Chapter X: Part I: , "Foreign Countries;" Part II, "Brit. Colonies"(London, (1)

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._]