Chapter XII: Part I: , "Foreign Countries;" Part II, "Brit. Colonies"(London, (3)

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

On the wide use of "metaphor" in the history of the church see
LECKY, _Democracy and Liberty_, II, 217; and especially his
_Hist. of European Morals_, II, 326, 327, 356-58.]

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

[Footnote 142: _Cf._ especially _Decretum Gratiani_, cc. 1-24,
_causa_ xxxii, qu. 7: RICHTER-FRIEDBERG, _Corpus Juris Can._, I;
PETER LOMBARD, _Sententiae_, IV, D. xxvii ff.]

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

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

[Footnote 144: ESMEIN, _op. cit._, II, 73, 85-89, who gives
a brief account of the evolution of the uses of the term
_divortium_. Originally, among the canonists, there was but one
kind of _divorce_, _i. e._, any judicial separation between man
and wife, whether or not with the right to remarry. This led to
confusion; and so the distinction between divorce _a vinculo_ or
_quoad vinculum_ and _a mensa et toro_ or _quoad mensam et torum_
was differentiated. Beginning with Bernard of Pavia, the first
compiler of the Decretals, the term _divortium_ appears regularly
as a rubric in the later collections of the canon law.]

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

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

[Footnote 146: More exactly speaking _fornicatio spiritualis_ "as
opposed to _fornicatio carnalis_," the first cause mentioned.]

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

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

[Footnote 149: ESMEIN, _op. cit._, II, 93, 94. Earlier divorce
_a mensa et thoro_ was not granted on this ground unless there
was real danger to the life of one of the parties; but at last
it was decided that _nimia saevitia_ would suffice, but the term
is not defined: _idem_, _loc. cit._ In general on this species
of divorce see FREISEN, _op. cit._, 830-47; GEARY, _Marriage
and Family Relations_, 238, 239, 350; SCHEURL, _Das gem. deut.
Eherecht_, 286-91.]

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

[Footnote 150: _Decret. Grat._, II, _caus._ xviii, qu. 2,
C. 2; and _Decretals_ IV, 19, _de divortiis_, c. 7: see
RICHTER-FRIEDBERG, _Corpus juris can._, I.]

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

[Footnote 152: POLLOCK AND MAITLAND, _Hist, of Eng. Law_, II,
391, 392: citing for the first case TOVEY, _Anglia Judaica_, 84;
_Co. Lit._, 31_b_, 32_a_; and for the second, _Calend. Geneal._,
II, 563.]

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

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

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

[Footnote 155: FREISEN, _op. cit._, 826 ff., 212 ff.,
shows that the _dispensatio summi pontificis a matrimonio
rato nondum consummato_ originated with the reforms of
Alexander III.; and argues rightly that these two kinds of
dissolution--dispensation and orders--are in harmony with the
rule of indissolubility according to the doctrine of Gratian,
but not according to the existing theory. Thus, of the old
eight causes which were sufficient of themselves to dissolve
_matrimonium initiatum_--identical with the later _sponsalia de
praesenti_--holy orders alone remains; the papal dispensation has
taken the place of the other seven: _ibid._, 827, 829; _cf._ on
these exceptions SCHEURL, _Das gem. deut. Eherecht_, 278-86.]

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

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

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

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

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

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

[Footnote 161: THWING, _The Family_, 83. _Cf._ WOOLSEY, _op.
cit._, 118 ff.]

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

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

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

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

[Footnote 164: JEAFFRESON, _Brides and Bridals_, II, 310, who
quotes the following verses entitled "A Poem on the Times of
Edward II." from the _Percy Society Publication_:

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

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

[Footnote 165: LECKY, _Democracy and Liberty_, II, 194. For other
examples see HUTH, _Marriage of Near Kin_, 118-20.]

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

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

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

[Footnote 167: In general see CIGOI, _Unauflösbarkeit_, 149 ff.;
PERRONE, _De mat. christ._, III, 376 ff., 389 ff., 398 ff.;
GODOLPHIN, _Repartorium canonicum_, 61, 62, 492-512; ESMEIN,
_Le mariage en droit canonique_, II, 295 ff., 308 ff.; SCHULTE,
_Lehrbuch_, 359-61; LECKY, _Democracy and Liberty_, II, 193,
196, 197; GLASSON, _Le mariage civil et le divorce_, 216, 217;
SCHEURL, _Das gem. deut. Eherecht_, 275, 276, where the canons
adopted at the twenty-fourth session are given.]

[Footnote 168: By the bishop of Barcelona, who proposed the word
_separatio_ for divorce _quoad torum_: ESMEIN, _op. cit._, II,
309. On the misleading names for the two kinds of separation
see POLLOCK AND MAITLAND, _Hist. of Eng. Law_, II, 392 n. 5.
However, a "modern distinction of some Catholic writers between
_anullatio_ and _separatio_ removes all ambiguity."--WOOLSEY,
_Divorce_, 124.]

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

[Footnote 170: Distinction is made between _dispensatio super
matrimonio_, that is, for dissolving an unconsummate marriage;
and _dispensatio matrimonialis_, that is, to remove an impediment
which otherwise would invalidate a proposed contract. In all
cases of dispensation careful judicial inquiry as to the grounds
of application is made: GEARY, _Marriage and Family Relations_,
510-14. _Cf._ WOOLSEY, _op. cit._, 122, 123; and especially the
convenient manual of POMPEN, _De dispensationibus_, 122-68.
For a full discussion of the intricate law and custom as to
dispensation see ESMEIN, _op. cit._, II, 315-68; FREISEN,
_Geschichte des can. Eherechts_, 891-906; SCHEURL, _Das gem.
deut. Eherecht_, 281 ff. In the oriental church dispensation from
the forbidden degrees is in general not allowed, ZHISHMAN: _Das
Eherecht der orient. Kirche_, 709-17.]

II. THE PROTESTANT DOCTRINE OF DIVORCE

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

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

[Footnote 172: GOESCHEN, _Doctrina de mat._, 60; also MEJER,
"Zur Geschichte des ält. prot. Eherechts," in _ZKR._, XVI, 47;
HUBRICH, _Das Recht der Ehescheidung_, 139 ff.]

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

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

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

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

[Footnote 176: RICHTER, _Beiträge zur Gesch. des
Ehescheidungsrechts in der evang. Kirche_, 11 ff., 15 ff., 56
ff.; _idem_, _Kirchenrecht_, 1177.]

[Footnote 177: Adultery and desertion are the only grounds of
full divorce recognized by BRENZ, _Wie yn Ehesachen ... zu
Handeln_, in SARCERIUS, _Vom heil. Ehestande_, 152-57, and
_idem_, _Corpus juris mat._, 183 ff.; with which may be compared
the passages from the writings of BRENZ quoted by RICHTER,
_Beiträge_, 19-23; BUGENHAGEN, _Vom Ehebruch und Weglauffen_: in
SARCERIUS, _Vom heil. Ehestande_, 138-51; or _Corpus juris mat._,
171-84; CHEMNITZ, _Examen conc. trid._, II, 430; Calvin, in
RICHTER, _op. cit._, 25, 26; BEZA, _Tract. de repud. et divort._
(Geneva, 1569), 228 ff., 275 ff.; KLING, _Tract. mat. causarum_
(Frankfort, 1577), 89 ff.; BEUST, _Tract. de jure connub._;
_idem_, _Tract. de spons. et mat._, 147 ff.; SCHNEIDEWIN, _Com.
in inst._; _idem_, _De nupt., lib. primi com._ (Jena, 1585), §§ 7
ff.

These and other writers are discussed by RICHTER, _Kirchenrecht_,
1175 ff.; _idem_, _Beiträge_, 15 ff.; MEJER, _Zum Kirchenrechte
der Reformat._, 147 ff.; HAUBER, _Ehescheid. im Reformat._, II,
209 ff. In general, compare GREVE, _Ehescheidung_, 225 ff.; POPP,
_Ehescheidung_, 80 ff.; STRIPPELMANN, _Das Ehescheidungsrecht_,
54 ff., 128 ff.; STÖLZEL, _Ehescheidungsrecht_, 9 ff.;
GLASSON, _Le mar. civ. et le divorce_, 224, 225, 329, 330;
SCHEURL, _Das gem. deut. Eherecht_, 291 ff.; BUCHKA, _Das
meckl. Ehescheidungsrecht_, 20 ff.; HUBRICH, _Das Recht der
Ehescheidung_, 43 ff.; FRIEDBERG, _Lehrbuch_, 366-78; _idem_,
"Beiträge," _ZKR._, VII, 56-127; and SCHULTE, _Lehrbuch_, 414-28.]

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

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

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

[Footnote 181: _Quasi malitiosa desertio_ comprehends not
only refusal of conjugal duty, but also applies to the
case of a defendant who abandoned a consort, but who does
not necessarily, as in malicious desertion, remain in a
place unknown or one beyond the reach of judicial process:
STRIPPELMANN, _Ehescheidungsrecht_, 146 ff. _Cf._ DIETRICH,
_Evang. Ehescheidungsrecht_, 25 ff.; HUBRICH, _Das Recht der
Ehescheidung_, 80, 88 ff. See especially LUTHER, _Vom ehel.
Leben_; STRAMPFF, 394, 395, who says the "weltliche Ubirkeit das
Weib zwingen oder umbbringen" soll.]

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

[Footnote 182: Luther does not allow absolute divorce on account
of anger or incompatibility, _insidiae_, or attempts upon life,
exile, sickness, incurable disease, misfortune to an innocent
spouse, or similar grounds: see his _Von Ehesachen_, in STRAMPFF,
398, 399; _Vom ehel. Leben_: _ibid._, 400; _Predigt von dem
Ehestande_ (1525): _ibid._, 400; and _Auslegung des 17. Cap. 1
Cor._ (1523): _ibid._, 397, 398, where only temporary separation
is allowed, unless one of the parties refuses reconciliation
and the other "kunnt nicht halten;" but in this case the
"separation has the refusal of conjugal duty as a consequence,
or it has become malicious desertion": STRAMPFF, 396, 351, 352,
382 ff. _Cf._ BRENZ, _Wie yn Ehesachen ... zu Handeln_: in
SARCERIUS, _Vom heil. Ehestande_, 155 ff.; DIETRICH, _Evang.
Ehescheidungsrecht_, 31 ff.; HAUBER, _Ehescheid. im Reformat._,
II, 242 ff.]

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

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

[Footnote 185: RICHTER, _op. cit._, 6 ff.; BULLINGER, _Der
christ. Ehestand_ (ed. 1579), lf. 102.]

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

[Footnote 187: LAMBERT OF AVIGNON, _De sacro conjugio_
(Strassburg, 1524): cited by RICHTER, _op. cit._, 31, 32.]

[Footnote 188: See his _De regno Christi_ (1557), II, 25 ff.;
and the elaborate dissertation entitled _Etlicher gelerten
Theologi bedencken von der Ehescheidung_: in SARCERIUS, _Vom
heil. Ehestande_, 161 ff.; also _ibid._, _Corpus juris mat._, 196
ff., which RICHTER, _op. cit._, 34 ff., ascribes to Bucer; though
MEJER, _Zum Kirchenrecht_, 183, doubts the correctness of this
view. On Bucer's doctrines see the discussion of Milton below.]

[Footnote 189: MELANCHTHON, "De conjugio," _Opera Omnia_
(Erlangen, 1828), I, pars II, 236 ff.; or in SARCERIUS, _Vom
heil. Ehestande_, 159 ff.; or _ibid._, _Corpus juris mat._, 190
ff. _Cf._ also RICHTER, _Beiträge_, 32-34; and especially MEJER,
_Zum Kirchenrecht_, 179-82, who compares the view of Melanchthon
with that of Luther, showing that the former goes back to the
Theodosian code.]

[Footnote 190: MONNER, _Tract. de mat. et clandes. conjugiis_
(Jena, 1561): _ap._ RICHTER, _Beiträge_, 40, 41. Representatives
of the more liberal tendency in the sixteenth century are
Chyträus, Hunnius, Wigand, Osiander, and the Danish theologian
Hemming: RICHTER, _op. cit._, 42, 43, 28.]

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

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

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

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

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

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

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

[Footnote 197: WOOLSEY, _Divorce_, 138, 139. See Luther, _Vom
ehel. Leben_: in STRAMPFF, 363, 364; or in SARCERIUS, _op. cit._,
137. On Calvin see STRIPPELMANN, _Ehescheidungsrecht_, 69, 70.
The same view is expressed by HOOPER, _Early Writings_, 383; and
by Bucer: MILTON'S _Prose Works_, III, 299.]

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

[Footnote 198: RICHTER, _Die evangelischen Kirchenordnungen des
sechszehnten Jahrhunderts_.

In many Protestant lands these ecclesiastical statutes or
provisions, with the sanction of the civil authority, took the
place of the old canon law. For a discussion of their contents
see especially the monographs of GOESCHEN, _Doctrina de mat._,
59 ff.; _idem_, in HERZOG'S _Encyclopädie_, III, 702 ff.;
DIETRICH, _Evang. Ehescheidungsrecht_; and compare HAUBER,
_Ehescheid. im Reformat._, II, 219 ff.; RICHTER, _Beiträge_,
51 ff.; _idem_, _Kirchenrecht_, 1177, 1178; STRIPPELMANN, _Das
Ehescheidungsrecht_, 78 ff.; GREVE, _Ehescheidung_, 298 ff.;
THWING, _The Family_, 84, 85; WOOLSEY, _Divorce_, 136-38.]

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

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

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

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

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

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

[Footnote 205: For the ordinance of 1553, drafted by Brenz, see
RICHTER, _Kirchenordnungen_, II, 130. By this act full divorce
is allowed only for adultery and desertion, including refusal of
marital duty: and separation _a thoro et mensa_ is not permitted
even for _saevitia_. _Cf._ RICHTER, _Beiträge_, 57.]

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

[Footnote 207: HÜLSEMANN, _Extensio breviarii theologici_ (3d
ed., Leipzig, 1655), 502: cited by HUBRICH, _Das Recht der
Ehescheidung_, 54-56, 119 ff.; RICHTER, _Beiträge_, 57, 63;
_idem_, _Kirchenrecht_, 1177.]

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

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

[Footnote 209: STÖLZEL, _op. cit._, 10, 11.]

[Footnote 210: SCHULTE, _Lehrbuch_, 416.]

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

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

[Footnote 212: LUTHER, _Von Ehesachen_: in STRAMPFF, 297, 298,
392, where he names _Pfarrer_ and _Oberkeit_ as co-ordinate
authorities in such causes. On the significance of _Oberkeit_
(temporal magistracy) see STÖLZEL, _Entwicklung des gelehrten
Richterthums_, I, 207 ff.; and compare _idem_, _Ueber das
landesherrl. Ehescheidungsrecht_, 22, 23.]

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

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

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

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

[Footnote 216: RICHTER, _op. cit._, 43 ff., cites several cases
as evidence. On the other hand, the Wittenberg decisions analyzed
by MEJER, _Zum Kirchenrechte_, 196 ff.; and those published by
SCHLEUSNER, "Zu den Anfängen prot. Eherechts," _ZKG._, XIII, 130
ff., 142 ff., follow mainly the conservative direction. In this
connection read the "Antwort auff etliche Fragen und Gegenwurff"
in SARCERIUS, _Vom heil. Ehestande_, 204 ff.; or in _idem_,
_Corpus juris mat._, 248 ff.]

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

[Footnote 217: _Cf._ LECKY, _Democracy and Liberty_, II, 200;
GLASSON, _Le mariage civil et le divorce_, 310, 311; and _idem_,
_Histoire du droit_, V, 89 ff.]