_The Roman Law of Divorce before Justinian._--The history of divorce,
therefore, practically begins with the law of Rome. It took its earliest
colour from that conception of the _patria potestas_, or the power of
the head of the family over its members, which enters so deeply into the
jurisprudence of ancient Rome. The wife was transferred at marriage to
the authority of her husband, _in manus_, and consequently became so far
subject to him that he could, at his will, renounce his rule over her,
and terminate his companionship, subject at least to an adjustment of
the pecuniary rights which were disturbed by such action. So clearly was
the power of the husband derived from that of the father, that for a
long period a father, in the exercise of his _potestas_, could take his
daughter from her husband against the wishes of both. It may be presumed
that this power, anomalous as it appears, was not unexercised, as we
find that a constitution of Antoninus Pius prohibited a father from
disturbing a harmonious union, and Marcus Aurelius afterwards limited
this prohibition by allowing the interference of a father for strong and
just cause--_magna et justa causa interveniente_. Except in so far as it
was restrained by special legislation, the authority of a husband in the
matter of divorce was absolute. As early indeed, however, as the time of
Romulus, it is said that the state asserted its interest in the
permanence of marriage by forbidding the repudiation of wives unless
they were guilty of adultery or of drinking wine, on pain of forfeiture
of the whole of an offender's property, one-half of which went to the
wife, the other to Ceres. But the law of the XII. Tables, in turn,
allowed freedom of divorce. It would appear, however, that the sense of
the community was so far shocked by the inhumanity of treating a wife as
mere property, or the risk of regarding marriage as a mere terminable
contract, that, without crystallizing into positive enactment, it
operated to prevent the exercise of so harsh and dangerous a power. It
is said that for 500 years no husband took advantage of his power, and
it was then only by an order of a censor, however obtained, that Spurius
Carvilius Ruga repudiated his wife for barrenness. We may, however, be
permitted to doubt the genuineness of this censorial order, or at least
to conjecture the influence under which the censor was induced to
intervene, when we find that in another instance, that of L. Antonius, a
censor punished an unjust divorce by expulsion from the senate, and that
the exercise of their power by husbands increased to a great and
alarming extent. Probably few of the admirers of the greatest of Roman
orators have not regretted his summary and wholly informal repudiation
of Terentia. At last the _lex Julia de adulteriis_, while recognizing a
power of divorce both in the husband and in the wife, imposed on it, in
the public interest, serious restrictions and consequences. It required
a written bill of divorce (_libellus repudii_) to be given in the
presence of seven witnesses, who must be Roman citizens of age, and the
divorce must be publicly registered. The act was, however, purely an act
of the party performing it, and no idea of judicial interference or
contract seems to have been entertained. It was not necessary for either
husband or wife giving the bill to acquaint the other with it before its
execution, though it was considered proper to deliver the bill, when
made, to the other party. In this way a wife could divorce a lunatic
husband, or the _paterfamilias_ of a lunatic wife could divorce her from
her husband. But the _lex Julia_ was also the first of a series of
enactments by which pecuniary consequences were imposed on divorce both
by husbands and wives, whether the intention was to restrain divorce by
penalties of this nature, or to readjust pecuniary relations settled on
the basis of marriage and disturbed by its rupture. It was provided that
if the wife was guilty of adultery, her husband in divorcing her could
retain one-sixth of her _dos_, but if she had committed a less serious
offence, one-eighth. If the husband was guilty of adultery, he had to
make immediate restitution of her dowry, or if it consisted of land, the
annual proceeds for three years; if he was guilty of a less serious
offence, he had six months within which to restore the _dos_. If both
parties were in fault, no penalty fell on either. The _lex Julia_ was
followed by a series of acts of legislation extending and modifying its
provisions. The legislation of Constantine, A.D. 331, specified certain
causes for which alone a divorce could take place without the imposition
of pecuniary penalties. There were three causes for which a wife could
divorce her husband with impunity: (1) murder, (2) preparation of
poisons, (3) violation of tombs; but if she divorced him for any other
cause, such as drunkenness, or gambling or immoral society, she
forfeited her dowry and incurred the further penalty of deportation.
There were also three causes for which a husband could divorce his wife
without incurring any penalty: (1) adultery, (2) preparation of poisons,
(3) acting as a procuress. If he divorced her for any other cause, he
forfeited all interest in her dowry; and if he married again, the first
wife could take the dowry of the second.
In A.D. 421 the emperors Honorius and Theodosius enacted a law of
divorce which introduced limitations on the power of remarriage as an
additional penalty in certain cases. As regards a wife: (1) if she
divorced her husband for grave reasons or crime, she retained her dowry
and could remarry after five years; (2) if she divorced him for criminal
conduct or moderate faults, she forfeited her dowry, became incapable of
remarriage, and liable to deportation, nor could the emperor's
prerogative of pardon be exerted in her favour. As regards a husband: if
he divorced his wife (1) for serious crime, he retained the dowry and
could remarry immediately; (2) for criminal conduct, he did not retain
the dowry, but could remarry; (3) for mere dislike, he forfeited the
property brought into the marriage and could not remarry.
In A.D. 449 the law of divorce was rendered simpler and certainly more
facile by Theodosius and Valentinian. It was provided that a wife could
divorce her husband without incurring any penalty if he was convicted of
any one of twelve offences: (1) treason, (2) adultery, (3) homicide, (4)
poisoning, (5) forgery, (6) violating tombs, (7) stealing from a church,
(8) robbery, (9) cattle-stealing, (10) attempting his wife's life, (11)
beating his wife, (12) introducing immoral women to his house. If the
wife divorced her husband for any other cause, she forfeited her dowry,
and could not marry again for five years. A husband could divorce his
wife without incurring a penalty for any of these reasons except the
last, and also for the following reasons: (1) going to dine with men
other than her relations without the knowledge or against the wish of
her husband; (2) going from home at night against his wish without
reasonable cause; (3) frequenting the circus, theatre or amphitheatre
after being forbidden by her husband. If a husband divorced his wife for
any other reason, he forfeited all interest in his wife's dowry, and
also any property he brought into the marriage.
The above sketch of the legislation prior to the time of Justinian,
while it indicates a desire to place the husband and wife on something
like terms of equality as regards divorce, indicates also, by its
forbidding remarriage and by its pecuniary provisions in certain cases,
a sense in the community of the importance in the public interest of
restraining the violation of the contract of marriage. But to the Roman
marriage was primarily a contract, and therefore side by side with this
legislation there always existed a power of divorce by mutual consent.
We must now turn to those principles of the Christian religion which, in
combination with the legislation above described, produced the law
formulated by Justinian.
_The Christian View of Divorce._--The Christian law of divorce as
enunciated by its Founder was expressed in a few words, but these,
unfortunately, by no means of agreed interpretation. To appreciate them
it is necessary to consider the enactment of the Mosaic law, which also
was expressed in few words, but of a meaning involved in much doubt. The
phrase in Deut. xxiv. 1-4, which is translated in the Authorized Version
"some uncleanness," but in the Revised Version, "some unseemly thing,"
and which is the only cause stated to justify the giving of a "bill of
divorcement," was limited by the school of Shanmai to moral delinquency,
but was extended by the rival school of Hillel to causes of trifling
importance or even to motives of caprice. The wider interpretation would
seem to be supported by the words of Christ (Matt. v. 31), who, in
indicating His own doctrine in contradistinction to the law of Moses,
said, "Whosoever shall put away his wife, saving for the cause of
fornication ([Greek: porneias]), causeth her to commit adultery; and
whosoever shall marry her that is divorced committeth adultery." The
meaning of these words of Christ Himself has been involved in
controversy, which perhaps was nowhere carried on with greater acuteness
or under more critical conditions than within the walls of the British
parliament during the passage of the Divorce Act of 1857. That they
justify divorce of a complete kind for moral delinquency of some nature
is supported by the opinion probably of every competent scholar. But
scholars of eminence have sought to restrict the meaning of the [Greek:
logos porneias] to antenuptial incontinence concealed from the husband,
and to exclude adultery. The effect of this view commends itself to the
adherents of the Church of Rome, because it places the right to
separation between husband and wife, not on a cause supervening after a
marriage, which that Church seeks to regard as absolutely indissoluble,
but on invalidity in the contract of marriage itself, and which may
therefore render the marriage liable to be declared void without
impugning its indissoluble character when rightly contracted. The
narrower view of the meaning of [Greek: porneias] has been maintained
by, among others, Dr Dollinger (_First Ages of the Church_, ii. 226);
but those who will consider the arguments of Professor Conington in
reply to Dr Dollinger (_Contemp. Review_, May 1869) will probably assign
the palm to the English scholar. A more general view points in the same
direction. It is quite true that under the Mosaic law antenuptial
incontinence was, as was also adultery, punishable with death. But when
we consider the effect of adultery not only as a moral fault, but as
violating the solemn contract of marriage and vitiating its objects, it
is inconceivable that Christ, in employing a term of general import,
intended to limit it to one kind, and that the less serious, of
incontinence.
_Effect of Christianity on the Law of Rome._--The modification in the
civil law of Rome effected by Justinian under the joint influence of the
previous law of Rome and that of Christianity was remarkable. Gibbon has
summed up the change effected in the law of Rome with characteristic
accuracy: "The Christian princes were the first who specified the just
causes of a private divorce; their institutions from Constantine to
Justinian appear to fluctuate between the customs of the empire and the
wishes of the Church; and the author of the Novels too frequently
reforms the jurisprudence of the Code and Pandects." Divorce by mutual
consent, hitherto, as we have seen, absolutely free, was prohibited
(Nov. 117) except in three cases: (1) when the husband was impotent; (2)
when either husband or wife desired to enter a monastery; and (3) when
either of them was in captivity for a certain length of time. It is
obvious that the two first of these exceptions might well commend
themselves to the mind of the Church, the former as being rather a
matter of nullity of marriage than of divorce, the latter as admitting
the paramount claims of the Church on its adherents, and not
inconsistent with the spirit of the words of St Paul himself, who
clearly contemplated a separation between husband and wife as allowable
in case either of them did not hold the Christian faith (1 Cor. vii.
12). At a later period Justinian placed a further restriction or even
prohibition on divorce by consent by enacting that spouses dissolving a
marriage by mutual consent should forfeit all their property, and be
confined for life in a monastery, which was to receive one-third of the
forfeited property, the remaining two-thirds going to the children of
the marriage. The cause stated for this remarkable alteration of the
law, and the abandonment of the conception of marriage as a civil
contract _ut non Dei judicium contemnatur_ (Nov. 134), indicates the
influence of the Christian idea of marriage. That influence, however,
did not long continue in its full force. The prohibitions of Justinian
on divorce by consent were repealed by Justin (Nov. 140), his successor.
"He yielded," says Gibbon, "to the prayers of his unhappy subjects, and
restored the liberty of divorce by mutual consent; the civilians were
unanimous, the theologians were divided, and the ambiguous word which
contains the precept of Christ is flexible to any interpretation that
the wisdom of a legislature can demand." It was difficult, the enactment
stated, "to reconcile those who once came to hate each other, and who,
if compelled to live together, frequently attempted each other's lives."
Justinian further re-enacted, with some modifications, the power of
divorce by a husband or wife against the will of the other. Divorce by a
wife was allowed in five cases (Nov. 117): (1) the husband being party
or privy to conspiracy against the state; (2) attempting his wife's
life, or failing to disclose to her plots against it; (3) attempting to
induce his wife to commit adultery; (4) accusing his wife falsely of
adultery; (5) taking a woman to live in the house with his wife, or,
after warning, frequenting a house in the same town with any woman other
than his wife. If a wife divorced her husband for one of these reasons,
she recovered her dowry and any property brought into the marriage by
her husband for life with reversion to her children, or if there were no
children, absolutely. But if she divorced him for any other reason, the
provisions of the enactment of Theodosius and Valentinian were to apply.
A husband was allowed to divorce his wife for any one of seven reasons:
(1) failure to disclose to her husband plots against the state; (2)
adultery; (3) attempting or failing to disclose plots against her
husband's life; (4) frequenting dinners or balls with other men against
her husband's wishes; (5) remaining from home against the wishes of her
husband except with her parents; (6) going to the circus, theatre or
amphitheatre without the knowledge or contrary to the prohibition of her
husband; (7) procuring abortion. If the husband divorced his wife for
any one of these reasons he retained the dowry absolutely, or if there
were children, with reversion to them. If he divorced her for any other
reason, the enactments of Theodosius and Valentinian applied. In any
case of a divorce, if the father or mother of either spouse had advanced
the dowry and it would be forfeited by an unreasonable divorce, the
consent of the father or mother was necessary to render the divorce
valid.
_Effect of Divorce on Children in the Law of Rome._--The custody of the
children of divorced parents was dealt with by the Roman law in a
liberal manner. A constitution of Diocletian and Maximian left it to the
judge to determine in his discretion to which of the parents the
children should go. Justinian enacted that divorce should not impair the
rights of children either as to inheritance or maintenance. If a wife
divorced her husband for good cause, and she remained unmarried, the
children were to be in her custody, but to be maintained by the father;
but if the mother was in fault, the father obtained the custody. If he
was unable, from want of means, to support them, but she was able to do
so, she was obliged to take them and support them. It is interesting to
compare these provisions as to children with the practice at present
under English law, which in this respect reflects so closely the spirit
of the law of Rome.
_The Canon Law of Divorce._--The canon law of Rome was based on two main
principles: (1) That there could be no divorce a _vinculo matrimonii_,
but only _a mensa et thoro_. The rule was stated in the most absolute
terms: _"Quamdiu vivit vir licet adulter sit, licet sodomita, licet
flagitiis omnibus coopertus, et ab uxore propter haec scelera
derelictus, maritus ejus reputatur, cui alterum vivum accipere non
licet"_ (Caus. 32, Quaest. 7, c. 7). (2) That no divorce could be had at
the will of the parties, but only by the sentence of a competent, that
is to say, an ecclesiastical, court. In this negation of a right to
divorce a _vinculo matrimonii_ lies the broad difference between the
doctrines of the Eastern and Western Churches of Christendom. The Greek
Church, understanding the words of Christ in the broader sense above
mentioned, has always allowed complete divorce with a right to remarry
for the cause of adultery. And it is said that the form at least of an
anathema of the council of Trent was modified out of respect to
difference on the part of the Greek Church (see Pothier 5. 6. 21). The
papal canon law allowed a divorce a _mensa et thoro_ for six causes: (1)
adultery or unnatural offences; (2) impotency; (3) cruelty; (4)
infidelity; (5) entering into religion; (6) consanguinity. The Church,
however, always assumed to itself the right to grant licences for an
absolute divorce; and further, by claiming the power to declare
marriages null and void, though professedly this could be done only in
cases where the original contract could be said to be void, it was, and
is to this day, undoubtedly extended in practice to cases in which it is
impossible to suppose the original contract really void, but in which a
complete divorce is on other grounds desirable.