. To those who deny this according to the Mosaic law he says: "I grant the same, but I am sure the poor woman was not compelled to live with her adulterous husband; for the law commanded such a villain to be slain, and so put the honest party to liberty; and so should it be now-a-days, and then the question of divorcement would be ended" (383). Again, to those who say if woman had this right "marriage could never be sure nor constant, for women would change still at their pleasure," he replies, "there is given no such liberty to man or woman by the word of God," meaning, doubtless, separation at pleasure, except for cause established in court. In a letter to Henry Bullinger he defends his doctrine of divorce as to the woman: Original Letters rel. to English Reformation, 64.]

[Footnote 224: TYNDALE, Expositions, 54, 55. A similar illustration of the straits to which the Protestant was brought in his necessity of appealing to authority is afforded by Bucer, in MILTON'S Prose Works, III, 309: "Hither may be added, that the Holy Spirit grants desertion to be a cause of divorce, in those answers given to the Corinthians.... But some will say, that this is spoken of a misbeliever departing. But I beseech ye, doth not he reject the faith of Christ in his deeds, who rashly breaks the holy covenant of wedlock instituted by God? And besides this, the Holy Spirit does not make the misbelieving of him who departs, but the departing of him who disbelieves, to be the just cause of freedom to the brother or sister. Since therefore it will be agreed among Christians, that they who depart from wedlock without just cause, do not only deny the faith of matrimony, but of Christ also, whatever they profess with their mouths; it is but reason to conclude, that the party deserted is not bound in case of causeless desertion, but that he may lawfully seek another consort, if it be needful to him, toward a pure and blameless conversation." Cf. also the argument of MILTON, "The Doctrine and Discipline of Divorce," Prose Works, III, 258, 259.]

Far more daring than any of the English writers before Milton is Martin Bucer, of Strassburg, whose doctrines of divorce comprised in the book dedicated to Edward VI. are almost as bold as those of Zwingli. According to this famous theologian, for two years professor at Cambridge, and greatly venerated by his contemporaries, divorce is a divine institution; and it ought to be granted not merely for unfaithfulness and desertion, but for many other reasons as well. It is curious, but thoroughly in keeping with the mental habits of his age, to see how he persuaded himself that the causes of divorce sanctioned by the decrees of the "pious emperors" from Constantine to Justinian are not "contrary to the word of God;" may therefore "be recalled into use by any Christian prince or commonwealth;" and are thus "by divine approbation" valid among Christians at the present hour.[225] Usually in his treatise he advocates equal liberty of divorce for both consorts; but, in contradiction to the spirit of his own teaching, in one chapter he sets forth a doctrine which would place the wife absolutely at the mercy of a licentious or despotic lord. A passage from the prophet Malachi Bucer renders: "'Take heed to your spirit, and let none deal injuriously against the wife of his youth. If he hate, let him put away, saith the Lord God of Israel. And he shall hide thy violence with his garment'--that marries her divorced by thee."[226] On this authority he concludes that "by these testimonies of the divine law ... the Lord did not only permit, but also expressly and earnestly commanded his people, by whom he would that all holiness and faith of marriage covenant should be observed, that he who could not induce his mind to love his wife with a true conjugal love, might dismiss her, that she might marry to another."[227] Verily this is naïve morality. Such singular care for the wife's happiness finds scarcely a parallel, unless indeed it be in the ethics of John Milton, to which we must presently recur.

[Footnote 225: BUCER, in MILTON'S Prose Works, III, 302, 303, 292, 293, 306-8. By some of his brethren he was regarded as a fanatic on this subject as the following letter from JOHN BURCHER to HENRY BULLINGER shows: "Strasburgh, June 8, 1550: Bucer is more than licentious on the subject of marriage. I heard him once disputing at table upon this question, when he asserted that a divorce should be allowed for any reason, however trifling; so that he is considered, not without cause, by our bishop of Winchester as the author of the book published in defence of the Landgrave. I am ignorant as to what the hireling Bucer, who fled from this church before the wolf came in sight, is plotting in England."--Original Letters rel. to the Eng. Ref., 655, 656.

"Philip, landgrave of Hesse, in addition to Christina, the daughter of the late duke George, to whom he had been united many years, and by whom he had a large family, married on March 3, 1540, a lady named Margaret de Sala, and this with the consent of the landgravine under her own hand and seal. Previous to this he sought to obtain the sanction of Luther, Melanchthon, and Bucer, whose want of firmness in this painful case has called forth the most violent invectives from Vorillas and Bossuet, bishop of Meaux."--Ibid., 666, note.]

[Footnote 226: Mal. 2:15, 16, which in the James version is given: "Therefore take heed to your spirit, and let none deal treacherously against the wife of his youth. For the Lord, the God of Israel, saith that he hateth putting away: for one covereth violence with his garment," etc. It may be noted that MILTON, "Doctrine and Discipline of Divorce," Prose Works, III, 196, following "Calvin and the best translations," renders the passage from Malachi, "he who hates, let him divorce," thus agreeing essentially with Bucer.]

[Footnote 227: BUCER, in MILTON, Prose Works, III, 297. Cf. JEAFFRESON, Brides and Bridals, II, 329-32, who believes that these sentiments of Bucer, however shocking to us, were accepted by the most "virtuous and devout" in the sixteenth and seventeenth centuries.]

But positive evidence of the views of the Reformation Fathers has been preserved for the time of Edward VI. Under Henry VIII. the principles of the canon law touching divorce remained in full force, except that by restricting the number of forbidden degrees to those recognized by the Levitical code, and through the abolition of pre-contracts, the chances for escaping the ties of marriage by crooked ways were somewhat lessened.[228] The restoration of pre-contracts[229] under Edward VI., however, caused the reformers to fear lest the old evils growing out of clandestine unions and nullification of false wedlock on the pretext of previous sponsalia de praesenti would also be revived; and this quickened their desire for a formal settlement of the law of divorce in harmony with the altered views of the English church. Accordingly, an act of Parliament authorized the appointment of a commission of thirty-two persons to prepare a "complete code of ecclesiastical laws."[230] The commission selected in pursuance of this statute comprised the most learned divines and lawyers of the Protestant party. Their task was well performed; and their report, drafted mainly by Cranmer and translated into Latin by Dr. Haddon and Sir John Cheke, was submitted in 1552 under the title of Reformatio Legum Ecclesiasticarum.[231]

[Footnote 228: By 32 H. VIII, c. 38. Cf. REEVES, _Hist. of Eng. Law_, IV, 333-36; GLASSON, Hist. du droit, V, 89.

On Henry VIII.'s divorce see POCOCK, Records of the Reformation: The Divorce, 1527-1553, containing the original documents; BURNET, Hist. of the Reformation, I, 26-123; GEARY, Marriage and Family Relations, 596-602; THWING, The Family, 87; WOOLSEY, Divorce, 168, 169; JEAFFRESON, Brides and Bridals, I, 114, 124; II, 312 ff., who defends the king on the ground that the pope did not grant him the indulgence which private citizens constantly enjoyed, especially when they were able to pay for it. There is a valuable bibliography of Henry's divorce in HUTH, Marriage of Near Kin, 404-11.]

[Footnote 229: By 2 and 3 Ed. VI, c. 23.]

[Footnote 230: By 3 and 4 Ed. VI, c. 11. Cf. the account by JEAFFRESON, op. cit., II, 317, 318.]

[Footnote 231: The report was published in 1571 under supervision of Archbishop Parker; and then in an Oxford reprint of 1850: WOOLSEY, Divorce, 170, note. I have followed the excellent summary by JEAFFRESON, partly containing the Latin text: op. cit., II, 318-23; and REEVES, Hist. of Eng. Law, V, 74-80, gives a good analysis. Cf. also HALLAM, Const. Hist., I, 101, 102, note; LINGARD, Hist. of England, IV, 284; HAMMICK, Marriage Law, 6; GEARY, Marriage and Family Relations, 8 n. 6, 578; Report of the Divorce Commission, Parl. Papers, 1852-53, 4; Report of the Ecc. Courts Comm., 1883, xxxi-xxxiii, xxxvi; BISHOP, Marriage, Divorce, and Separation, I, § 1496; MACQUEEN, Practical Treatise (London, 1842), 467; Law Review (English), I, 356-58; BURN, Ecc. Law, II, 503 ff.; LECKY, Democracy and Liberty, II, 175; LUCKOCK, Hist. of Marriage, 175, 176; MORGAN, Marriage, Adultery, and Divorce, II, 227-29.]

This code, though it was never put in force, perhaps in consequence of the king's death, is regarded as a faithful index of Protestant opinion. Before referring to its treatment of the question of divorce, some of its general provisions may be mentioned. These often show the strong common-sense and lofty moral purpose of its framers. The consent of the parent or guardian is made necessary to a valid marriage. Children whose reasonable desires in matrimony are hindered by the caprice or unkindness of those having authority over them are granted the right of appeal to the ecclesiastical magistrate, who may give redress. Aged women are advised to forbear from wedlock with young men. A marriage secured through fear or violence is rendered void. An attempt is also made through severe penalties to check those crimes against women which, as elsewhere shown, were first effectively dealt with during the Puritan Commonwealth.[232] "They ordered that the betrayer of a virgin should be excommunicated until he had married his victim, if it was in his power to wed her; or until he had assigned to her a third of his property, or made some other sufficient arrangement for the support of her offspring," if on account of legal impediment he could not make her his wife.[233]

[Footnote 232: See chap. x, sec. i, pp. 421-23 above.]

[Footnote 233: JEAFFRESON, op. cit., II, 322.]

Hereafter, according to the report, spiritual affinity is not to count as an impediment to matrimony. Separation a mensa et thoro is not recognized; but complete divorce a vinculo matrimonii is granted "in cases of extreme conjugal faithlessness; in case of conjugal desertion or cruelty; in cases where a husband, not guilty of deserting his wife, had been for several years absent from her," provided there be reason to believe him dead; "and in cases of such violent hatred as rendered it in the highest degree improbable that the husband and wife would survive their animosities and again love one another;"[234] but separation is not permitted for frequent, though not incessant or vehement, quarrels.[235] Divorce is denied where both partners are guilty of unfaithfulness; and when one is guilty, only the innocent spouse is permitted to contract another marriage. Self-divorce is forbidden. In all cases it is the province of the ecclesiastical court to determine whether there exists a just cause for separation.[236] Finally, it may be noted that adultery as a crime is severely dealt with, though the commissioners do not go to the length of prescribing capital punishment, as some of the English reformers would have desired. The guilty husband, if a layman, shall "restore to his injured wife whatever possessions she had brought him, and also surrender to her one-half of all his other property. He was, moreover, sentenced to exile or imprisonment for life. Convicted of the same offence, the wife lost her dower and all interest in her husband's property, and was consigned to life-long imprisonment or banishment." For this crime and similar offenses "clerical delinquents" are treated with even greater severity.[237]

[Footnote 234: "Inter conjuges si capitales intercedant inimicitiae tamque vehementer exarserint, ut alter alterum aut insidiis aut venenis appellat, aut aliqua vel aperta vi, vel occulta peste, vitam velit eripere, quamprimum tam horribile crimen probatum fuerit, rite in juditio divortio volumus hujuscemodi personas distrahi."--Ref. leg. ecc.: ap. JEAFFRESON, op. cit., II, 320, 321, note.]

[Footnote 235: "Parva contentiones, nisi perpetuae sint, divortium non inducunt."--Ref. leg. ecc.: ap. JEAFFRESON, op. cit., II, 321.]

[Footnote 236: JEAFFRESON, op. cit., II, 321.]

[Footnote 237: Ibid., 322, 323.]

The report prepared by the commission never received the sanction of the king; nor does it appear that any authoritative change in the canon law relating to divorce was ever made until the present century. Nevertheless the Reformatio Legum "is a work of great authority, showing the recognized opinion and sentiment of the church of England at that time and containing the views of the first reformers."[238] The principle represented by it was carried out in practice, though it may well be doubted whether, as is sometimes urged,[239] the decrees of the ecclesiastical court ever went so far as expressly to grant dissolution of wedlock. According to the ancient form of judgment, divorce was probably still pronounced only a mensa et thoro; but, whatever the shape of the decrees, there is strong evidence that from about 1548 to 1602, except for the short period of Mary's reign, "the community, in cases of adultery, relied upon them as justifying a second act of matrimony."[240] For already in 1548--four years before Edward's commission had completed its report--the new doctrine had been in a measure sustained by the well-known case of Lord Northampton, brother of Queen Catherine Parr. After obtaining a decision of an ecclesiastical court separating him from his wife, Anne Bourchier, the marquis had contracted another union with Elizabeth Brooke, daughter of Lord Cobham. Subsequently a commission of delegates, headed by the archbishop of Canterbury, declared the second marriage valid, "because the former contract had been absolutely destroyed" by Anne Bourchier's infidelity;[241] and in 1552 this decision was confirmed by an act of Parliament[242] which declares the marriage valid "by the law of God,--any decretal, canon ecclesiastical, law, or usage to the contrary notwithstanding."[243]

[Footnote 238: GEARY, Marriage and Family Relations, 8 n. 6.]

[Footnote 239: So by Sir John Stoddart in his evidence before the Lords' Select Committee, 1844: "Therefore I apprehend that the Reformatio legum having been published as a work of authority, although not of absolute legislative authority, it must have been, and in all probability was, followed: and for that reason in the Spiritual Courts there were dissolutions of marriage. Because I believe that from about the year 1550 to the year 1602 marriage was not held by the Church, and therefore was not held by the Law, to be indissoluble."--Minutes of Evidence, 27: Law Review (Eng.), I, 358, 359.]

[Footnote 240: Law Review (Eng.), I, 359. Cf. JEAFFRESON, op. cit., II, 323.]

[Footnote 241: JEAFFRESON, op. cit., II, 323, 324. Cranmer examined the Fathers and other authorities on divorce for adultery; and the material which he thus collected grew into a large book, which Burnet, who gives a summary, says he has seen: Hist. of Reformation, I, 330 ff. Burnet's summary is also given by GEARY, Marriage and Family Relations, 577, 578. Cf. MACQUEEN, Practical Treatise, 468, 469.]

[Footnote 242: 5 and 6 Ed. VI., c. 4.]

[Footnote 243: MACQUEEN, op. cit., 469. "This bill is often, but erroneously, referred to as the earliest example of parliamentary divorce (SHELFORD, 373). It is not a divorce bill; neither did it proceed upon the principle of a divorce bill. Its object was merely to declare that the adultery of the first wife, followed by the ecclesiastical sentence, entitled the Marquis to take a second wife. The principle on which the act passed assumed the jurisdiction of the Church Court, to dissolve the marriage proprio vigore. The act did not divorce the parties, but merely declared them to be already, by the ecclesiastical sentence, sufficiently divorced to admit of the Marquis marrying again."--Ibid., 469 n. e. On this case see also Law Review (Eng.), I, 358, 359; Report of the Royal Commission on Divorce, Parl. Papers, 1853, 57 ff.; GEARY, op. cit., 17; WOOLSEY, Divorce, 169-71; LECKY, Democracy and Liberty, II, 174, 175; BURN, Ecc. Law, II, 503_a_-503_b_; REEVES, Hist. of Eng. Law, V, 80, 81; MORGAN, Marriage, Adultery, and Divorce, II, 229 ff.]

This is, indeed, convincing evidence of the changed opinion of the English church. Nor can it be questioned that throughout nearly the whole of Elizabeth's reign popular practice was in harmony with the doctrine thus proclaimed.[244] New marriages were freely contracted after obtaining divorce from unfaithful partners.[245] Clear evidence of this fact is afforded by Bunny, himself strongly opposed to the liberal tendency.[246] As a matter of fact, popular custom, sustained by the profound sentiment of the Reformed clergy, was fast ripening into a law as valid as any which a legislature could enact. Such a tendency, however, could not fail to become more and more obnoxious to many of the leaders of the established clergy, as Elizabeth's reign progressed. Archbishop Whitgift defends the ancient divorce jurisdiction of the spiritual courts against Cartwright,[247] and the Puritan party is treated with ever-increasing rigor. Still the reactionary canons passed by the Chamber of Convocation in 1597, doubtless designed to check what was already looked upon as a dangerous abuse, bear witness to its continued existence; if indeed by implication, as is powerfully argued, they do not directly sanction the dissolution of marriage through divorce.[248]

[Footnote 244: According to the _Report of the Commissioners, 1852-3_, 5, divorce was allowed during the period 1550-1602.]

[Footnote 245: See, however, WOOLSEY, Divorce, 170, 171, 313, who, insisting that the ancient canon law was unchanged, remarks that "for a number of years, although remarriage after divorce was null and void, so that the issue would not be legitimate, no civil penalties were attached to it, and it was punishable only by ecclesiastical censures." Hence many married "without scruple." Cf. CRAIK, Romance of the Peerage, I, Appendix, upon whom Woolsey relies; and JEAFFRESON, Brides and Bridals, II, 323, 324, who holds that the decision of the delegates in the Northampton case was "good law" until 1602.]

[Footnote 246: BUNNY, Of Divorce for Adulterie, and Marrying againe: that there is no sufficient Warrant so to do (Oxford, 1610). This book had been written many years before. The preface is dated Dec. 13, 1595; and in it Bunny refers to the state of public opinion and to events, notably in Yorkshire, of a still earlier time. In "a Sermon," he says: "I breefly noted, that the libertie, that in these our daies many doe take, of divorcing their wiues for adulterie and marying of others, had not such warrant in the worde of God as they thought that it had." Just before delivering this discourse a gentleman who desired to put away his wife for adultery and marry again, "and having already gotten (into a little paper-book of his) the handes of sundrie of the Preachers of those parts," had come to him for similar support. He further notes that "a few yeeres" earlier not less than "fowre several persons" of one of the greatest families in "those parts" had married again after divorce; and in general his "Advertisement to the Reader" leaves the impression that the new doctrine was, on the whole, the prevailing one; although, according to law, "neither those second women were allowed any dowrie, nor their children to be legitimate."]

[Footnote 247: WHITGIFT, "Defence of the Answer," Works, III, 267 ff. Cf. BULLINGER, Decades, IV (V), 511.]

[Footnote 248: These ordinances are known as the "Ecclesiastical Constitutions" of 1597. Canon 105 urges greater care in matrimonial causes, especially in cases where marriage "is required to be dissolved or annulled;" and it is strictly charged "that in all proceedings in divorce and nullities of marriage, good circumspection and advice be used, and that the truth may, as far as possible, be sifted out by depositions of witnesses and other lawful proofs; and that credit be not given to the sole confession of the parties themselves, howsoever taken upon oath either within or without the court." The 107th canon requires a bond to be given in case of "sentences pronounced only for divorce and separation à thoro et mensâ," that "the parties so separated shall live chastely, and neither shall they, during each other's life, contract matrimony with other persons." From these canons it has been inferred with some plausibility that both "dissolving divorce" and "nullifying divorce" are contemplated as valid and customary; and that the requiring of a bond implies that the marriage which the bond is intended to prevent would have been valid: see Law Review (Eng.), I, 359, 360, and the opinions there cited; also Plea for an Alteration in the Divorce Laws (London, 1831), 3 ff.]

Similar testimony is afforded by the celebrated Foljambe case in 1602, when a court sitting in the Star Chamber incidentally pronounced invalid a marriage which had been contracted after separation from bed and board by decree of an ecclesiastical judge; and this decision follows the advice of a council of the "most sage divines and civilians assembled by Archbishop Whitgift at Lambeth, declaring in harmony with the ancient law that remarriage after judicial separation is null and void."[249]

[Footnote 249: The Foljambe case has given rise to much controversy. It is commonly regarded as marking the formal abandonment of the more liberal law of the Reformation period and a return to canonical principles. This view is mainly traceable to the statements of SALKELD, Reports of Cases in the King's Bench (Philadelphia, 1822, from 6th London ed.), III, 137, who commits several errors, and is otherwise misleading. He is followed by JEAFFRESON, Brides and Bridals, II, 324; GEARY, Marriage and Family Relations, 12; MACQUEEN, Practical Treatise, 470, 471; HARRISON, Probate and Divorce, 115; and especially BISHOP, Marriage and Divorce (5th ed.), I, §§ 661, 705. On the other hand, WOOLSEY, Divorce, 172, note, 310-13, following the researches of CRAIK, Romance of the Peerage, I, Appendix, regards the decision as merely confirming existing law. He criticises Bishop for being misled by Salkeld, whereas the facts appear to be more correctly given in NOY'S Reports, 100; and particularly in MOORE'S Cases (2d ed. folio, London, 1688), 683, which may be translated from the law-French as follows: "Feb. 13, anno 44 Eliz. In the Star Chamber it was declared by all the court, that whereas Foljambe was divorced from his first wife for incontinence of the woman [in fact, for his own adultery], and afterwards had married Sarah Poge [Page], daughter of Rye, in his former wife's life-time, this was a void marriage, the divorce being a mensa et thoro, and not a vinculo matrimonii. And John Whitgift, then Archbishop of Canterbury, said that he had called to himself at Lambeth the most sage divines and civilians, and that they had all agreed therein." It is concluded, therefore, that this decision of the "sage divines and civilians" must have been incidental to a case under trial in the Star Chamber, and that the law was merely declared and not changed. See, however, the sixth edition of BISHOP'S work, I, § 1498 n. 3, where the author insists on the essential correctness of his original view. Cf. also Law Review (Eng.), I, 361, 362; Report of the Commissioners (Divorce), 1852-53, 4-6; and MORGAN, Marriage, Adultery, and Divorce, II, 233.]

Strictly speaking, it may not be correct to say, as is commonly done by law writers, that the Foljambe case marks a change in the law of divorce by requiring a return to the doctrine of the ancient church; but from it, at any rate, two important inferences may be drawn. On the one hand, it shows that the custom of remarriage after separation a mensa et thoro was continued to the very end of Elizabeth's reign. On the other hand, it constitutes a stage in the development of a more conservative policy. As such it may have had something to do with the legislation of about a year later. By royal authority in 1603 the canons of 1597 were re-enacted "word for word," and consequently, as already suggested, they incidentally bear witness to the Reformation theory and practice as to divorce and remarriage, while seeming to admit the possibility of a valid dissolution of wedlock by judicial decree.[250] For the first time in English history a statute of 1604 makes bigamy[251] in the modern sense a felony punishable with death; but there are exceptions to the operation of the act which tell strongly in favor of the view that the custom of remarriage after judicial separation had been something more than tolerated. It is expressly provided that the penalty fixed by the act shall not extend to a man or woman who has contracted a new marriage after seven years' desertion; nor to "any person or persons that are or shall be at the time of such marriage divorced by any sentence had or hereafter to be had in the ecclesiastical court."[252] Here it is clear that dissolution of wedlock by sentence of nullity is not intended; for this is provided for by another exception in the act itself. It is equally clear that all cases of divorce by judicial decree are comprehended, whatever the cause of separation assigned. The law as then interpreted seems to have remained unchallenged until 1637, when in Porter's case the court of King's Bench, without squarely deciding the point, expressed a doubt whether a woman remarrying after divorce for cruelty was exempt from punishment under the proviso of King James's statute; because, "if this should be suffered, many would be divorced upon such pretence, and instantly marry again, whereby many inconveniences would arise. Whereupon she was advised not to insist upon the law, but to procure a pardon to avoid the danger; for it was clearly agreed by all the civilians and others, that the second marriage was unlawful."[253] Nevertheless, the hesitation of the court does not appear to be justified either by the plain words of the act or by the weight of legal authority.[254]

[Footnote 250: Law Review (Eng.), I, 362. One of these canons "provided that no persons separated a toro et mensa should, during their joint lives, contract matrimony with other persons, and that the parties requiring the sentence of divorce should give sufficient caution and security into the court that they would not transgress this restraint. Another canon required the judge who should grant divorce, without observing these rules, to be suspended for one year by the archbishop or bishop, and declared his sentence utterly void."--WOOLSEY, Divorce, 171, 172. Cf. LUCKOCK, Hist. of Marriage, 177 n. 2; MORGAN, Marriage, Adultery, and Divorce, II, 233 ff.]

[Footnote 251: By the act of 1 James I., c. xi, "bigamy" is used in the modern sense. In mediæval law a "bigamist" is one who marries again after his first wife's death; the word "polygamist" being employed for the person who takes another woman before the death of the first spouse. By 4 Ed. I., 1276 (Stat. de bigamis, Stat. at Large [Pickering], I, 116), benefit of clergy is denied him who is a bigamist, i. e., has contracted a second marriage after death of the first wife: JEAFFRESON, Brides and Bridals, II, 327. Compare GLASSON, Hist. du droit, III, 184, 185.

"As for the crime of polygamy [the modern bigamy], it hath not been made penal by any statute, till the time of James the First. A canon of Pope Gregory the Tenth had taken away all clerical privileges from a bigamist, as the marrying a second wife was considered by the ecclesiastical law, to be proof of a most incontinent disposition; this regulation having been adopted in England, the clergy had a doubt, whether a person, who had been guilty of this offence before the canon law took place, might claim the indulgence of the common law; this statute [4 Ed. I.], therefore, retrospectively declares, he shall not be entitled to such privilege."--BARRINGTON, Observations upon the Statutes (4th ed., London, 1775), 106; also JEAFFRESON, op. cit., II, 327, note. But it may be noted that by 1 Ed. VI., c. 12, sec. 16: Stat. at Large (Pickering), V, 265, 266, benefit of clergy is restored in terms which may leave it in doubt whether bigamy in the modern sense is intended. This privilege is granted to offenders, "although they or any of them have been divers and sundry times married to any single woman or single women, or to any widow or widows, or to two wives or more." On the ancient meaning of "bigamy" see also GLASSON, op. cit., III, 184.]

[Footnote 252: 1 James I., c. xi: Stat. at Large (Pickering), VII, 88, 89.

However, inferences as to the law in the preceding period must be made with caution. The case of Stephens v. Totty, decided at the Michaelmas term, 44 and 45 Eliz., shows that a husband and a wife divorced a mensa et thoro were still married: CROKE'S Reports (Elizabeth), 908. Cf. on this act especially HALE, Hist. of the Pleas of the Crown (London, 1800), I, 691-93; also WOOLSEY, Divorce, 171; Law Review (Eng.), I, 362. Furthermore, RAYNOLDS, a strong advocate of absolute divorce, in his Defence of the Judgment of the Reformed Churches (1609), appears to make no claim that his doctrine is sustained either by law or custom. So also in the quaint treatise, The Lawes Resolutions of Women's Rights (London, 1632), 64 ff., full divorce is not recognized; although, referring to the fact that legally "no crime dissolueth marriage," the compiler (67) seemingly approves Conrad Lagus who says, "seeing that in Contracts of Wedlock we regard as well what is decent and conuenient, as what is lawfull, I cannot tell why we be not bound in dissoluing of it to follow the like equitie; and for example, if a Wife cannot dwell with her husband without manifest danger of death ... why may not she be separated iudicis ordinarij cognitione precedente?"

On the other hand, SPENCE, Equitable Jurisprudence, I, 702, believes that the bond not to marry required by the canons of 1603 was the only hindrance to remarriage after divorce; and from this time onward he thinks it "not unlikely that the court of chancery decreed divorces a vinculo; and that the American courts of equity brought this doctrine (or right) with them." This view is rejected by SCRIBNER, Treatise on the Law of Dower, II, 545-47, although he agrees as to the effect of the bond.]

[Footnote 253: Porter's case, Easter term, 12 C. I.: CROKE'S Reports (Charles I.), 461-63.]

[Footnote 254: See the strong argument of Holburn and Grimston for the defendant who justly claim that a "divorce causa saevitiae is grounded ex jure naturae, and is in the same manner and nature as a divorce causae adulterii: CROKE'S Reports (Charles I.), 463. HALE, Hist. of Pleas of the Crown, I, 693, remarks "certainly the divorce intended" by James's act "is not a vinculo matrimonii;" and then further observes, in Porter's case "it was doubted, whether a divorce causâ saevitiae were such a divorce as was within this exception, because it seemed rather to be a provisional separation for the wife's safety and maintenance, than a divorce; but it was never resolved." Cf. also Co. Lit., 235; MARCH, Reports of New Cases, 101; COKE, Institutes, III, 89; KELYNG, Report of Divers Cases (Dublin, 1789), 27; GEARY, Marriage and Family Relations, 12.]

III. LAW AND THEORY DURING THREE CENTURIES

a) The views of Milton.--With the opening of the Stuart era, therefore, a reactionary policy with respect to divorce was established. For two centuries and a half thereafter the principles of the ancient canon law were administered by the English spiritual courts. In fact, it was now more difficult than before the Reformation to escape the marriage tie;[255] for the papal dispensation could grant no relief, and in consequence of the decrease in the number of restraints to a valid marriage, the decree of nullity was not so often a convenient subterfuge. Only the rich or noble were able to afford the costly remedy of a special act of Parliament to cure their matrimonial ills. Hence it is not a little surprising that the Puritan Revolution brought with it no change in this regard. One would naturally expect the Independents under Cromwell's leadership, by whom the remarkable civil-marriage law of 1653 was conceived, to relegate the whole matter of divorce and nullity to the temporal courts under proper legal conditions; yet there seems to be no record of such a course.

[Footnote 255: JEAFFRESON, Brides and Bridals, II, 315, perhaps with too much emphasis, thus describes the effects of 32 H. VIII., c. 38: "It rendered wedlock easier of entrance, but closed all the many gates which had hitherto afforded spouses the means of escape from conjugal wretchedness.... The Elizabethan jest, that compared matrimony to a public rout, was no less applicable to wedlock in Catholic than to marriage in Protestant England; but whereas our ancestors before the Reformation could always get out of the press by a few permissible falsehoods and the payment of money, the marriage law of Protestant times declared that, having once forced their way into the crowd, they should remain in it till death came to their relief."]

But if the Puritan statute-book was silent, Puritan thought produced the boldest defense of the liberty of divorce which had yet appeared. If taken in the abstract and applied to both sexes alike, it is perhaps the strongest defense which can be made through an appeal to mere authority. For, in spite of their casuistry, their inconsistencies, and their injustice to woman, the writings of John Milton may be said to have about exhausted the resources of theological argument and the learning of his age on this subject.[256] He goes farther than Zwingli, Bucer, or any other reformer in admitting grounds for the absolute dissolution of marriage. According to Milton, divorce is a "law of moral equity," a "pure moral economical law ... so clear in nature and reason, that it was left to a man's own arbitrement to be determined between God and his own conscience;" and "the restraint whereof, who is not too thick-sighted, may see how hurtful and distractive it is to the house, the church, and the commonwealth."[257] It is lawful to Christians "for many other causes equal to adultery," such as cruelty, idolatry, and "headstrong behaviour" on the part of the woman, as also for desertion.[258] For "what are these two cases [adultery and desertion] to many other, which afflict the state of marriage as bad, and yet find no redress?" Hence he spurns a narrow construction as contrary to reason. "What hath the soul of man deserved, if it be in the way of salvation, that it should be mortgaged thus, and may not redeem itself according to conscience out of the hands of such ignorant and slothful teachers as these, who are neither able nor mindful to give due tendance to that precious cure which they rashly undertake; nor have in them the noble goodness, to consider these distresses and accidents of man's life, but are bent rather to fill their mouths with tithe and oblation?"[259] Nor is this the only time when Milton speaks the language of the modern social reformer, though sometimes his strongest arguments from the standpoint of reason are ill sustained by the authority upon which he relies. From the law of Moses, with which he insists that the law of Jesus must agree, he thus reaches the conclusion that just ground of divorce is "indisposition, unfitness, or contrariety of mind, arising from a cause in nature unchangeable, hindering, and ever likely to hinder the main benefits of conjugal society, which are solace and peace."[260] To this ideal of the true end of wedlock he returns again and again. Rejecting the gross and carnal conception of the Fathers and canonists, their glaring contradiction between marriage as a "defilement" and a sacrament,[261] he urges that matrimony is a society "more than human," centering "in the soul rather than in the body;" a companionship resting upon the "deep and serious verity" of "mutual love," without which wedlock is "nothing but the empty husks of an outside matrimony, as undelightful and unpleasing to God as any other kind of hypocrisy."[262] Hence, where such society does not exist, where mutual affection has given place to deceit, the legal bond of the sham wedlock ought to be dissolved.

[Footnote 256: His four principal works dealing with divorce are the "Doctrine and Discipline of Divorce" (Prose Works, III, 169-273); supplemented by "The Judgment of Martin Bucer" (ibid., 274-314); "Tetrachordon" (ibid., 315-433); and the "Colasterion" (ibid., 434-61). See also Prose Works, IV, 243-49; I, 259.]

[Footnote 257: MILTON, "Doctrine and Discipline of Divorce," Prose Works, III, 241, 242.]

[Footnote 258: MILTON, "Colasterion," Prose Works, III, 423-33, where the views of many reformers are quoted; and "Doctrine and Discipline of Divorce," ibid., 251-58, where Jesus's words are examined.]

[Footnote 259: MILTON, "Colasterion," Prose Works, III, 425.]

[Footnote 260: MILTON, "Doctrine and Discipline of Divorce," Prose Works, III, 185.]

[Footnote 261: The doctrine of indissolubility compels uncongenial minds to "fadge together, and combine as they may to their unspeakable wearisomeness, and despair of all sociable delight in the ordinance which God hath established to that very end.... All which we can refer justly to no other author than the canon law and her adherents, not consulting with charity, the interpreter and guide of our faith, but resting in the mere element of the text; doubtless by the policy of the devil to make that gracious ordinance become unsupportable, that what with men not daring to venture upon wedlock, and what with men wearied out of it, all inordinate licence might abound."--"Doctrine and Discipline of Divorce," Prose Works, III, 181.]

[Footnote 262: Ibid., 210, 211, 195. For similar expressions see ibid., 181, 182, 185, 267.]

Unfortunately, there is another and less pleasing aspect of Milton's teaching. Beyond question saturated as he is in the sentiments of the Hebrew law, Milton has a very low ideal of womanhood. Almost invariably it is the husband's grievances which excite his compassion. Scarcely by implication does he ever admit that the wife may initiate proceedings, private or public, to rid herself of an unwelcome spouse. It is not quite clear whether he would allow her to put away even the unfaithful husband against his will;[263] while repudiation for lack of sympathy, for "loneliness," on account of failure to realize that comfort and full spiritual society upon which he so fondly dwells, is apparently the sole privilege of the man. In his opinion the man is emphatically the head of the woman, who was created by God expressly "to comfort and refresh him against the evil of solitary life."[264] No disciple of Hillel was ever more thoroughly persuaded that mere dislike is adequate cause for putting away a wife at the sole command of the husband than was he. "No libertine, for the sake of wickedness and gratification of low desire, ever demanded greater license in marriage than Milton in the name of religion demanded for Christian men, in order that they might find meet-helps, and escape the grievances of uncongenial wedlock," though doubtless his sole aim was the attainment of domestic purity and happiness.[265]

[Footnote 263: However, chap. xxxiv of BUCER'S work, entitled "That it is lawful for a wife to leave an adulterer, and to marry another husband," Milton disposes of with the remark that "this is generally granted, and therefore excuses me the writing out": "The Judgment of Martin Bucer," Prose Works, III, 300. But this must be considered in connection with his positive claim of entire jurisdiction for the man in divorce causes, below referred to. Occasionally he drops a word from which possibly it may be inferred that he believes in a reciprocal right of the sexes; but it is amazing how adroitly he avoids a direct statement to that effect. Cf., for example, "Doctrine and Discipline of Divorce," Prose Works, III, 182, where he seems to approve the liberal laws of the Christian emperors; ibid., 247-49, where he refers to Beza's view that divorce is for the benefit of the woman; "Tetrachordon," Prose Works, III, 359, 372, where he touches lightly upon the mutual rights of husband and wife.]

[Footnote 264: MILTON, "Doctrine and Discipline of Divorce," Prose Works, III, 181. "And what his chief end was of creating woman to be joined with man, his own instituting words declare, and are infallible to inform us what is marriage, and what is no marriage; unless we can think them set there to no purpose: 'It is not good,' saith he, 'that man should be alone. I will make him a help meet for him.'"--Ibid., 187. Beza holds, says Milton, that divorce (by the Jewish law) is created "only for the help of wives." This leads him to exclaim: "Palpably uxorious! Who can be ignorant, that woman was created for man, and not man for woman, and that a husband may be injured as insufferably in marriage as a wife! What an injury is it after wedlock not to be loved! What to be slighted! What to be contended with in point of house rule who shall be the head; not for any parity of wisdom, for that were something reasonable, but out of a female pride! 'I suffer not,' saith St. Paul, 'the woman to usurp authority over the man.' If the apostle could not suffer it, into what mould is he mortified that can?"--Ibid., 247; cf. also ibid., 209.]

[Footnote 265: JEAFFRESON, Brides and Bridals, II, 333. He was not solely actuated by irritation against his wife, Mary Powell, whom he had put away; for he retained his views after taking her back and to his life's end: ibid., II, 333.]

That this judgment is scarcely too severe is clearly proved by Milton's theory of proper divorce procedure.[266] Rejecting all aid of court or magistrate, he goes back to the ancient principle of self-divorce.[267] For it was an "act of papal encroachment" to "pluck the power and arbitrement of divorce from the master of the family, into whose hands God and the law of all nations had put it, and Christ so left it, preaching only to the conscience, and not authorizing a judicial court to toss about and divulge the unaccountable and secret reason of disaffection between man and wife, as a thing most improperly answerable to any such kind of trial." For the sake of "revenue and high authority" the "popes of Rome" have "subjected that ancient and naturally domestic prerogative to an external and unbefitting judicature." Differences "in divorce about dowries, jointures, and the like, besides the punishing of adultery," ought indeed to be referred to the magistrate; yet "against the will and consent of both parties, or of the husband alone," the "absolute and final hindering of divorce" cannot rightly "belong to any civil or earthly power." For "ofttimes the causes of seeking divorce reside so deeply in the radical and innocent affections of nature, as is not within the diocese of law to tamper with." Among such "deep and serious regresses of nature" is hate, "of all things the mightiest divider." Moreover, the lord of the family cannot go wrong in acting from such motive; "for although a man may often be unjust in seeking that which he loves, yet he can never be unjust or blamable in retiring from his endless trouble and distaste, whenas his tarrying can redound to no true content on either side."[268] All this despotic power is placed in the husband's hands for the woman's good; for it is "an unseemly affront to the sequestered and veiled modesty of that sex, to have her unpleasingness and other concealments bandied up and down, and aggravated in open court by those hired masters of tongue-fence.... It is true an adulteress cannot be shamed enough by any public proceeding; but the woman whose honour is not appeached is less injured by a silent dimission, being otherwise not illiberally dealt with, than to endure a clamouring debate of utterless things." Whether it would be well to shame the adulterer by publicity we are not informed. Power would thus be restored to the "master of the family," where it was divinely placed. For its exercise there is but one condition needful among Christian men. The repudiation should take place in "the presence of the minister and other grave selected elders." These are to "admonish" him; and he in turn is to declare solemnly by "the hope he has of happy resurrection, that otherwise than thus he cannot do, and thinks himself and this his case not contained in that prohibition of divorce which Christ pronounced, the matter not being of malice, but nature, and so not capable of reconciling." He must not be restrained further. To do so "were to unchristian him, to unman him, to throw the whole mountain of Sinai upon him, with the weight of the whole law to boot, flat against the liberty and essence of the gospel." The procedure thus provided for by Milton, remarks Jeaffreson, is a "strictly private trial in which the husband discharged the function of prosecutor, furnished the evidence, and played the part of a judge." But Milton is conscious that the denial of a reciprocal liberty to the wife may require some defense. This he supplies by a singular piece of logic, which in its effect would sanction and encourage the basest tyranny for even the vilest purposes, though he does not appear to see it.[269] "The law can only appoint the just and equal conditions of divorce," he declares, "and is to look how it is an injury to the divorced," that is to say, to the repudiated wife. But in truth, he hastens to add, "as a mere separation" it can be no injury to her; "for if she consent, wherein has the law to right her? or consent not, then is it either just, and so deserved; or if unjust, such in all likelihood was the divorcer: and to part from an unjust man is a happiness and no injury to be lamented. But suppose it be an injury, the law is not able to amend it, unless she think it other than a miserable redress, to return back from whence she was expelled, or but entreated to be gone;" or else, if not formally separated, "to live apart still married without marriage, a married widow." The circular argument is thus complete. "The poet, whose Adam prayed the Almighty to give him an equal inferior for his companion in the happy garden, does not appear to have conceived it possible for a woman in her right mind to wish to put away her lord and master."[270]

[Footnote 266: For MILTON'S theory of divorce procedure, as summarized in the text, see "Doctrine and Discipline of Divorce," Prose Works, III, 263-73. Cf. JEAFFRESON, Brides and Bridals, II, 335-38.]

[Footnote 267: SCHEURL, Das gem. deut. Eherecht, 294 ff., forcibly argues that the conception of divorce through magisterial intervention, as opposed to self-divorce, is a mark of Reformation thought. According to Luther, God speaks through the civil magistrate. Hence in case of divorce from the bond of wedlock by judicial decree it is not "man," but God himself, who parts man and wife. Therefore the command of Jesus is not broken. So here we have another illustration of the casuistry necessitated by the appeal to authority.]

[Footnote 268: Accordingly MILTON justifies Parliament and the clergy in consenting to Henry VIII.'s putting away Anne of Cleves, "whom he could not like after he had been wedded half a year."--"Doctrine and Discipline of Divorce," Prose Works, III, 266.]

[Footnote 269: Cf. JEAFFRESON'S suggestion, _Brides and Bridals_, II, 337.]

[Footnote 270: Ibid., 338. A representative Catholic writer, REV. WILLIAM HUMPHREY, S. J., defending the sacramental doctrine of marriage, transposes Milton's phrase, declaring the woman in paradise and "as she is now" to be the "subordinate equal of man."--Christian Marriage, 16.]

b) Void and voidable contracts.--It is a striking illustration of the completeness with which in social questions the English mind was dominated by theological modes of thought that no change in the law of divorce was effected until the present century. Yet there was crying need of reform. The rigid tightening of the bonds of wedlock seems to have produced its natural fruit. Immorality grew apace.[271] The lot of the married woman became harder even than before the Reformation. To the anomalies of the mediæval system, some of which survived, were added others not less harmful. Chief among them were those arising in the dualism, amounting sometimes to antagonism, subsisting between the civil and the spiritual law. Theoretically, of course, the temporal judge had no divorce competence at all. Still where dower or inheritance was involved a policy had to be defined. "Ultimately the common lawyers came to the doctrine that while the divorce a vinculo matrimonii did, the divorce a mensa et toro did not deprive the widow of dower, even though she was the guilty person."[272] Such was the law onward from the days of Edward III.[273] Earlier, according to Glanville, and apparently also according to Bracton, the woman "divorced for her misconduct can claim no dower;"[274] and even at a time when she was not deprived of dower through the fact of divorce, she might have the right to claim it taken away as a punishment for her crime, if she "eloped and abode" with her paramour.[275]

[Footnote 271: Cf. JEAFFRESON, op. cit., II, 339, 340.]

[Footnote 272: POLLOCK AND MAITLAND, Hist. of Eng. Law, II, 392: Co. Lit. , 32_a_, 33_b_, 235_a_.]

[Footnote 273: Year Book, 10 Edw. III., fol. 35 (Trin. pl. 24): POLLOCK AND MAITLAND, op. cit., II, 392.]

[Footnote 274: GLANVILLE, Tractatus, VI, 17; BRACTON, De legibus, fol. 92, 304. BRITTON, II, 264, seems to say, though his statement is somewhat confusing, that in case of divorce a mensa et thoro "if verified or not denied, the wife shall not recover any dower." Were not that interpretation of the law in the highest degree improbable, Britton's context might appear to show that such a divorce worked a complete dissolution of marriage. "In the recorded cases it is often difficult to see whether the divorce that is pleaded is a dissolution of marriage; e. g., Note Book, pl. 690. It is believed however that divortium, standing by itself, generally points to a divorce [nullification] a vinculo, e. g., in Lit. sec. 380."--POLLOCK AND MAITLAND, op. cit., II, 392 n. 5. BISHOP, Marriage, Divorce, and Separation, I, §§ 1497, 1498 n. 3, appears to think that the "effect of a divorce for adultery ... was to dissolve the marriage" bond, because the guilty woman may "not be heard upon a claim of dower" (BEAMES, Glanville, 133). But this view is surely wrong, as the researches of POLLOCK AND MAITLAND have finally established: op. cit., II, 372-95. Their results are thus summarized (373): "If however we can not argue that a woman was not married because she can not claim dower, still less can we argue that a union is a marriage because the issue of it will--or is not a marriage because the issue of it will not--be capable of inheriting English land."]

[Footnote 275: As by the statute of Westminster, II, c. 34, under Ed. I.: POLLOCK AND MAITLAND, op. cit., II, 392, 393.]

Especially disastrous in its effects was the absurd distinction, maintained after as well as before the Reformation, between void and voidable marriages.[276] This had its origin in the canonical doctrine of "putative" wedlock.[277] A union unlawful on account of some diriment impediment, such as affinity or consanguinity, was held not to be ipso facto void, but only voidable, if it had been solemnized with the proper rites of the church; and the temporal courts assumed the validity of all such marriages until they were declared null by an ecclesiastical decree. The happiness of an innocent family was thus put in jeopardy. At any moment a fatal flaw in the union might be discovered or for money invented, when pro salute animarum a separation of the parties would be enforced. In that case the canonists declared that the issue should not suffer. If one or both of the parents were ignorant of the impediment at the time the children were born, these were held to be legitimate. This rule was adopted by the secular courts in determining questions of inheritance. "As late as 1337 English lawyers still maintained that the issue of a de facto marriage, which was invalid because of the consanguinity of the parties, were not bastards if born before divorce.[278] Later, however, they developed a different doctrine which was enforced after the Reformation. Taking "no heed of good or bad faith," the temporal law even in Protestant times made the "legitimacy of the children depend on the fact that their parents while living were never divorced."[279] The persons separated for spurious wedlock were permitted to contract new marriages; but in that event they were exposed to one of the innumerable hardships caused by the fine-spun theories of the canonists. The "validity of the first marriage was always an open question, and new evidence might at any time reverse the decree. In this case the second marriage would be a nullity and the first would recover its obligatory force, so that now two separations, it might be, would be demanded by canonical law."[280] But from the reign of James I., through intercession of the temporal courts, the action for voidance of false wedlock had to be brought during the joint lives of the consorts.[281] After the death of either spouse the spiritual judge was prevented from issuing a decree. For all practical purposes the spurious marriage then became a valid marriage, and the unlawful issue became legitimate;[282] though, absurdly enough, the surviving consort might be punished for the sin of wedding within the forbidden degrees.[283]

[Footnote 276: The term "voidable" as applied to marriage is still used in various senses besides the special meaning referred to in the text. For a full discussion see BISHOP, Marriage, Divorce, and Separation, I, chap. xiii, §§ 252-92.]

[Footnote 277: See the excellent discussion of the relation of the spiritual and temporal law in cases of "putative" wedlock by POLLOCK AND MAITLAND, op. cit., II, 373 ff.]

[Footnote 278: Ibid., 375; ap. Year Book, 11-12 Ed. III., xx-xxii; for the early period see GLANVILLE, Tractatus, VI, 17; BRACTON, De legibus, fol. 63. Cf. also WOOLSEY, Divorce 124.]

[Footnote 279: POLLOCK AND MAITLAND, op. cit., II, 375 n. 3. Cf. BLACKSTONE, Commentaries, I, 440; Co. Lit., 233, 235; also GLASSON, Hist. du droit, IV, 152; BURN, Ecc. Law, II, 501_b_-501_c_.]

[Footnote 280: WOOLSEY, op. cit., 124.]

[Footnote 281: See First Report of Commissioners (affinity), 1847-48, v; also HAMMICK, Marriage Law, 32. Originally the decree might be rendered after the death of one or both of the persons, without, of course, affecting the status of the children.]

[Footnote 282: See Pride v. The Earls of Bath and Montague (1695): in 1 SALKELD'S Reports, 120, declaring that the reason why the spiritual court cannot give sentence to annul a marriage after the death of the parties is "because sentence is given only pro salute animae, and then it is too late." Cf. GEARY, Marriage and Family Relations, 10, 11; BLACKSTONE, Commentaries, I, 444; JEAFFRESON, Brides and Bridals, II, 262-64.]

[Footnote 283: Harris v. Hicks (1694): in 2 SALKELD'S Reports, 548, where such consort may be proceeded against for incest. "Our forefathers, with exquisite inconsistency, were of opinion that the survivor might (for his or her soul's good) be proceeded against and punished in a spiritual court, for having committed sin in respect of the marriage which might not be adjudged a sinful nullity."--JEAFFRESON, op. cit., II, 264. Cf. GEARY, op. cit., 10, 11, 32.]

Such remained the state of the law until the appearance of Lord Lyndhurst's act in 1835.[284] This statute declares, because "it is unreasonable that the state and condition of the children of marriages between persons within the prohibited degrees of affinity should remain unsettled during so long a period" as the joint lives of the parents, therefore "all marriages which may hereafter be celebrated between persons within the prohibited degrees of consanguinity or affinity" ought to "be ipso facto void, and not merely voidable;" and accordingly it is so enacted. With respect to existing unions of this kind a distinction is made between "affinity" and "consanguinity." Marriages within the forbidden degrees of affinity already celebrated may not "hereafter be annulled for that cause by any sentence of the ecclesiastical court," unless pronounced in a pending suit; while existing marriages within the prohibited degrees of consanguinity are not so exempt.[285] Voidable wedlock in the sense here employed[286] thus disappears from the English law, except in those minor cases where "canonical" impediments are still recognized.[287]

[Footnote 284: 5 and 6 W. IV., c. 54; also in HAMMICK, _Marriage Law_, 281. Compare HANSARD'S Parl. Debates, 3d series, XXXVIII, 203-7; XXX, 661, 662. In general, see GEARY, op. cit., 10, 11, 32; BURN, Ecc. Law, II, 501_c_-501_e_; HAMMICK, op. cit., 32, 33, 23; ERNST, Marriage and Divorce, 183, 184; LUCKOCK, Hist. of Marriage, 300-307; JEAFFRESON, op. cit., II, 264-66; BISHOP, Marriage, Divorce, and Separation, I, §§ 288, 289, 753; Tracts Issued by the Mar. Law Defence Union, II, 91-104.

The act extends to Ireland. "By the law of Scotland the distinction between void and voidable marriages was never recognized, all marriages within the prohibited degrees being void ab initio."--HAMMICK, op. cit., 33 n. a.]

[Footnote 285: This liberal exception, mainly in favor of existing unions with a deceased wife's sister, is of course denounced by writers such as LUCKOCK, op. cit., 305, as a "mischievous concession and compromise principle."]

[Footnote 286: For the special senses in which the term is used see the discussion of BISHOP, op. cit., I, §§ 252-92, already cited.]

[Footnote 287: The only surviving canonical impediment for which a marriage may be voidable, but not void, is impotence. The same principle is also applied to marriages secured by force: GEARY, op. cit., 34, 203 ff., 212; HAMMICK, Marriage Law, 48, 49.]

Lord Lyndhurst's act was especially designed to put an end to marriage with a deceased wife's sister.[288] Such unions, clearly unlawful, appear to have become very common since the age of the Stuarts.[289] For where no property or other interests were at stake a man's marriage with his sister-in-law was likely to go unchallenged until the death of husband or wife made it perfectly valid. Doubtless in such cases, through delay in "collusive suits," greedy relatives may sometimes have been prevented from securing estates which by natural justice, if not by law, belonged to the children or other heirs; for "no fresh proceedings could be initiated so long as any suit of a similar kind was pending."[290] But the avowed purpose of the act is its best justification, if the times were not ripe for a more liberal remedy. If this class of marriages could not be legalized in harmony with the practice of most other civilized peoples, it was perhaps well in this way to make an attempt to relieve their innocent offspring from the uncertainty which "hung over them sometimes for years like a sword of Damocles."[291] The attempt, however, did not prove successful. "In 1847 a Royal Commission was appointed to inquire into the state and operation of the law of marriage as relating to the prohibited degrees of affinity. In their report the commissioners state that of marriages within the prohibited degrees by far the most frequent class was that of marriage of a widower with a sister of his deceased wife, so that in fact it formed the most important consideration in the whole subject; and that as these so-called marriages will take place, especially among the middle and poorer classes, when a concurrence of circumstances gives rise to mutual attachment, the commissioners were of opinion" that Lord Lyndhurst's act "had failed to attain its object." They furthermore declare, even at this early date, that such unions are permitted, "by dispensation or otherwise, in nearly all the continental states of Europe," as well as in most of the states of the American Union.[292]

[Footnote 288: Marriage with a deceased wife's sister or a husband's brother is included in the table of forbidden degrees approved by Archbishop Parker in 1563. It purports to be based on the Levitical code; and it was accepted as the law of the English church by the ninety-ninth canon of 1603: HAMMICK, op. cit., 32 ff., 350; Tracts Issued by the Mar. Law Defence Union, I, 51 ff.]

[Footnote 289: JEAFFRESON, op. cit., II, 258-66. These marriages were called "Altona marriages" (from Altona in Denmark, where they were sometimes solemnized), and are the counterpart of the "Gretna marriages," except that the latter were valid and the former were not: ibid., II, 259, 260. The case of Brook v. Brook (House of Lords, March, 1861) grew out of a marriage celebrated near Altona, June, 1850: Tracts Issued by the Mar. Law Defence Union, II, 313 ff.]

[Footnote 290: LUCKOCK, op. cit., 303, 304, who holds that sometimes by such collusion the "ends of justice were defeated, and persons defrauded of their rights." Cf. the remarks to this effect of Lord Selborne in the House of Lords, 1873, in Tracts Issued by the Mar. Law Defence Union, II, 168.]

[Footnote 291: LUCKOCK, op. cit., 304.]

[Footnote 292: First Report of the Commission of 1847-8, v, vi, xii; HAMMICK, Marriage Law, 33 n. b; GEARY, Marriage and Family Relations, 11, 30 n. 3. See HUTH, Marriage of Near Kin, 129 n. 1.

According to the Report (viii), since the Lyndhurst act (1835) there had been 1,364 marriages within the prohibited degrees, of which nine-tenths were with a deceased wife's sister. Only in 88 cases had the act prevented an intended marriage; and of these 32 resulted in open cohabitation. Ten of the 88 cases were among the lower classes. See the epitome of evidence, xvii-xxxix; the minutes of evidence, 1-120; and the interesting letters and papers in the Appendix, 121-65.]

No legislation followed the commissioners' report. Nor, despite repeated efforts, has the perennial "deceased wife's sister's bill" ever yet become a law. It is, indeed, curious to see a noble senate capable of accepting the liberal civil marriage law of 1836 still stubbornly resisting in this particular the secularizing of marriage which a recent writer observes "is an evident accompaniment, if it is not a consequence, of the progress of democracy."[293] There "can be little doubt," adds the same author, "that the opposition to these marriages rests mainly upon theological grounds."[294] Yet even on such grounds it is hard to see why the Protestant theologian or lawgiver should retain them in the table of degrees of affinity prohibited by the code of Moses, while other provisions of that law far more clearly enjoined are rejected or ignored. "The Jews themselves maintain that this kind of marriage is not forbidden in the Old Testament, and great numbers of the most eminent Christian divines concur in their opinion."[295] The Catholic is far more consistent and liberal in this respect; for he "regards the prohibition as resting, not on direct Divine or natural law, but merely on an ecclesiastical command, and his Church therefore claims and constantly exercises the right of dispensing with it."[296] The arguments on either side of the controversy need not here be summarized. Those in favor of the prohibition rest almost wholly upon authority. Only secondarily is an attempt made to defend it on social, political, or moral grounds. For most people of the civilized world[297] the subject is already "ancient history." Hence the modern student who first takes this controversial literature in hand is amazed to find men of high repute still earnestly speaking the language of the Middle Ages; still juggling with the casuistry and quibbles which satisfied Tancred and his predecessors.[298]

[Footnote 293: LECKY, Democracy and Liberty, II, 214. There is already an immense literature relating to the question of marriage with a deceased wife's sister. The most complete bibliography of the subject is comprised in Mr. HUTH'S "Bibliography of Works on the Impediments to Marriage" appended to his Marriage of Near Kin, 393-449; also in part previously published by the Index Society, IV, 1st App. to 1st Report. In the Church Quarterly Review, XV, 426, may be found a table showing the results of the various attempts to pass the deceased wife's sister's bill during the period 1842-82.

The absurdities and anomalies of the system are described in his trenchant manner by LECKY, op. cit., II, 214-23. With his account should be read the able discussion by HUTH, op. cit., 124-26. The peculiar arguments of the opponents of a change in the law, mainly resting upon the alleged authority of the Old Testament, are best seen in the two volumes of Tracts Issued by the Mar. Law Defence Union (London, 1889); while the antidote may be found in T. PAYNTER ALLEN'S Opinions of the Hebrew and Greek Professors of the European Universities (London, 1882), prepared for the Marriage Law Reform Association. The speeches in the two houses of Parliament in 1849, 1851, 1855, 1873, 1883, 1895, and whenever a bill on the subject has been under consideration, may of course be found in HANSARD'S Parliamentary Debates; and the Report of the Royal Commission of 1848 (London, 1848) is especially important. A strong partisan in favor of the existing law is LUCKOCK, Hist. of Marriage, Part II, 213 ff., particularly 250 ff., 292 ff., 300 ff. For his and similar arguments from the standpoint of Hebrew law a partial remedy, on the homeopathic plan, is afforded by the curious essay of REV. GEORGE ZABRISKIE GRAY, Husband and Wife (2d ed., Boston, 1886). Starting with the scriptural premise that man and wife are "one flesh," not "by his becoming part of her flesh, nor by both forming a new flesh, but by her entering into his flesh," the author, arguing with an ingenuity which would have done credit to Peter Lombard in his palmiest days, reaches the triumphant conclusion that a widower may properly marry his sister-in-law. In the same way he shows that by divine intent a woman may not divorce her husband under any circumstances, for "a member can not put away the head" (90); though she may "leave" him--secure a separation a mensa et thoro--if he is "cruel or unclean" (100).

On the general controversy see especially Colloquii über die Frage: Ob Gott verboten oder zugelassen habe dass einer seines verstorbenen Weibes Schwester heyraten möge (Oettingen [1681]), 12 ff.; and KETTNER (L.F.E.), Judicia und Responsa von der Ehe mit des Weibes Schwester (Quedlinburg [ca. 1710]), 1 ff., neither of which appears in HUTH'S list; also ZEIDLER, De mat. cum defunctae uxoris sorore, published with his De polygamia (Helmstadt, 1698); and MICHAELIS Abhandlung von den Ehegesetzen Mosis (Göttingen, 1768). Among the vast number of tracts and books on the subject for England a few of the more important are KEBLE, Against Profane Dealing with Holy Matrimony (Oxford, 1849); FOSTER, Review of the Law (London, 1847); PUSEY, Letter on the proposed Change in the Laws prohib. Mar. between Near Kin (Oxford, 1842); idem, Evidence given before the Commission (Oxford, 1849); idem, God's Prohibition (Oxford and London, 1860); BINNEY, The Men of Glasgow and the Women of Scotland (London, [1850]); GIBSON, Mar. Aff. Question (Edinburgh, 1854); DUKE, The Question of Incest (2d ed., London, 1883). This question, with others, is also dealt with by FRY, The Case of Mar. between Near Kindred (London, 1756, 1773); ALLEYNE, The Legal Degrees of Mar. (London, 1774, 1775); MACRAE, Script. Law of Mar. (2d ed., Edinburgh, 1862); MEYER, Uxor christiana (Amsterdam, 1688), 2d dissertation; and KETTNER (J. J.), Zwei Abhandlungen (Leipzig, 1780), 67 ff. For discussion of related questions of kinship compare BUTLER, Marriage of Cousin Germans (Oxford, 1619); the same in Latin under the leading title Suggeneia in FLORENS, De nuptiis consobrinarum (Frankfort, 1643); DUGARD, Marriage of Cousin Germans (Oxford, 1673); JOHNSTOUN, Juridical Dissertation (London, 1734); PATON, Mar. with a Dec. Brother's Wife (London, 1869), and in general read Observations on the Mar. Laws, 126 ff.; LAWRENCE, in Revue de droit int., II, 65 ff.; JEAFFRESON, Brides and Bridals, II, 258 ff.; HAMMICK, Marriage Law, 23, 30-40; GEARY, Mar. and Fam. Rel., II, 30-32; WHARTON, Exposition of the Laws, 200, note; BISHOP, Mar., Div. and Sep., I, §§736 ff., 747, 750, 752, 753, 875 ff.; Law Mag., XXI, 371-82 (May, 1839); Quarterly Review, LXXXV, 156-82 (July, 1849); Ecc. Review, new series, II, 735-48.]

[Footnote 294: LECKY, Democracy and Liberty, II, 214, who cites "the very candid confession of the Bishop of Winchester": HANSARD'S Debates, 3d series, CCLXXX, 1671.]

[Footnote 295: LECKY, op. cit., II, 215, citing T. PAYNTER ALLEN'S pamphlet already mentioned. There is a weak criticism of this work in the Tracts Issued by the Mar. Law Defence Union, I, 177-96. On its high authority see HUTH, Mar. of Near Kin, 129.

"It is certain that the Old Testament does not directly condemn such marriages, and it is very doubtful whether it condemns them even by inference. It is not at all doubtful that it sanctions, and sometimes eminently blesses, polygamy; that it strictly enjoins that, in every case of adultery, both parties should be put to death; that it makes it a capital offence for a man to have intercourse with a woman who, though unmarried, was betrothed to another; that it commands that a man who had defiled an unbetrothed virgin should be compelled to marry her; that it forbids marriage with aliens in religion; that it not only permits, but enjoins a man to marry the widow of his deceased brother if she had no children, or only daughters, which could scarcely be the case if such marriages of affinity were in their own nature incestuous. It is not easy to understand the process of mind which, among all these provisions of the Jewish code, selects a very doubtful inference condemnatory of marriage with the deceased wife's sister as alone binding on the conscience of the Imperial Parliament."--LECKY, op. cit., II, 216, 217.]

[Footnote 296: LECKY, op. cit., II, 215; cf. ALLEN, Opinions, 36.]

[Footnote 297: Russia appears to be the only important European exception: HUTH, op. cit., 130, 131.]

[Footnote 298: For abundant proofs of what Mr. Lecky would call the "insularity" of the English mind in this regard, see the mass of matter--letters, speeches, and declarations of prelates, noblemen, and private persons--contained in that marvelous monument of mediævalism, the two volumes of Tracts Issued by the Mar. Law Defence Union. Mr. Gladstone's speeches are a conspicuous example: ibid., II, 174 ff.]

The nature of the problem and the way it is conceived by the English theological mind are thus strongly stated by Lecky in the fine paragraph with which he closes his interesting discussion of these marriages: "It would be difficult to overstate the extravagance of the language which has been sometimes employed in England by their opponents. One gentleman, who had been Lord Chancellor of England, more than once declared that if marriage with a deceased wife's sister ever became legal 'the decadence of England was inevitable,' and that, for his part, he would rather see 300,000 Frenchmen landed on the English coasts.[299] Pictures have been drawn of the moral anarchy such marriages must produce, which are read by American, colonial, and continental observers with a bewilderment that is not unmixed with disgust, and are, indeed, a curious illustration of the extreme insularity of the English mind. The truth seems to be that there are cases in which the presence of a young and attractive sister-in-law in a widower's house would, under any system of law, produce scandal. There are others where, in all countries, a sister-in-law's care and presence would seem natural. There are cases where every murmur is silenced by the simple consideration that the two parties are at perfect liberty to marry if they please. Experience--the one sure guide in politics--conclusively shows how quickly the best public opinion of a country accommodates itself to these marriages; how easy, natural, and beneficent they prove; how little disturbance of any kind they introduce into domestic relations. They will long be opposed on the ground of ecclesiastical traditions, and apart from all considerations of consequences, by a section of theologians in England, in America, and in the Colonies. Those who consider them wrong should abstain from contracting them, and a wise legislature will deal gently with the scruples of objecting clergymen, as it has done in the case of the marriage of divorced persons. But the law of the land should rest on other than ecclesiastical grounds, and a prohibition that has no foundation in nature or in reason is both unjust and oppressive. It is not for the true interests of morals or of family life that the law should brand as immoral, unions which those who contract them feel and know to be perfectly innocent, and which are fully sanctioned by the general voice of the civilised world, by an overwhelming majority of the English race, by a great and steadily increasing weight of public opinion at home, and by repeated majorities in the House of Commons. In an age when most wise and patriotic men desire that the influence and character of the Upper House should be upheld and strengthened, few things can be more deplorable than that this House should have suffered itself to be made the representative of a swiftly vanishing superstition, the chief instrument in perpetuating a paltry and an ignoble persecution."[300]

[Footnote 299: HANSARD, 3d series, CCLXXX, 1675. This was Lord Hatherley: see Tracts Issued by Mar. Law Defence Union, II, 161, 162, where he repeats the statement. Compare the views of the bishop of Exeter, in the same Tracts, I, 19, who predicts an orgy of incest if the law be changed: "At the present, no doubt, there is a strong natural instinct against the marriage of a man with his own mother. It is awful to think of. The marriage of a man with his own blood sister is fearful. But this instinctive protection of our domestic purity, how far does it go if we begin to pare the edges off." The Metropolitan (1880) indulges in like forebodings: ibid., I, 97, 98.]

[Footnote 300: LECKY, Democracy and Liberty, II, 221-23.]

c) Parliamentary divorce.--More than twenty years were yet to pass before the appearance of the first English statute providing for divorce through regular civil process. Proximately the act of 1857 owes its origin to the anomaly of parliamentary divorce, whose glaring inconsistency but served to accent the evils fostered by the canons of 1603. In theory marriage continued to be absolutely indissoluble. Only by giving bond not to marry again could a person secure even a judicial separation. No matter how grave the offense, or how notorious the breach of the nuptial vow, the parties in most legal respects were chained for life. At most they might be suffered to dwell apart. Obviously the proper remedy would have been a general law of civil divorce whose benefits should be placed within the easy reach of rich and poor alike. Instead, a resort was had to special acts of Parliament whose advantages could be enjoyed only by a fortunate class.[301] The practice originated in the last years of the seventeenth century, though it may have been suggested by prior instances of legislative intervention in matrimonial questions. As early as 1436 a marriage obtained by force was declared void.[302] More clearly analogous is the opposite case of Lord Northampton, already mentioned, whose second marriage after decree of separation was pronounced valid in 1552. This, however, is not an instance of parliamentary divorce.[303] Nor, strictly speaking, is that of Lord Roos in 1670, which Macqueen regards as the first "genuine example;" for the bill is entitled merely "an act for John Manners, called Lord Roos, to marry again;" and does not as alleged expressly effect a "rescission of the contract."[304] The earliest clear precedents are the case of the Earl of Macclesfield in 1698 and that of the Duke of Norfolk, two years later, in each of which the act provides for a dissolution of marriage.[305] Ultimately (1798) a standing order of the House of Lords requires that "all bills of divorce shall be preceded by a sentence of separation a mensa, issuing out of the ecclesiastical court;"[306] and usually such bills must be preceded also by the action at law against the guilty paramour for damage.[307] Thus a vast power was placed in the hands of the spiritual courts to hinder an aggrieved husband or wife from resorting to Parliament for redress. This fact is illustrated in the history of the cases already cited. Lord Roos had previously secured a decree of separation, no mention being made of an action for damage. In Lord Macclesfield's case the bill for divorce was sustained neither by a judgment at law nor by an ecclesiastical sentence. For "in consequence of the skilful opposition set up by the countess in the spiritual courts, and the narrow antiquated maxims which there prevailed, she contrived to baffle all her husband's efforts to obtain a sentence of divorce à mensâ et thoro. The circumstances of the case, however, were so scandalous and flagrant, that it would have been an outrage upon every principle of justice to withhold relief." In like manner for seven years the Duke of Norfolk tried in vain to obtain a decree of separation, although he "recovered damage at law from the adulterer, Sir John Jermayne."[308] But in no other case save these two has there been a successful resort to Parliament without first obtaining the sentence of an ecclesiastical judge;[309] and the clumsy, almost farcical, nature of the procedure in divorce suits may be more fully appreciated when it is borne in mind that an aggrieved spouse desirous of securing a divorce from a guilty partner through an act of Parliament was compelled, before he could "get through the ecclesiastical courts, to pledge himself not to remarry."[310]

[Footnote 301: The only special work on parliamentary divorce is that contained in MACQUEEN'S Practical Treatise, 463-68, comprising a clear historical "Introduction;" the "Action at Law;" the "Petition and Bill;" the "General Preparation of the Case;" the "Second Reading and Subsequent Proceedings;" and an interesting "Selection of Leading Cases." See also Law Review, I, 362 ff.; LECKY, Democracy and Liberty, II, 200-202; GEARY, Marriage and Family Relations, 17, 18; HAMMICK, Marriage Law, 18; SHELFORD, Law of Marriage and Divorce, 373-79; BISHOP, Marriage, Divorce, and Separation, I, §§ 1422 ff.; WOOLSEY, Divorce, 172-74; JEAFFRESON, Brides and Bridals, II, 340-44; LUCKOCK, Hist. of Marriage, 178-81; WHARTON, Exposition of Laws Relating to Women, 471-84; GLASSON, Le marriage civil et le divorce, 318, 319; BURN, Ecc. Law, II, 503_b_, 503_c_; HIRSCHFELD, "The Law of Divorce in England and in Germany," Law Quarterly Review, XIII, 398, 399; MONTMORENCY, "The Changing Status of a Married Woman," ibid., 191; Plea for an Alt. in the Divorce Laws, 5 ff.; SCRIBNER, Treatise on the Law of Dower, II, 542 ff.; and especially the full account by MORGAN, Marriage, Adultery, and Divorce, II, 237-313.]

[Footnote 302: GEARY, Marriage and Family Relations, 17: _Rot. Parl._, 15 H. VI, Nos. 14, 15.]

[Footnote 303: MACQUEEN, Practical Treatise, 469. Cf. n. 4, p. 80, above.]

[Footnote 304: The act, being private, was never printed in the collections of statutes; but a writer in the Law Review, I, 363 n. 1, publishes it from the "House copy in the parliament office." Cf. MACQUEEN, op. cit., 471-73, 551-61, who discusses the case, giving Bishop Cozen's argument, but he does not appear to have had a copy of the statute before him. See EVELYN, Diary (London, 1878), II, 49 n. 3, who declares that the Roos divorce bill was carried under influence of corrupt political motives; and he is followed by KEBLE, Sequel to the Argument, 212 ff.; and MORGAN, Marriage, Adultery, and Divorce, II, 237 ff. For a number of instructive details relating to this case, extending over the years 1662-70, taken from the manuscripts of the House of Lords, see Reports of Hist. MSS. Com., VII, 165, 166; VIII, 102_a_, 117_a_, App. I, 141_a_; XII, App. V, 8; App. VII, 69. The last entry runs: "1669, March 14. News letter. Lord Roos presses for liberty to marry again, urging precedent of Marquess of Northampton. All the bishops oppose except the B. of Durham." It is here noted that the act finally passed April 11, 1670; 22 Car. II., 1, Private Acts. The case gave rise to The Case of Divorce and Re-Marriage thereupon (London, 1673), in which a "Reverend Prelate of the Church of England" denies, and a "private Gentleman" maintains, the right of remarriage on scriptural authority.]

[Footnote 305: On these two cases see MACQUEEN, op. cit., 473, 562-76; and Law Review, I, 364. The proceedings in the Norfolk case are contained in Vol. II, 59-324, appended to ARCHBISHOP ABBOT'S The Case of Impotency; also in HOWELL'S State Trials, XII, 883-948; and in part in the Reports of Hist. MSS. Com., XIV, 17-27, 278, where, in addition, arguments of the counsel are given. Sir W. Williams, counsel for the duchess, calls this case the "first precedent."]

[Footnote 306: MACQUEEN, op. cit., 474, 496; LUCKOCK, Hist. of Marriage, 179, note; WHARTON, Exposition of Laws rel. to Women, 471, 472; MORGAN, Marriage, Adultery, and Divorce, II, 244 ff. The "earliest specimen of a dissolving statute passed by the Legislature, after sentence of divorce in the ecclesiastical court" is the "Act to dissolve the marriage of Ralph Box with Elizabeth Eyre, and to enable him to marry again," 1701. This form was followed ever after: Law Review, I, 364, 365.]

[Footnote 307: Since about 1800: MACQUEEN, op. cit., 489. Cf. WHARTON, op. cit., 472, 483; GLASSON, Le marriage civil et le divorce, 318. For examples of these actions for "criminal conversation" see Cases of Divorce (London, 1715), 1 ff. (Feilding), 41 ff. (Dormer); and Crim. Con. Actions and Trials, 10 ff., containing a good historical introduction.]

[Footnote 308: Law Review, I, 364; MACQUEEN, op. cit., 473.]

[Footnote 309: MACQUEEN, op. cit., 550.]

[Footnote 310: Plea for an Alt. in the Divorce Laws, 5, referring to the security required by the canons of 1603.]

In consequence of the standing order of the House of Lords, Parliament was unable to grant relief, except on the one ground of conjugal infidelity; for the spiritual court declined to issue a decree of separation for malicious desertion, unless in connection with acts of cruelty.[311] "On a retrospect of one hundred and seventy years, since the establishment of the system of parliamentary divorce a vinculo," says Macqueen, writing in 1842, "I find no case in which that remedy has been awarded or sought, without a charge of adultery. There is no example of a bill of divorce for malicious desertion," although from the Reformation onward this has been a clearly recognized ground for dissolution of wedlock in other Protestant lands.[312] Furthermore, with respect to the rights of the wife Parliament was more illiberal than the spiritual courts themselves, refusing, even after the ecclesiastical sentence of separation, to free her from a dissolute husband, unless his offense were attended by "aggravating" conduct, such as cruelty. In no case was the woman granted relief merely for the husband's unfaithfulness, however flagrant and shameless his conduct might be. Indeed, for the entire period during which the practice existed, there were but three or four examples of legislative divorce at the instance of a woman, and in each case the man's infidelity was attended by other offenses.[313] In two other cases the bill of the wife was rejected by the Lords, although the grievous wrong which she had suffered was established by the clearest proof.[314] Parliament appears to have accepted the view of Dr. Johnson that there is a "boundless" difference between the infidelity of the man and that of the woman. In the husband's case, according to that philosopher, there is no danger of a "confusion of progeny;" and this, he says, "constitutes the essence of the crime."[315] Therefore, "wise married women don't trouble themselves" about such mere peccadilloes.[316]

[Footnote 311: HAGGARD, Consistory Reports, 120; MACQUEEN, op. cit., 474.]

[Footnote 312: MACQUEEN, op. cit., 473, 474.]

[Footnote 313: The first three cases are those of Mrs. Addison, 1801; Mrs. Turton, 1831; and Mrs. Battersby, 1840: MACQUEEN, op. cit., 474-80, 594-98, 657, 658; also Law Review, I, 371; and LECKY, Democracy and Liberty, II, 200, 201. There appears to have been a fourth case: GEARY, Marriage and Family Relations, 18; and in several instances Parliament interfered by bill to nullify marriage or to grant separation a mensa: MACQUEEN, op. cit., 475, note.]

[Footnote 314: The cases of Tewsh, 1805; and Mrs. Moffat, 1832: MACQUEEN, op. cit., 480, 482, 602-4, 658-60. These are discussed in Law Review, I, 371-74. Lord Chancellor Brougham opposed Mrs. Moffat's bill; but later he took the opposite and more liberal view: BROUGHAM, Speeches, III, 446.]

[Footnote 315: "He said, confusion of progeny constitutes the essence of the crime; and therefore a woman who breaks her marriage vow is much more criminal than a man who does it. A man, to be sure, is criminal in the sight of God, but he does not do his wife any material injury if he does not insult her; if, for instance, he steals privately to her chambermaid. Sir, a wife ought not greatly to resent this. I would not receive home a daughter who had run away from her husband on that account. A wife should study to retain her husband by more attention to please him."--BOSWELL, Life of Johnson, III, 46 (ed. 1835). Some recent writers, who ought to know better, indulge in similar sophistry; cf. NISBET, Marriage and Heredity, 18 ff.; AP RICHARD, Marriage and Divorce, 25, 34, 35.]

[Footnote 316: BOSWELL, Life of Johnson, VII, 288. For discussion of Dr. Johnson's philosophy see JEAFFRESON, Brides and Bridals, I, 338, 339; II, 278-88; MACQUEEN, op. cit., 482, 483; Law Review, I, 369, 370.]

The sphere of parliamentary divorce was greatly narrowed in still other ways. As a matter of fact, for the century and a half during which the practice prevailed perhaps not more than two hundred such separations were granted.[317] In the first place, the rules of evidence observed in the spiritual courts tended to thwart justice even in cases of the most cruel and scandalous wrongs. Two witnesses were invariably required; whereas in the lay tribunals one witness is accepted as sufficient when no more can be had.[318] On such testimony, for instance, damage may be awarded in the suit at law for adultery, when the same evidence is rejected as insufficient in the ecclesiastical action for separation. Yet it is precisely in cases of adultery that a "penuria testium is most likely to occur. To require two witnesses of facts almost necessarily secret is, in most cases, to ensure a denyal of justice. Of this constant examples are to be found in the records of the ecclesiastical courts."[319]

[Footnote 317: Sixty between 1715 and 1775; 14 between 1775 and 1780; 110 between 1800 and 1852: GEARY, _Marriage and Family Relations_, 18; MORGAN, Marriage, Adultery, and Divorce, II, 239, 240; Report of Commission (divorce), 1852-53.]

[Footnote 318: "One witness (if credible) is sufficient evidence to the jury of any single fact, though undoubtedly the concurrence of two or more corroborates the proof. Yet our law considers that there are many transactions to which only one person is privy; and therefore does not always demand the testimony of two which the civil [and ecclesiastical] law universally requires. 'Unius responsio testis omnino non audiatur.' To extricate itself out of such absurdity, the modern practice of the civil law courts has plunged itself into another. For, as they do not allow a less number than two witnesses to be plena probatio, they call the testimony of one, though never so clear and positive, semi-plena probatio only, on which no sentence can be founded. To make up, therefore, the necessary complement of witnesses, when they have one only to a single fact, they admit the party himself (plaintiff or defendant) to be examined in his own behalf; and administer to him what is called the suppletory oath; and if his evidence happens to be in his own favour, this immediately converts the half proof into a whole one."--BLACKSTONE, Commentaries, III, 370. Cf. also BISHOP, Marriage, Divorce, and Separation, II, § 456; Law Review, I, 378, 379.]

[Footnote 319: Law Review, I, 379, 380. See the illustrative case of Evans v. Evans in Notes of Cases in Ecc. and Mar. Courts, II (1842-43), 470-76. Cf. BISHOP, op. cit., I, § 1532; BURN, Ecc. Law, II, 503_e_-503_g_.]

Again, the relief granted by Parliament was effectively placed beyond the reach of all save the plutocracy. The triple cost of the law action, the ecclesiastical decree, and the legislative proceedings was enormous. How utterly the luxury of divorce was placed beyond the wildest dreams of the poor man clearly appears when one understands that it could be obtained only through the expenditure of a fortune sometimes amounting to thousands of pounds.[320] The shameful injustice of the system has never been so vividly brought out as in the often-quoted words of Justice Maule in a case tried before him in 1845: "The culprit was a poor man who had committed bigamy. The defence was that when the prisoner married his second wife he had in reality no wife, for his former wife had first robbed, and then deserted him, and was now living with another man. The judge imposed the lightest penalty in his power, but he prefaced it with some ironical remarks which made a deep and lasting impression. Having described the gross provocation under which the prisoner had acted, he continued: 'But, prisoner, you have committed a grave offence in taking the law into your own hands and marrying again. I will now tell you what you should have done. You should have brought an action into the civil court, and obtained damages, which the other side would probably have been unable to pay, and you would have had to pay your own costs--perhaps 100 l. or 150 l. You should then have gone to the ecclesiastical court and obtained a divorce a mensa et thoro, and then to the House of Lords, where having proved that these preliminaries had been complied with, you would have been enabled to marry again. The expenses might amount to 500 l. or 600 l. or perhaps 1000 l. You say you are a poor man, and you probably do not possess as many pence. But, prisoner, you must know that in England there is not one law for the rich and another for the poor.'"[321]

[Footnote 320: According to the writer in the Law Review, I, 367, two thousand pounds is not an overcharged estimate. "In some cases even the preliminary proceedings in Doctors' Commons will cost nearly as much. From the evidence of Mr. Swaby, the Registrar of the Admiralty Court, before the Select Committee, p. 33, it appears that even in an ordinary litigation, with moderate opposition, and where the witnesses are at hand, the expense of obtaining a definitive sentence of divorce à mensâ may reasonably amount to 1700 l.; and this merely to lay a foundation for the proceedings before Parliament, and quite independently of the action at law. It is well known that Lord Ellenborough's divorce cost 5000 l."--Ibid., 367 n. 6. At the same time the cost of a divorce a vinculo in Scotland was only 25 l.: ibid., 367, 368. But in the Evidence before the Select Committee of the House of Lords, 1844, 39, the expense of getting a full divorce is then put at about 800 or 900 pounds.]

[Footnote 321: LECKY, Democracy and Liberty, II, 201, 202; also cited by JEAFFRESOn, Brides and Bridals, II, 342, 343, note. For this case see MORGAN, Marriage, Adultery, and Divorce, II, 234-313.

On the law before 1857 see POYNTER, Doctrine and Practice of Ecc. Courts in Doctors' Commons, 68 ff. Against the proposed alteration is KEBLE, Sequel of the Argument against immediately repealing the Laws which treat the Nuptial Bond as indissoluble (Oxford, 1857), 196-220; while strongly in favor of a reform are the anonymous authors of Plea for an Alt. in the Divorce Laws (London, 1831), 1 ff.; and Observations on the Marriage Laws (London, 1815); as well as much earlier SALMON, Crit. Essay Concerning Marriage (London, 1724), 109 ff.]

d) The present English law.--It is, indeed, wonderful that a great nation, priding herself on a love of equity and social liberty, should thus for five generations tolerate an invidious indulgence, rather than frankly and courageously to free herself from the shackles of an ecclesiastical tradition! But even in England, so far as the state is concerned, the dogma that marriage is an indissoluble bond has finally run its course. A partial remedy for the scandals and hardships of the existing system was at last grudgingly provided in the civil divorce law of 1857. By this act,[322] which during a whole session of Parliament was stubbornly resisted, mainly on religious grounds,[323] the entire jurisdiction in matrimonial questions hitherto belonging to the spiritual courts, except "so far as relates to the granting of marriage licences," is transferred to a new civil "Court for Divorce and Matrimonial Causes;" and since 1873 this tribunal has given place to the "Probate, Divorce, and Admiralty Division" of the "High Court of Justice."[324] It is "a court for England only," its competence not extending to Ireland, Scotland, or the Channel Isles.[325]

[Footnote 322: 20 and 21 Vict., c. 85: Statutes at Large, XCVII, 532-46. In general on the present English law of divorce see GLASSON, Le mariage civil et le divorce, 317-27; HARRISON, The Laws of Probate and Divorce, 115 ff.; GEARY, _Marriage and Family Relations_, 237-430; BROWNING, Practice and Procedure, 1 ff.; LECKY, Democracy and Liberty, II, 202 ff.; THWING, _The Family_, 194; ERNST, Marriage and Divorce, 55 ff.; WOOLSEY, Divorce, 174-78; GLASSON, Hist. du droit, VI, 177-84; NEUBAUER, "Ehescheidung im Auslande," ZVR., VII, 297-99; Montmorency, "The Changing Status of a Married Woman," _Law Quart. Rev._, XIII, 189-92; HIRSCHFELD, "The Law of Divorce in England and in Germany," ibid., XIII, 399-405.]

[Footnote 323: HANSARD'S Parl. Debates, 3d series, CXLIV-VIII. "The discussions on the subject were curious as showing how powerfully, even to that late period, theological methods of thought and reasoning prevailed in the British Legislature. There were speeches that would seem more in place in a church council than in a lay Parliament."--LECKY, Democracy and Liberty, II, 202.]

[Footnote 324: 36 and 37 Vict., c. 66, secs. 16, 31.]

[Footnote 325: See GEARY, Marriage and Family Relations, 238 ff., for the jurisdiction and procedure of these courts. Cf. also HARRISON, The Laws of Probate and Divorce, 191 ff.]

By the law of 1857, supplemented in various ways through subsequent statutes, three forms of separation are recognized. First, on petition of either consort the court is empowered to grant a complete dissolution of wedlock; but in this respect the provisions of the act are conceived in the same narrow spirit that actuated the policy of legislative divorce. The woman is treated with precisely the same injustice. For while the husband may secure an absolute divorce on account of the simple adultery of the wife, the wife is unable to free herself from an unfaithful husband unless his infidelity has been coupled with such cruelty as "would have entitled her to a divorce a mensa et thoro;" or "with desertion, without reasonable cause, for two years and upwards;" or with certain other aggravating offenses.[326] Friends and enemies of the bill alike joined in condemning the unequal position in which man and wife were placed. Gladstone, who tenaciously resisted the act on theological grounds, declared: "If there is one broad and palpable principle of Christianity which we ought to regard as precious it is, that it has placed the seal of God Almighty upon the equality of man and woman with respect to everything that relates to these rights."[327] On the other hand, the attorney-general, who introduced the measure, found it necessary to apologize for this defect. "If this bill," he says, "were thrown aside and the whole law of marriage and divorce made the subject of inquiry, I should be the last man to limit the field of discussion or to refuse to consider a state of law which inflicts injustice upon the women most wrongfully and without cause, and which may be considered opprobrious and wicked;" moreover, he continues, the "present bill need not be the end-all of legislation upon the subject."[328]

[Footnote 326: 20 and 21 Vict., c. 85, sec. 27: _Statutes at Large_, XCVII, 537. But various "absolute" or "discretionary" bars may be pleaded against a decree. On these see GEARY, op. cit., 267-304; HARRISON, op. cit., 130 ff.; WOOLSEY, Divorce, 175.]

[Footnote 327: HANSARD, Parl. Debates, 3d series, CXLII, 394 ff. See the suggestive paper of HIRSCHFELD, "The Law of Divorce in England and in Germany," Law Quart. Review, XIII, 400-403, giving illustrative passages from the debates relating to the unfair treatment of the wife.]

[Footnote 328: HANSARD, op. cit., 3d series, CXLVII, 1545.]

In judicial practice, however, the terms "cruelty" and "desertion" have acquired a rather broad meaning.[329] In particular through the doctrine of "constructive" and "moral" cruelty there is a "strong tendency to equalize the positions of the two" sexes.[330] Nevertheless, the woman is still in a relatively unfavorable position; and the sphere of divorce a vinculo is exceedingly narrow. There are doubtless many other causes besides infidelity for which the welfare of society and the happiness of individuals require that marriage may be dissolved. "It is a scandal to English legislation," observes Lecky, that divorce "should not be granted when one of the partners has been condemned for some grave criminal offence involving a long period of imprisonment or penal servitude, or for wilful and prolonged desertion, or for cruelty, however atrocious, if it is not coupled with adultery. In all continental legislations which admit divorce a catalogue of grave causes is admitted which justify it."[331]

[Footnote 329: Thus adultery, if long persisted in, ripens into "desertion." For a detailed discussion of "cruelty" and "desertion" according to definition and judicial precedent, and particularly on "constructive" and "moral" cruelty, see GEARY, op. cit., 323 ff., 330 ff. Cf. BISHOP, Marriage, Divorce, and Separation, I, §§ 1524 ff., especially 1532; HARRISON, op. cit., 138 ff.]

[Footnote 330: "From the meaning of pain inflicted on the body it [cruelty] has in recent years attained the extended meaning that includes pain inflicted on the mind. Coldness and neglect may now almost of themselves constitute such cruelty as, coupled with misconduct, will give the right of divorce. The time may very reasonably be looked forward to when almost every act of misconduct will in itself be considered to convey such mental agony to the innocent party as to constitute the cruelty requisite under the Act of 1857. The difference already is very marked when we compare the 'cruelty' of today with the thrashing by the husband that constituted cruelty thirty years ago. Probably in those days the doctrine of a husband's right to administer physical correction to his wife was not entirely discredited. Today it is possible for a woman, with celerity and at little cost, to separate herself from her husband if she be able to prove that he is either a brute or a monster. Forty years ago the vast majority of women were indissolubly tied to their husbands though the whole world knew them to be both brutes and monsters. It is a great change in a short period."--MONTMORENCY, "The Changing Status of a Married Woman," Law Quart. Review, XIII, 191, 192.]

[Footnote 331: LECKY, op. cit., II, 202, 203.]

While depriving the ancient spiritual tribunals of the monopoly of matrimonial jurisdiction which they had so long possessed, Parliament made a proper concession to the scruples of the regular clergy. By the act a divorced person, whether guilty or innocent, is permitted to marry again if he likes; but a clergyman of the "United Church of England and Ireland" is not compelled to solemnize the marriage. Should he refuse, however, he cannot legally prevent a brother-minister of the establishment from using his church or chapel for the celebration; and this last provision has in our own day become a standing grievance on the part of those who denounce such a celebration as a "defilement" of the sanctuary.[332]

[Footnote 332: Read, for instance, the complaint of Right Rev. G. F. Browne, bishop of Stepney, in his Marriage of Divorced Persons in Church: Two Sermons Preached in St. Paul's Cathedral on Feb. 16 and 23, 1896. The author seems to pine for the good old days before the act of 1857 when "things were different;" when, thanks to the singular merits of the old system, the "difficulty and cost of a special Act" of Parliament made separations a vinculo very few; when that evil statute had not yet caused a "horrible familiarity with the idea of divorce" (42). Compare LUCKOCK, Hist. of Marriage, 197-209, who likewise laments the desecration of the church through the celebration of the marriage of divorced persons; while he also condemns the alleged "connivance on the part of the Church of England" in the violation of the doctrine of indissolubility through the "issue of licences to divorced persons to remarry from Diocesan Registrars, ostensibly with the sanction of our own Bishops." He gives extracts from the Report of the lower house of the York Convocation (1894), which denounces the two practices mentioned, as also the "admission of persons who have entered into such unions to Holy Communion." Technically such a license is a "dispensation" which the bishop may refuse. It is often refused, as in the "Instructions issued to Surrogates in the Diocese of Lichfield": HAMMICK'S Marriage Law, 362, and n. a. On these questions see GEARY, Marriage and Family Relations, 577-93, giving extracts from the proceedings of the Lambeth Conference, (1888), and the Convocation of Canterbury at various times, as also from the opinions of individual bishops and ministers.]

The act of 1857 directs that, before granting a decree, the court shall "satisfy itself, so far as it reasonably can, not only as to the facts alleged," but also whether there has been any collusion between the petitioner and either of the respondents, or whether there is any bar or counter-charge against the petitioner.[333] But no special procedure was created for making the inquiry suggested, "nor could a stranger without any legal private interest intervene."[334] The necessary machinery for that purpose was provided by the Matrimonial Causes Act[335] of 1860, which rests upon the theory "that the public is interested in seeing that no marriage is dissolved except on certain grounds."[336] Two distinct stages in the proceedings for a dissolution of wedlock are prescribed. If a sentence of divorce be rendered, it must always in the first instance be a decree nisi. Only after an interval of six months, unless a shorter time be set by the court, can such a decree be made absolute. In the meantime, the queen's proctor, or any member of the public, whether interested in the suit or not, may "intervene" to show collusion or the suppression of material facts;[337] and in case of such intervention the court shall deal with the cause "by making the decree absolute, or by reversing the decree nisi," or by conducting further examination, as "justice may require."

[Footnote 333: 20 and 21 Vict., c. 82, secs. 29-31: _Statutes at Large_, XCVII, 538.]

[Footnote 334: So decided in Y. v. Y. (1860): 1 SWABEY AND TRISTRAM, Reports, 598-600; GEARY, op. cit., 249, 261.]

[Footnote 335: 23 and 24 Vict., c. 144. For the discussion of the bill see HANSARD, Parl. Debates, 3d series, CLX, 1628-31, 1734-42. Cf. also GLASSON, Le mariage civil et le divorce, 322 ff.; GEARY, op. cit., 261 n. 6; HARRISON, _The Laws of Probate and Divorce_, 141 ff.]

[Footnote 336: Lord Hannen, in the celebrated case of Crawford v. Crawford (1886), 11 P. D., 150-58, where the queen's proctor is allowed to intervene to prove a previous decision unjust. See also GEARY, op. cit., 257 n. 2, 262, where this case is summarized.]

[Footnote 337: 23 and 24 Vict., c. 144, sec. 7. The "intervener cannot be the respondent, or any one actually instigated by him or her, or his or her nominee; but the mere fact that the intervener may be (as he usually is) the friend or relative of the respondent is no objection."--GEARY, op. cit., 263, 264: Howarth v. Howarth (1884), 9 P. D., 218-31; Forster v. Forster (1863), 3 SWABEY AND TRISTRAM, Reports, 158-60. The queen's proctor may intervene as one of the public. Only the petitioner can apply to have a decree nisi made absolute, but in long default of such application the respondent may ask to have the petition dismissed. Decrees nisi "only apply to petitions for dissolution of marriage and not to judicial separations, restitution of conjugal rights, or jactitation;" but by 36 Vict., c. 31, they do apply to nullity suits: GEARY, op. cit., 249, 250 nn. 355, 356.]

Secondly, the present English law allows a decree for "judicial separation" with the "same force and the same consequences" as the former sentence of divorce a mensa et thoro, which is abolished by the act of 1857.[338] To such a decree either the husband or the wife is entitled on the ground of adultery, cruelty, or two years' desertion;[339] provided no legal bar to the petition such as condonation, cruelty, or a separation deed, be established. At the prayer of the petitioner, or when the evidence is insufficient to warrant a decree of complete divorce, a judicial separation may be granted in a suit brought for dissolution of marriage.[340] After such separation the wife is considered as a feme sole with respect to property, contracts, wrongs, suing and being sued; and her husband is not liable for her engagements.[341] In place of the old action at law for "criminal conversation" a prayer for damage against the wife's paramour may be joined with the petition for judicial separation or for dissolution of wedlock; or the aggrieved husband may make separate application for indemnity.[342] Adultery thus becomes a mere "private injury" and not a crime. The damage recovered may be "applied by the court for the benefit of the children of the marriage or for the maintenance of the wife." When the wife is the guilty person and is entitled to property in possession or in reversion, the court, at its discretion, may settle "such property, or any part of it, on the innocent party, or on the children of the marriage."[343] The rules, principles, and procedure observed in the old ecclesiastical courts are to be followed by the civil judge in a suit for judicial separation except as otherwise provided by statute.[344]

[Footnote 338: 20 and 21 Vict., c. 85, secs. 7, 16, 23, 25, 26: Statutes at Large, XCVII, 533, 534, 536, 537. On the law for judicial separation see GEARY, op. cit., 352-59; HARRISON, The Laws of Probate and Divorce, 148-53; WOOLSEY, Divorce, 175.]

[Footnote 339: By the Matrimonial Causes Act of 1884, 47 and 48 Vict., c. 68, sec. 5, failure to respond to a decree for restitution of conjugal rights, even for a less time than two years, is made equivalent to desertion.]

[Footnote 340: GEARY, op. cit., 353, 354.]

[Footnote 341: Except when alimony has been decreed and is in arrear the husband is liable for necessaries furnished his wife: 20 and 21 Vict., c. 85, secs. 25, 26: Statutes at Large, XCVII, 537. Cf. HARRISON, op. cit., 152, 153; GEARY, op. cit., 424.]

[Footnote 342: 20 and 21 Vict., c. 85, sec. 33: _Statutes at Large_, XCVII, 539. Cf. Mason v. Mason (1883), 8 P. D., 21-23, C. A.; also WOOLSEY, Divorce, 177; GEARY, op. cit., 354, 255-61; HARRISON, op. cit., 182, 183.]

[Footnote 343: WOOLSEY, Divorce, 177; 20 and 21 Vict., c. 85, secs. 33, 45: Statutes at Large, XCVII, 539, 541.]

[Footnote 344: 20 and 21 Vict., c. 85, sec. 22: _Statutes at Large_, XCVII, 536; cf. also HARRISON, op. cit., 117.]

In the third place, by the existing law provision is made for what is commonly called "magisterial separation." The "separation order," presently to be considered, is one of several remedial devices introduced by various statutes in the injured wife's behalf. Thus the act of 1857 enables a woman deserted by her husband to apply to a local court of summary jurisdiction, or, if she prefer, to the high divorce court of the kingdom, for an order to protect her subsequently acquired earnings or property from being seized by him or any of his creditors.[345] By this "protection order" the wife is to be in the same position as to property and contracts, suing and being sued, as if she had obtained a decree of judicial separation.[346] In all respects she is treated as a feme sole. For a number of years after it was first introduced the protection order was a means of real redress; for then, according to the principles of the barbarous laws of the Middle Ages which still survived, a married woman without settlements had practically no property rights at all during her husband's lifetime. Her landed property at marriage passed into his control; her chattels and personal effects of every description became absolutely his; and she had no legal power to dispose even of the wages of her own toil.[347] The protection order merely gave the wife her own, preventing the man who had basely abandoned her without making any provision for her support from appropriating the wages or the property which she might thereafter gain. More than this it did not do. "So to a poor wife a protection order was but little, if any, advantage, and now seems absolutely useless. For it did not relieve her from cohabitation, it did not compel the husband to pay her any alimony, and it did not permit her to pledge his credit for necessaries."[348] Since the Married Women's Property Acts, therefore, notably those of 1870 and 1882, by which many of the worst evils of the old system have been remedied,[349] the protection order has been of little avail. Accordingly, a new measure of relief was adopted. The act of 1886,[350] in case of desertion, provides that any two justices in petty sessions or any stipendiary magistrate may make a "maintenance order" when they "are satisfied that the husband, being able wholly or in part to maintain his wife and family has wilfully refused and neglected to do so." The maintenance order requires the husband to "pay to the wife such weekly sum, not exceeding two pounds, as the justices or magistrate may consider to be in accordance with his means and with any means the wife may have for her support and the support of her family;" and the payment of the sum so ordered may be enforced by distress or by imprisonment if necessary.[351] Unlike the protection order, the order for maintenance is not expressly declared to be equivalent to a judicial separation; so it is inferred that a husband may "at any moment terminate the desertion," and require to be taken back by the wife who will "be in default" for refusal.[352]

[Footnote 345: Application may be made to a police or petty sessional court and to the Court for Divorce and Matrimonial Causes or its successor, the Probate and Divorce Division. Cf. 20 and 21 Vict., c. 85, sec. 21: Statutes at Large, XCVII, 535, 536; also GEARY, op. cit., 360 ff., 425 ff.; HARRISON, op. cit., 176, 177; GLASSON, Le mariage civil et le divorce, 323: ERNST, Marriage and Divorce, 53.]

[Footnote 346: 20 and 21 Vict., c. 85, sec. 21: _Statutes at Large,_ XCVII, 536.]

[Footnote 347: For a good summary of the old law as to property rights of married women see GLASSON, Hist. du droit, II, 284; IV, 157-59; V, 103 ff.; VI, 162; GEARY, op. cit., 184 ff.; and especially SWINDEREN, "Ueber das Güterrecht der Ehefrau in England," ZVR., V, 275 ff.]

[Footnote 348: GEARY, op. cit., 363, 364.]

[Footnote 349: On these and other statutes giving the married woman control of her property see SWINDEREN, op. cit., 278 ff.; GLASSON, op. cit., VI, 193 ff.; and MONTMORENCY'S valuable article, "The Changing Status of a Married Woman," Law Quart. Review, XIII, 192 ff.]

[Footnote 350: 49 and 50 Vict., c. 52. On the "maintenance order" see GEARY, op. cit., 363, 368-70; HARRISON, op. cit., 178, 179.]

[Footnote 351: It is to be enforced as under an order of affiliation; but that is by distress, or, in default of distress, by imprisonment: GEARY, op. cit., 366, 369, 415.]

[Footnote 352: Ibid., 370.]

By the protection and maintenance orders a deserted wife is secured in the enjoyment of her own property or is given a just share in her delinquent partner's goods. In the meantime, a statute of 1878 attempts to shield her from a husband's brutality through the so-called "separation order."[353] The court is authorized in case of "aggravated assault," if "satisfied that the future safety of the wife is in peril," to order that she shall no longer be bound to live with her husband; that he shall render to her such weekly alimony[354] as may seem just; and to place the children in her custody.[355] This order for "magisterial separation," as it is called, has the "effect in all respects of a decree of judicial separation on the ground of cruelty." Like the protection, and probably also the maintenance, order, it does not preclude the wife's right, when she sees fit, to apply for a judicial separation or even for a dissolution of marriage.[356]

[Footnote 353: 41 Vict., c. 19. On the separation order see GEARY, op. cit., 364 ff., 424, 425; HARRISON, op. cit., 177, 178.]

[Footnote 354: The weekly amount and the manner of enforcing payment are expressed in exactly the same terms as later adopted in the act of 1886 for the maintenance order.]

[Footnote 355: This order, like that for maintenance, may be discharged or varied on proof of the wife's adultery; and the weekly sum may be varied in amount with an alteration in the amount of the wife's or husband's means: GEARY, op. cit., 366, 367, 369, 370.]

[Footnote 356: "If the husband goes out of the jurisdiction and leaves no tangible goods that are physically seizable, the wife is without remedy, however large be the husband's property in stocks and shares, etc., or by way of interest under a settlement." She may then apply for a judicial separation or a dissolution of marriage, when "she will obtain alimony in the usual way; and this will be indeed her only effectual course if the husband absconds."--GEARY, op. cit., 367. Compare Gillet v. Gillet (1889), 14 P. D., 158.]

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