Chapter XI: Part I: , "Foreign Countries;" Part II, "Brit. Colonies"(London, (2)

[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In 363 Julian repealed the divorce law of Constantine;[69] but the principle of restricting the grounds of arbitrary repudiation was again adopted in 421 by Honorius and Constantius;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.]