Transcriber's Note:
Italic text is denoted by _underscores_.
Small capital text has been replaced with all capitals.
The carat character (^) indicates that the following letter
is superscripted (example: y^e). If two or more letters are
superscripted they are enclosed in curly brackets (example:
fath^{rs}).
[~x] depicts a tilde above a letter or letters.
(example: Footnote 395: G[~r]all)
[=x] depicts macron above a letter. (example: O[=p]ression)
[x=] depicts macron below a letter. (example: [p=]son)
* * * * *
A HISTORY OF
MATRIMONIAL INSTITUTIONS
CHIEFLY IN ENGLAND AND THE UNITED STATES WITH AN INTRODUCTORY
ANALYSIS OF THE LITERATURE AND THE
THEORIES OF PRIMITIVE MARRIAGE
AND THE FAMILY
BY
GEORGE ELLIOTT HOWARD PH.D.
PROFESSORIAL LECTURER IN THE UNIVERSITY OF CHICAGO AUTHOR OF "LOCAL
CONSTITUTIONAL HISTORY OF THE UNITED STATES"
VOLUME TWO
CHICAGO
THE UNIVERSITY OF CHICAGO PRESS
CALLAGHAN & COMPANY
LONDON
T. FISHER UNWIN, PATERNOSTER SQUARE
1904
COPYRIGHT 1904
THE UNIVERSITY OF CHICAGO
Entered at Stationers' Hall
MAY, 1904
TO
Alice Frost Howard
HER HUSBAND DEDICATES THIS BOOK IN
GRATEFUL RECOGNITION OF HER
AID IN MAKING IT
ANALYTICAL TABLE OF CONTENTS
VOLUME ONE
PART I
ANALYSIS OF THE LITERATURE AND THE THEORIES OF PRIMITIVE
MATRIMONIAL INSTITUTIONS
PAGES
CHAPTER I. THE PATRIARCHAL THEORY 3-32
I. Statement of the Theory 9-13
II. Criticism of the Theory by Spencer and McLennan 14-17
III. The Theory in the Light of Recent Research 18-32
CHAPTER II. THEORY OF THE HORDE AND MOTHER-RIGHT 33-89
I. Bachofen and His Disciples 39-65
II. Morgan's Constructive Theory 65-76
III. McLennan's Constructive Theory 77-89
CHAPTER III. THEORY OF THE ORIGINAL PAIRING OR
MONOGAMOUS FAMILY 89-151
I. The Problem of Promiscuity 90-110
II. The Problem of Mother-Right 110-117
III. The Problem of Exogamy 117-132
IV. The Problem of the Successive Forms of the Family 132-151
CHAPTER IV. RISE OF THE MARRIAGE CONTRACT 152-223
I. Wife-Capture and the Symbol of Rape 156-179
II. Wife-Purchase and Its Survival in the Marriage
Ceremony 179-201
III. The Antiquity of Self-Betrothal or Free Marriage 201-210
IV. Primitive Free Marriage Surviving with Purchase,
and the Decay of the Purchase-Contract 210-223
CHAPTER V. EARLY HISTORY OF DIVORCE 224-250
I. The Right of Divorce 224-240
II. The Form of Divorce 240-241
III. The Legal Effects of Divorce 241-247
IV. Frequency of Divorce 247-250
PART II
MATRIMONIAL INSTITUTIONS IN ENGLAND
CHAPTER VI. OLD ENGLISH WIFE-PURCHASE YIELDS TO
FREE MARRIAGE 253-286
I. The Primitive Real Contract of Sale and Its
Modifications 258-276
II. Rise of Free Marriage: Self-_Beweddung_ and
Self-_Gifta_ 276-286
CHAPTER VII. RISE OF ECCLESIASTICAL MARRIAGE: THE
CHURCH ACCEPTS THE LAY CONTRACT AND CEREMONIAL 287-320
I. The Primitive Christian Benediction, the Bride-Mass,
and the Celebration _ad Ostium Ecclesiae_ 291-308
II. The Priest Supersedes the Chosen Guardian, and
_Sponsalia per Verba de Praesenti_ Are Valid 308-320
CHAPTER VIII. RISE OF ECCLESIASTICAL MARRIAGE: THE
CHURCH DEVELOPS AND ADMINISTERS MATRIMONIAL
LAW 321-363
I. The Early Christian Doctrine and the Rise of the
Canonical Theory 324-340
II. Clandestine Marriages the Fruit of the Canonical
Theory 340-349
III. The Evils of the Spiritual Jurisdiction 351-359
IV. Publicity Sought through Banns and Registration 359-363
CHAPTER IX. THE PROTESTANT CONCEPTION OF MARRIAGE 364-403
I. As to the Form of Marriage 370-386
II. As to the Nature of Marriage 386-399
III. Child-Marriages in the Age of Elizabeth 399-403
CHAPTER X. RISE OF CIVIL MARRIAGE 404-473
I. Cromwell's Civil Marriage Act, 1653 408-435
II. Fleet Marriages and the Hardwicke Act, 1753 435-460
III. The Present English Law 460-473
VOLUME TWO
PART II--_Continued_
CHAPTER XI. HISTORY OF SEPARATION AND DIVORCE UNDER
ENGLISH AND ECCLESIASTICAL LAW 3-117
I. The Early Christian Doctrine and the Theory of
the Canon Law 11-60
_a_) Historical Elements of the Christian Teaching 11-23
_b_) Views of the Early Fathers 23-28
_c_) The Legislation of the Christian Emperors 28-33
_d_) The Compromise with German Custom 33-46
_e_) Final Settlement of the Christian Doctrine in
the Canon Law 47-60
II. The Protestant Doctrine of Divorce 60-85
_a_) Opinions of Luther and the Continental Reformers 60-71
_b_) Opinions of the English Reformers 71-85
III. Law and Theory during Three Centuries 85-117
_a_) The Views of Milton 85-92
_b_) Void and Voidable Contracts 92-102
_c_) Parliamentary Divorce 102-109
_d_) The Present English Law 109-117
PART III
MATRIMONIAL INSTITUTIONS IN THE UNITED STATES
CHAPTER XII. OBLIGATORY CIVIL MARRIAGE IN THE NEW
ENGLAND COLONIES 121-226
I. The Magistrate Supersedes the Priest at the
Nuptials 125-143
II. Banns, Consent, and Registration 143-151
III. Courtship, Proposals, and Government of Single
Persons 152-169
IV. Pre-contracts, Bundling, and Sexual Immorality 169-200
V. Breach of Promise and Marriage Portions 200-209
VI. Self-_Gifta_, Clandestine Contracts, and Forbidden
Degrees 209-215
VII. Slave-Marriages 215-226
CHAPTER XIII. ECCLESIASTICAL RITES AND THE RISE OF
CIVIL MARRIAGE IN THE SOUTHERN COLONIES 227-263
I. The Religious Ceremony and Lay Administration
in Virginia 228-239
II. Optional Civil Marriage and the Rise of Obligatory
Religious Celebration in Maryland 239-247
III. The Struggle for Civil Marriage and Free
Religious Celebration in North Carolina 247-259
IV. Episcopal Rites by Law and Free Civil or Religious
Celebration by Custom in South Carolina and
Georgia 260-263
CHAPTER XIV. OPTIONAL CIVIL OR ECCLESIASTICAL MARRIAGE
IN THE MIDDLE COLONIES 264-327
I. New York 266-308
_a_) Law and Custom in New Netherland 267-284
_b_) Law and Custom under the Duke of York 284-296
_c_) Law and Custom in the Royal Province 296-308
II. New Jersey, Pennsylvania, and Delaware 308-327
_a_) Law and Custom in New Jersey 308-315
_b_) Law and Custom in Pennsylvania and Delaware 315-327
CHAPTER XV. DIVORCE IN THE AMERICAN COLONIES 328-387
I. In New England 330-366
_a_) Massachusetts 330-348
_b_) New Hampshire, Plymouth, and New Haven 348-353
_c_) Connecticut 353-360
_d_) Rhode Island 360-366
II. English Divorce Laws in Abeyance in the Southern
Colonies 366-376
Arbitration and Divorce in the Middle Colonies 376-387
CHAPTER XVI. A CENTURY AND A QUARTER OF MARRIAGE
LEGISLATION IN THE UNITED STATES, 1776-1903 388-497
I. The New England States 388-408
_a_) Solemnization 389-395
_b_) Forbidden Degrees: Void and Voidable Marriages 395-401
_c_) Certificate and Record 401-408
II. The Southern and Southwestern States 408-452
_a_) Solemnization 409-427
_b_) Forbidden Degrees: Void and Voidable Marriages 427-441
_c_) Certificate and Record 441-452
III. The Middle and the Western States 452-497
_a_) Solemnization 452-470
_b_) Forbidden Degrees: Void and Voidable Marriages 470-481
_c_) Certificate and Record 481-497
VOLUME THREE
PART III--_Continued_
CHAPTER XVII. A CENTURY AND A QUARTER OF DIVORCE
LEGISLATION IN THE UNITED STATES 3-160
I. The New England States 3-30
_a_) Jurisdiction: Causes and Kinds of Divorce 4-18
_b_) Remarriage, Residence, Notice, and Miscellaneous
Provisions 18-28
_c_) Alimony, Property, and Custody of Children 28-30
II. The Southern and Southwestern States 31-95
_a_) Legislative Divorce 31-50
_b_) Judicial Divorce: Jurisdiction, Kinds, and Causes 50-79
_c_) Remarriage, Residence, Notice, and Miscellaneous
Provisions 79-90
_d_) Alimony, Property, and Custody of Children 90-95
III. The Middle and the Western States 96-160
_a_) Legislative Divorce 96-101
_b_) Judicial Divorce: Jurisdiction, Kinds, and Causes 101-144
_c_) Remarriage, Residence, Notice, and Miscellaneous
Provisions 145-160
CHAPTER XVIII. PROBLEMS OF MARRIAGE AND THE FAMILY 161-259
I. The Function of Legislation 167-223
_a_) The Statutes and the Common-Law Marriage 170-185
_b_) Resulting Character of Matrimonial Legislation 185-203
_c_) Resulting Character of Divorce Legislation 203-223
II. The Function of Education 223-259
BIBLIOGRAPHICAL INDEX 263-402
I. Early History of Matrimonial Institutions 264-291
II. Matrimonial Institutions in England and under
Germanic and Canon Law 291-339
III. Matrimonial Institutions in the United States 339-355
_a_) Manuscripts 339-340
_b_) Books and Articles 340-355
IV. Problems of Marriage and the Family 355-396
V. Session Laws and Collected Statutes Used in Chapters
XVI-XVIII 396-402
CASE INDEX 405-411
SUBJECT INDEX 413-449
PART II
MATRIMONIAL INSTITUTIONS IN ENGLAND
CONTINUED
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.]
PART III
MATRIMONIAL INSTITUTIONS IN THE UNITED STATES