Chapter XI: Act 1890 (5)

(B) In heteroscopic divination the process is rather one of inference from external facts. The methods are very various. (i.) The casting of lots, _sortilege_, was common in classical antiquity; the Homeric heroes prayed to the gods when they cast lots in Agamemnon's leather cap, and Mopsus divined with sacred lots when the Argonauts embarked. Similarly dice are thrown for purposes of sortilege; the _astragali_ or knucklebones, used in children's games at the present day, were implements of divination in the first instance. In Polynesia the coco-nut is spun like a teetotum to discover a thief. Somewhat different are the omens drawn from books; in ancient times the poets were often consulted, more especially Virgil, whence the name _sortes virgilianae_, just as the Bible is used for drawing texts in our own day, especially in Germany. (ii.) In _haruspication_, or the inspection of entrails, in _scapulomancy_ or divination by the speal-bone or shoulder-blade, in divination by footprints in ashes, found in Australia, Peru and Scotland, the voluntary element is prominent, for the diviner must take active steps to secure the conditions necessary to divination. (iii.) In the case of _augury_ and _omens_, on the other hand, that is not necessary. The behaviour and cries of birds, and _angang_ or meeting with ominous animals, &c., may be voluntarily observed, and opportunities for observation made; but this is not necessary for success. (iv.) In _astrology_ we have a method which still finds believers among people of good education. The stars are held, not only to prognosticate the future but also to influence it; the child born when Mars is in the ascendant will be war-like; Venus has to do with love; the sign of the Lion presides over places where wild beasts are found. (v.) In other cases the tie that binds the subject of divination with the omen-giving object is sympathy. The name of the life-index is given to a tree, animal or other object believed to be so closely united by sympathetic ties to a human being that the fate of the latter is reflected in the condition of the former. The Polynesians set up sticks to see if the warriors they stood for were to fall in battle; on Hallowe'en in our own country the behaviour of nuts and other objects thrown into the fire is held to prognosticate the lot of the person to whom they have been assigned. Where, as in the last two cases, the sympathetic bond is less strong, we find symbolical interpretation playing an important part.

Sympathy and symbolism, association of ideas and analogy, together with a certain amount of observation, are the explanation of the great mass of heteroscopic divinatory formulae. But where autoscopic phenomena play the chief part the question of the origin of divination is less simple. The investigations of the Society for Psychical Research show that premonitions, though rare in our own day, are not absolutely unknown. Pseudo-premonitions, due to hallucinatory memory, are not unknown; there is also some ground for holding that crystal-gazers are able to perceive incidents which are happening at a distance from them. Divination of this sort, therefore, may be due to observation and experiment of a rude sort, rather than to the unchecked play of fancy which resulted in heteroscopic divination.

See also the articles AUGURS, ORACLE, ASTROLOGY, OMEN, &c.

AUTHORITIES.--Bouche Leclercq, _Histoire de la divination dans
l'antiquite_; Tylor, _Primitive Culture_, passim; Maury, "La Magie et
l'astrologie," _Journ. Anth. Inst._ i. 163, v. 436; _Folklore_, iii.
193; Ellis, _Tshi-speaking Peoples_, p. 202; _Dictionnaire
encyclopedique des sciences medicales_, xxx. 24-96; _Journ. of
Philology_, xiii. 273, xiv. 113; Deubner, _De incubatione_; Lenormant,
_La Divination, et la science de presages chez les Chaldeens_; Skeat,
_Malay Magic_; J. Johnson, _Yoruba Heathenism_ (1899). (N. W. T.)

DIVINING-ROD. As indicated in the article MAGIC, _Rhabdomancy_, or the art of using a divining-rod for discovering something hidden, is apparently of immemorial antiquity, and the Roman _virgula divina_, as used in taking auguries by means of casting bits of stick, is described by Cicero and Tacitus (see also DIVINATION); but the special form of _virgula furcata_, or forked twig of hazel or willow (see also HAZEL), described by G. Agricola (_De re metallica_, 1546), and in Sebastian Munster's _Cosmography_ in the early part of the 16th century, used specially for discovering metallic lodes or water beneath the earth, must be distinguished from the general superstition. The "dowsing" or divining-rod, in this sense, has a modern interest, dating from its use by prospectors for minerals in the German (Harz Mountains) mining districts; the French chemist M.E. Chevreul[1] assigns its first mention to Basil Valentine, the alchemist of the late 15th century. On account of its supposed magical powers, it may be taken perhaps as an historical analogue to such fairy wands as the _caduceus_ of Mercury, the golden arrow of Herodotus's "Abaris the Hyperborean," or the medieval witch's broomstick. But the existence of the modern water-finder or dowser makes the divining-rod a matter of more than mythological or superstitious interest. The _Schlagruthe_ (striking-rod), or forked twig of the German miners, was brought to England by those engaged in the Cornish mines by the merchant venturers of Queen Elizabeth's day. Professor W. F. Barrett, F.R.S., the chief modern investigator of this subject, regards its employment, dating as it does from the revival of learning, as based on the medieval doctrine of "sympathy," the drooping of trees and character of the vegetation being considered to give indications of mineral lodes beneath the earth's surface, by means of a sort of attraction; and such critical works as Robert Boyle's (1663), or the _Mineralogia Cornubiensis_ of Pryce (1778), admitted its value in discovering metals. But as mining declined in Cornwall, the use of the dowser for searching for lodes almost disappeared, and was transferred to water-finding. The divining-rod has, however, also been used for searching for any buried objects. In the south of France, in the 17th century, it was employed in tracking criminals and heretics. Its abuse led to a decree of the Inquisition in 1701, forbidding its employment for purposes of justice.

In modern times the professional dowser is a "water-finder," and there has been a good deal of investigation into the possibility of a scientific explanation of his claims to be able to locate underground water, where it is not known to exist, by the use of a forked hazel-twig which, twisting in his hands, leads him by its directing-power to the place where a boring should be made. Whether justified or not, a widespread faith exists, based no doubt on frequent success, in the dowser's power; and Professor Barrett (_The Times_, January 21, 1905) states that "making a liberal allowance for failures of which I have not heard, I have no hesitation in saying that where fissure water exists and the discovery of underground water sufficient for a domestic supply is a matter of the utmost difficulty, the chances of success with a good dowser far exceed mere lucky hits, or the success obtained by the most skilful observer, even with full knowledge of the local geology." Is this due to any special faculty in the dowser, or has the twig itself anything to do with it? Held in balanced equilibrium, the forked twig, in the dowser's hands, moves with a sudden and often violent motion, and the appearance of actual life in the twig itself, though regarded as mere stage-play by some, is popularly associated with the cause of the water-finder's success. The theory that there is any direct connexion ("sympathy" or electrical influence) between the divining-rod and the water or metal, is however repudiated by modern science. Professor Barrett, who with Professor Janet and others is satisfied that the rod twists without any intention or voluntary deception on the part of the dowser, ascribes the phenomenon to "motor-automatism" on the part of the dowser (see AUTOMATISM), a reflex action excited by some stimulus upon his mind, which may be either a subconscious suggestion or an actual impression (obscure in its nature) from an external object or an external mind; both sorts of stimulus are possible, so that the dowser himself may make false inferences (and fail) by supposing that the stimulus is an external object (like water). The divining-rod being thus "an indicator of any sub-conscious suggestion or impression," its indications, no doubt, may be fallacious; but Professor Barrett, basing his conclusions upon observed successes and their greater proportion to failures than anything that chance could produce, advances the hypothesis that some persons (like the professional dowsers) possess "a genuine super-normal perceptive faculty," and that the mind of a good dowser, possessing the idiosyncrasy of motor-automatism, becomes a blank or _tabula rasa_, so that "the faintest impression made by the object searched for creates an involuntary or automatic motion of the indicator, whatever it may be." Like the "homing instinct" of certain birds and animals, the dowser's power lies beneath the level of any conscious perception; and the function of the forked twig is to act as an index of some material or other mental disturbance within him, which otherwise he could not interpret.

It should be added that dowsers do not always use any rod. Some again use a willow rod, or withy, others a hazel-twig (the traditional material), others a beech or holly twig, or one from any other tree; others even a piece of wire or watch-spring. The best dowsers are said to have been generally more or less illiterate men, usually engaged in some humble vocation.

Sir W. H. Preece (_The Times_, January 16, 1905), repudiating as an electrician the theory that any electric force is involved, has recorded his opinion that water-finding by a dowser is due to "mechanical vibration, set up by the friction of moving water, acting upon the sensitive ventral diaphragm of certain exceptionally delicately framed persons." Another theory is that water-finders are "exceptionally sensitive to hygrometric influences." In any case, modern science approaches the problem as one concerning which the facts have to be accepted, and explained by some natural, though obscure, cause.

See for further details Professor Barrett's longer discussion in parts
32 (1897) and 38 (1900) of the _Proceedings of the Society for
Psychical Research_.

FOOTNOTE:

[1] _La Baguette divinatoire_ (Paris, 1845).

DIVISION (from Lat. _dividere_, to break up into parts, separate), a general term for the action of breaking up a whole into parts. Thus, in political economy, the phrase "division of labour" implies the assignment to particular workmen of the various portions of a whole piece of work; in mathematics division is the process of finding how many times one number or quantity, the "divisor," is contained in another, the "dividend" (see ARITHMETIC and ALGEBRA); in the musical terminology of the 17th and 18th centuries, the term was used for rapid passages consisting of a few slow notes amplified into a florid passage, i.e. into a larger number of quick ones. The word is used also in concrete senses for the parts into which a thing is divided, e.g. a division of an army, an administrative or electoral division; similarly, a "division" is taken in a legislative body when votes are recorded for and against a proposed measure.

In logic, division is a technical term for the process by which a _genus_ is broken up into its _species_. Thus the genus "animal" may be divided, according to the habitat of the various kinds, into animals which live on land, those which live in water, those which live in the air. Each of these may be subdivided according to whether their constituent members do or do not possess certain other qualities. The basis of each of these divisions is called the _fundamentum divisionis_. It is clear that there can be no division in respect of those qualities which make the genus what it is. The various species are all alike in the possession of the generic attributes, but differ in other respects; they are "variations on the same theme" (Joseph, _Introduction to Logic_, 1906); each one has the generic, and also certain peculiar, qualities (_differentiae_), which latter distinguish them from other species of the same genus. The process of division is thus the obverse of classification (q.v.); it proceeds from genus to species, whereas classification begins with the particulars and rises through species to genus. In the exact sciences, and indeed in all argument both practical and theoretical, accurate division is of great importance. It is governed by the following rules. (1) _Division must be exhaustive_; all the members of the genus must find a place in one or other of the species; a captain who selects for his team skilful batsmen and bowlers only is guilty of an incomplete division of the whole function of a cricket team by omitting to provide himself with good fielders. Rectilinear figures cannot be divided into triangles and quadrilaterals because there are rectilinear figures which have more than four sides. On the other hand, triangles can be divided into equilateral, isosceles and scalene, since no other kind of triangle can exist. (2) Division _must be exclusive_, that is, each species must be complete in itself and not contain members of another species. No member of a genus must be included in more than one of the species. (3) In every division _there must be but one principle (fundamentum divisionis)_. The members of a genus may differ from one another in many respects, e.g. books may be divided according to external form into quarto, octavo, &c., or according to binding into calf, cloth, paper-backed and so on. They cannot, however, be divided logically into quarto, paper-backed, novels and remainders. When more than one principle is used in a division it is called "cross division." (4) _Division must proceed gradually_ ("Divisio non facit saltum"), i.e. the genus must be resolved into the next highest ("proximate") species. To go straight from a _summum genus_ to very small species is of no scientific value.

It is to be observed that logical division is concerned exclusively with universals or concepts; division is of genus and species, not of particulars. Two other kinds of division are recognized:--_metaphysical division_, the separation in thought of the various qualities possessed by an individual thing (a piece of lead has weight, colour, &c), and _physical division_ or _partition_, the breaking up of an object into its parts (a watch is thought of as being composed of case, dial, works, &c.). Logical division is closely allied with logical definition (q.v.).

DIVORCE (Lat. _divortium_, derived from dis-, apart, and vertere, to turn), the dissolution, in whole or in part, of the tie of marriage. It includes both the complete abrogation of the marriage relation known as a divorce _a vinculo matrimonii_, which carries with it a power on the part of both parties to the marriage to remarry other persons or each other, and also that incomplete severance not involving powers to remarry, which was formerly known as divorce a _mensa et thoro_, and has in England been termed "judicial separation." Less strictly, divorce is commonly understood to include judicial declarations of nullity of marriage, which, while practically terminating the marriage relation, proceed in law on the basis of the marriage never having been legally established.

The conditions under which, in different communities, divorce has at different times been permitted, vary with the aspects in which the relation of marriage (q.v.) has been regarded. When marriage has been deemed to be the acquisition by the husband of property in the wife, or when it has been regarded as a mere agreement between persons capable both to form and to dissolve that contract, we find that marriage has been dissoluble at the will of the husband, or by agreement of the husband and wife. Yet even in these cases the interest of the whole community in the purity of marriage relations, in the pecuniary bearings of this particular contract, and the condition of children, has led to the imposition of restrictions on, and the attachment of conditions to, the termination of the obligations consequent on a marriage legally contracted. But the main restrictions on liberty of divorce have arisen from the conception of marriage entertained by religions, and especially by one religion. Christianity has had no greater practical effect on the life of mankind than in its belief that marriage is no mere civil contract, but a vow in the sight of God binding the parties by obligations of conscience above and beyond those of civil law. Translating this conception into practice, Christianity not only profoundly modified the legal conditions of divorce as formulated in the Roman civil law, but in its own canon law defined its own rule of divorce, going so far as in the Western (at least in its unreformed condition), though not the Eastern, branch of Christendom to forbid all complete divorces, that is to say, all dissolutions of marriage carrying with them the right to remarry.

HISTORY

_The Roman Law of Divorce before Justinian._--The history of divorce, therefore, practically begins with the law of Rome. It took its earliest colour from that conception of the _patria potestas_, or the power of the head of the family over its members, which enters so deeply into the jurisprudence of ancient Rome. The wife was transferred at marriage to the authority of her husband, _in manus_, and consequently became so far subject to him that he could, at his will, renounce his rule over her, and terminate his companionship, subject at least to an adjustment of the pecuniary rights which were disturbed by such action. So clearly was the power of the husband derived from that of the father, that for a long period a father, in the exercise of his _potestas_, could take his daughter from her husband against the wishes of both. It may be presumed that this power, anomalous as it appears, was not unexercised, as we find that a constitution of Antoninus Pius prohibited a father from disturbing a harmonious union, and Marcus Aurelius afterwards limited this prohibition by allowing the interference of a father for strong and just cause--_magna et justa causa interveniente_. Except in so far as it was restrained by special legislation, the authority of a husband in the matter of divorce was absolute. As early indeed, however, as the time of Romulus, it is said that the state asserted its interest in the permanence of marriage by forbidding the repudiation of wives unless they were guilty of adultery or of drinking wine, on pain of forfeiture of the whole of an offender's property, one-half of which went to the wife, the other to Ceres. But the law of the XII. Tables, in turn, allowed freedom of divorce. It would appear, however, that the sense of the community was so far shocked by the inhumanity of treating a wife as mere property, or the risk of regarding marriage as a mere terminable contract, that, without crystallizing into positive enactment, it operated to prevent the exercise of so harsh and dangerous a power. It is said that for 500 years no husband took advantage of his power, and it was then only by an order of a censor, however obtained, that Spurius Carvilius Ruga repudiated his wife for barrenness. We may, however, be permitted to doubt the genuineness of this censorial order, or at least to conjecture the influence under which the censor was induced to intervene, when we find that in another instance, that of L. Antonius, a censor punished an unjust divorce by expulsion from the senate, and that the exercise of their power by husbands increased to a great and alarming extent. Probably few of the admirers of the greatest of Roman orators have not regretted his summary and wholly informal repudiation of Terentia. At last the _lex Julia de adulteriis_, while recognizing a power of divorce both in the husband and in the wife, imposed on it, in the public interest, serious restrictions and consequences. It required a written bill of divorce (_libellus repudii_) to be given in the presence of seven witnesses, who must be Roman citizens of age, and the divorce must be publicly registered. The act was, however, purely an act of the party performing it, and no idea of judicial interference or contract seems to have been entertained. It was not necessary for either husband or wife giving the bill to acquaint the other with it before its execution, though it was considered proper to deliver the bill, when made, to the other party. In this way a wife could divorce a lunatic husband, or the _paterfamilias_ of a lunatic wife could divorce her from her husband. But the _lex Julia_ was also the first of a series of enactments by which pecuniary consequences were imposed on divorce both by husbands and wives, whether the intention was to restrain divorce by penalties of this nature, or to readjust pecuniary relations settled on the basis of marriage and disturbed by its rupture. It was provided that if the wife was guilty of adultery, her husband in divorcing her could retain one-sixth of her _dos_, but if she had committed a less serious offence, one-eighth. If the husband was guilty of adultery, he had to make immediate restitution of her dowry, or if it consisted of land, the annual proceeds for three years; if he was guilty of a less serious offence, he had six months within which to restore the _dos_. If both parties were in fault, no penalty fell on either. The _lex Julia_ was followed by a series of acts of legislation extending and modifying its provisions. The legislation of Constantine, A.D. 331, specified certain causes for which alone a divorce could take place without the imposition of pecuniary penalties. There were three causes for which a wife could divorce her husband with impunity: (1) murder, (2) preparation of poisons, (3) violation of tombs; but if she divorced him for any other cause, such as drunkenness, or gambling or immoral society, she forfeited her dowry and incurred the further penalty of deportation. There were also three causes for which a husband could divorce his wife without incurring any penalty: (1) adultery, (2) preparation of poisons, (3) acting as a procuress. If he divorced her for any other cause, he forfeited all interest in her dowry; and if he married again, the first wife could take the dowry of the second.

In A.D. 421 the emperors Honorius and Theodosius enacted a law of divorce which introduced limitations on the power of remarriage as an additional penalty in certain cases. As regards a wife: (1) if she divorced her husband for grave reasons or crime, she retained her dowry and could remarry after five years; (2) if she divorced him for criminal conduct or moderate faults, she forfeited her dowry, became incapable of remarriage, and liable to deportation, nor could the emperor's prerogative of pardon be exerted in her favour. As regards a husband: if he divorced his wife (1) for serious crime, he retained the dowry and could remarry immediately; (2) for criminal conduct, he did not retain the dowry, but could remarry; (3) for mere dislike, he forfeited the property brought into the marriage and could not remarry.

In A.D. 449 the law of divorce was rendered simpler and certainly more facile by Theodosius and Valentinian. It was provided that a wife could divorce her husband without incurring any penalty if he was convicted of any one of twelve offences: (1) treason, (2) adultery, (3) homicide, (4) poisoning, (5) forgery, (6) violating tombs, (7) stealing from a church, (8) robbery, (9) cattle-stealing, (10) attempting his wife's life, (11) beating his wife, (12) introducing immoral women to his house. If the wife divorced her husband for any other cause, she forfeited her dowry, and could not marry again for five years. A husband could divorce his wife without incurring a penalty for any of these reasons except the last, and also for the following reasons: (1) going to dine with men other than her relations without the knowledge or against the wish of her husband; (2) going from home at night against his wish without reasonable cause; (3) frequenting the circus, theatre or amphitheatre after being forbidden by her husband. If a husband divorced his wife for any other reason, he forfeited all interest in his wife's dowry, and also any property he brought into the marriage.

The above sketch of the legislation prior to the time of Justinian, while it indicates a desire to place the husband and wife on something like terms of equality as regards divorce, indicates also, by its forbidding remarriage and by its pecuniary provisions in certain cases, a sense in the community of the importance in the public interest of restraining the violation of the contract of marriage. But to the Roman marriage was primarily a contract, and therefore side by side with this legislation there always existed a power of divorce by mutual consent. We must now turn to those principles of the Christian religion which, in combination with the legislation above described, produced the law formulated by Justinian.

_The Christian View of Divorce._--The Christian law of divorce as enunciated by its Founder was expressed in a few words, but these, unfortunately, by no means of agreed interpretation. To appreciate them it is necessary to consider the enactment of the Mosaic law, which also was expressed in few words, but of a meaning involved in much doubt. The phrase in Deut. xxiv. 1-4, which is translated in the Authorized Version "some uncleanness," but in the Revised Version, "some unseemly thing," and which is the only cause stated to justify the giving of a "bill of divorcement," was limited by the school of Shanmai to moral delinquency, but was extended by the rival school of Hillel to causes of trifling importance or even to motives of caprice. The wider interpretation would seem to be supported by the words of Christ (Matt. v. 31), who, in indicating His own doctrine in contradistinction to the law of Moses, said, "Whosoever shall put away his wife, saving for the cause of fornication ([Greek: porneias]), causeth her to commit adultery; and whosoever shall marry her that is divorced committeth adultery." The meaning of these words of Christ Himself has been involved in controversy, which perhaps was nowhere carried on with greater acuteness or under more critical conditions than within the walls of the British parliament during the passage of the Divorce Act of 1857. That they justify divorce of a complete kind for moral delinquency of some nature is supported by the opinion probably of every competent scholar. But scholars of eminence have sought to restrict the meaning of the [Greek: logos porneias] to antenuptial incontinence concealed from the husband, and to exclude adultery. The effect of this view commends itself to the adherents of the Church of Rome, because it places the right to separation between husband and wife, not on a cause supervening after a marriage, which that Church seeks to regard as absolutely indissoluble, but on invalidity in the contract of marriage itself, and which may therefore render the marriage liable to be declared void without impugning its indissoluble character when rightly contracted. The narrower view of the meaning of [Greek: porneias] has been maintained by, among others, Dr Dollinger (_First Ages of the Church_, ii. 226); but those who will consider the arguments of Professor Conington in reply to Dr Dollinger (_Contemp. Review_, May 1869) will probably assign the palm to the English scholar. A more general view points in the same direction. It is quite true that under the Mosaic law antenuptial incontinence was, as was also adultery, punishable with death. But when we consider the effect of adultery not only as a moral fault, but as violating the solemn contract of marriage and vitiating its objects, it is inconceivable that Christ, in employing a term of general import, intended to limit it to one kind, and that the less serious, of incontinence.

_Effect of Christianity on the Law of Rome._--The modification in the civil law of Rome effected by Justinian under the joint influence of the previous law of Rome and that of Christianity was remarkable. Gibbon has summed up the change effected in the law of Rome with characteristic accuracy: "The Christian princes were the first who specified the just causes of a private divorce; their institutions from Constantine to Justinian appear to fluctuate between the customs of the empire and the wishes of the Church; and the author of the Novels too frequently reforms the jurisprudence of the Code and Pandects." Divorce by mutual consent, hitherto, as we have seen, absolutely free, was prohibited (Nov. 117) except in three cases: (1) when the husband was impotent; (2) when either husband or wife desired to enter a monastery; and (3) when either of them was in captivity for a certain length of time. It is obvious that the two first of these exceptions might well commend themselves to the mind of the Church, the former as being rather a matter of nullity of marriage than of divorce, the latter as admitting the paramount claims of the Church on its adherents, and not inconsistent with the spirit of the words of St Paul himself, who clearly contemplated a separation between husband and wife as allowable in case either of them did not hold the Christian faith (1 Cor. vii. 12). At a later period Justinian placed a further restriction or even prohibition on divorce by consent by enacting that spouses dissolving a marriage by mutual consent should forfeit all their property, and be confined for life in a monastery, which was to receive one-third of the forfeited property, the remaining two-thirds going to the children of the marriage. The cause stated for this remarkable alteration of the law, and the abandonment of the conception of marriage as a civil contract _ut non Dei judicium contemnatur_ (Nov. 134), indicates the influence of the Christian idea of marriage. That influence, however, did not long continue in its full force. The prohibitions of Justinian on divorce by consent were repealed by Justin (Nov. 140), his successor. "He yielded," says Gibbon, "to the prayers of his unhappy subjects, and restored the liberty of divorce by mutual consent; the civilians were unanimous, the theologians were divided, and the ambiguous word which contains the precept of Christ is flexible to any interpretation that the wisdom of a legislature can demand." It was difficult, the enactment stated, "to reconcile those who once came to hate each other, and who, if compelled to live together, frequently attempted each other's lives."

Justinian further re-enacted, with some modifications, the power of divorce by a husband or wife against the will of the other. Divorce by a wife was allowed in five cases (Nov. 117): (1) the husband being party or privy to conspiracy against the state; (2) attempting his wife's life, or failing to disclose to her plots against it; (3) attempting to induce his wife to commit adultery; (4) accusing his wife falsely of adultery; (5) taking a woman to live in the house with his wife, or, after warning, frequenting a house in the same town with any woman other than his wife. If a wife divorced her husband for one of these reasons, she recovered her dowry and any property brought into the marriage by her husband for life with reversion to her children, or if there were no children, absolutely. But if she divorced him for any other reason, the provisions of the enactment of Theodosius and Valentinian were to apply. A husband was allowed to divorce his wife for any one of seven reasons: (1) failure to disclose to her husband plots against the state; (2) adultery; (3) attempting or failing to disclose plots against her husband's life; (4) frequenting dinners or balls with other men against her husband's wishes; (5) remaining from home against the wishes of her husband except with her parents; (6) going to the circus, theatre or amphitheatre without the knowledge or contrary to the prohibition of her husband; (7) procuring abortion. If the husband divorced his wife for any one of these reasons he retained the dowry absolutely, or if there were children, with reversion to them. If he divorced her for any other reason, the enactments of Theodosius and Valentinian applied. In any case of a divorce, if the father or mother of either spouse had advanced the dowry and it would be forfeited by an unreasonable divorce, the consent of the father or mother was necessary to render the divorce valid.

_Effect of Divorce on Children in the Law of Rome._--The custody of the children of divorced parents was dealt with by the Roman law in a liberal manner. A constitution of Diocletian and Maximian left it to the judge to determine in his discretion to which of the parents the children should go. Justinian enacted that divorce should not impair the rights of children either as to inheritance or maintenance. If a wife divorced her husband for good cause, and she remained unmarried, the children were to be in her custody, but to be maintained by the father; but if the mother was in fault, the father obtained the custody. If he was unable, from want of means, to support them, but she was able to do so, she was obliged to take them and support them. It is interesting to compare these provisions as to children with the practice at present under English law, which in this respect reflects so closely the spirit of the law of Rome.

_The Canon Law of Divorce._--The canon law of Rome was based on two main principles: (1) That there could be no divorce a _vinculo matrimonii_, but only _a mensa et thoro_. The rule was stated in the most absolute terms: _"Quamdiu vivit vir licet adulter sit, licet sodomita, licet flagitiis omnibus coopertus, et ab uxore propter haec scelera derelictus, maritus ejus reputatur, cui alterum vivum accipere non licet"_ (Caus. 32, Quaest. 7, c. 7). (2) That no divorce could be had at the will of the parties, but only by the sentence of a competent, that is to say, an ecclesiastical, court. In this negation of a right to divorce a _vinculo matrimonii_ lies the broad difference between the doctrines of the Eastern and Western Churches of Christendom. The Greek Church, understanding the words of Christ in the broader sense above mentioned, has always allowed complete divorce with a right to remarry for the cause of adultery. And it is said that the form at least of an anathema of the council of Trent was modified out of respect to difference on the part of the Greek Church (see Pothier 5. 6. 21). The papal canon law allowed a divorce a _mensa et thoro_ for six causes: (1) adultery or unnatural offences; (2) impotency; (3) cruelty; (4) infidelity; (5) entering into religion; (6) consanguinity. The Church, however, always assumed to itself the right to grant licences for an absolute divorce; and further, by claiming the power to declare marriages null and void, though professedly this could be done only in cases where the original contract could be said to be void, it was, and is to this day, undoubtedly extended in practice to cases in which it is impossible to suppose the original contract really void, but in which a complete divorce is on other grounds desirable.

DIVORCE IN ENGLAND

In England the law of divorce, originally based on the canon law of Rome, underwent some, though little, permanent change at the Reformation, but was profoundly modified by the exercise of the power of the state through legislation. From the canon law was derived the principle that divorce could legally take place only by sentence of the court, and never at the will of the parties. Complete divorce has never been governed by any other principle than this; and in so far as an incomplete divorce has become practicable at the will of the parties, it has been by the intervention of civil tribunals and contrary to the law of the ecclesiastical courts. Those courts adopted as ground for divorce _a mensa et thoro_ the main grounds allowed by Roman canon law, adultery and cruelty (Ayliffe, 22; Co. Lit. 102; 1 Salk. 162; Godolphin Abridg. 495). The causes of heresy and of entering into religion, if ever they were recognized in England, ceased to exist at the Reformation.

The principles upon which the English ecclesiastical courts proceeded in divorce _a mensa et thoro_ are those which are still in force, and which (with some modification by statutory enactment) have been administered by judicial tribunals down to the present day. The courts by which the ecclesiastical law, and therefore the law of divorce, was administered were, until 1857, the courts of the various dioceses, including that of the archbishop of Canterbury, known as the Court of Arches, and that of the archbishop of York, known as the Consistory Court of York; but by statute a suitor was prevented from taking proceedings in any court except that determined by the residence of the person against whom proceedings were taken (23 Hen. VIII. c. 9). From these courts an appeal lay to delegates appointed in each case by the crown, until the establishment of the judicial committee of the privy council in 1836, when the appeal was given to the crown as advised by that body.

The proof of adultery (to which Isidore in his _Book of Etymologies_ gives the fanciful derivation of "_ad alterius thorum_") was not by the canon law as received in England restricted by the operation of arbitrary rules. It was never, for example, required, as by the law of Mahomet, that the act should have been actually seen by competent witnesses, nor even that the case should be based on any particular kind of proof. It was recognized that the nature of the offence almost inevitably precluded direct evidence. One rule, however, appears to have commended itself to the framers of the canon law as too general in its application not to be regarded as a principle. The mere confession of the parties was not regarded as a safe ground of conviction; and this rule was formulated by a decretal epistle of Pope Celestine III., and, following it, by the 105th of the Canons of 1604. This rule has now been abrogated; and no doubt it is wiser not to fetter the discretion of the tribunal charged with the responsibility of deciding particular cases, but experience of divorce proceedings tends to confirm the belief that this rule of the canon law was founded on an accurate appreciation of human nature.

Although, therefore, with the above exception, no strict rules of the evidence necessary to establish adultery have ever been established in the English courts, experience has indicated, and in former days judges of the ecclesiastical courts often expressed, the lines upon which such proof may be expected to proceed. It is necessary and sufficient, in general, to prove two things--first the guilty affection towards each other of the persons accused, and, secondly, an opportunity or opportunities of which, if so minded, their passion may have been gratified. It is obvious that any strong proof on either of these points renders strict proof on the other less needful; but when proof on both is afforded, the common sense of a tribunal, acting with a knowledge of human nature, may be trusted to draw the inevitable conclusion.

The definition of cruelty accepted by the ecclesiastical courts as that of the canon law is the same as that which prevails at the present time; and the view of the law taken by the House of Lords in _Russell_ v. _Russell_ (1897 App. Cas. 395) was expressly based on the view of cruelty taken by the authorities of the ecclesiastical law. The best definition by older English writers is probably to be found in Clarke's _Praxis_ (p. 144): "Si maritus fuerit erga uxorem crudelis et ferax ac mortem comminatus et machinatus fuerit, vel eam inhumaniter verbis et verberibus tractaverit, et aliquando venenum loco potus paraverit vel aliquod simile commiserit, propter quod sine periculo vitae cum marito cohabitare aut obsequia conjugalia impendere non audeat ... consimili etiam causa competit viro contra mulierem." Lord Stowell, probably the greatest master of the civil and canon law who ever sat in an English court of justice, has in one of his most famous judgments (_Evans_ v. _Evans_, 1790, 1 Hagg. _Consist._ 35) echoed the above language in words often quoted, which have constituted the standard exposition of the law to the present day. "In the older cases," he said, "of this sort which I have had the opportunity of looking into, I have observed that the danger of life, limb or health is usually insisted as the ground upon which the court has proceeded to a separation. This doctrine has been repeatedly applied by the court in the cases which have been cited. The court has never been driven off this ground. It has always been jealous of the inconvenience of departing from it, and I have heard no one case cited in which the court has granted a divorce without proof given of a reasonable apprehension of bodily hurt. I say an apprehension, because assuredly the court is not to wait till the hurt is actually done; but the apprehension must be reasonable: it must not be an apprehension arising from an exquisite and diseased sensibility of mind. Petty vexations applied to such a constitution of mind may certainly in time wear out the animal machine, but still they are not cases of legal relief; people must relieve themselves as well as they can by prudent resistance, by calling in the succours of religion and the consolation of friends; but the aid of courts is not to be resorted to in such cases with any effect." The risk of personal danger in cohabitation constituted, therefore, the foundation of legal cruelty. But this does not exclude such conduct as a course of persistent ill-treatment, though not amounting to personal violence, especially if such ill-treatment has in fact caused injury to health. But the person complaining must not be the author of his or her own wrong. If, accordingly, one of the spouses by his or her conduct is really the cause of the conduct complained of, recourse to the court would be had in vain, the true remedy lying in a reformation of the real cause of the disagreement.

In addition to a denial of the charge or charges, the canon law allowed three grounds of answer: (1) _Compensatio criminis_, a setoff of equal guilt or recrimination. This principle is no doubt derived from the Roman law and it had the effect of refusing to one guilty spouse the remedy of divorce against the other although equally guilty. It was always accepted in England, although not in other countries, such as France and Scotland, which also followed the canon or civil law. In strictness, recrimination applied to a similar offence having been committed by the party charging that offence. But a decision (1888) of the English courts shows that a wife who had committed adultery could not bring a suit against her husband for cruelty (_Otway_ v. _Otway_ 13 P. D. 141). (2) _Condonation._ If the complaining spouse has, in fact, forgiven the offence complained of, that constitutes a conditional bar to any proceedings. The main and usual evidence of such forgiveness is constituted by a renewal of marital intercourse, and it is difficult-perhaps impossible-to imagine any case in which such intercourse would not be held to establish condonation. But condonation may be proved by other acts, or by words, having regard to the circumstances of each case. Condonation is, however, always presumed to be conditional on future good behaviour, and misconduct even of a different kind revives the former offence. (3) _Connivance_ constitutes a complete answer to any charge. Nor need the husband be the active agent of the misconduct of the wife. Indifference or neglect imputable to a corrupt intention are sufficient. It will be seen presently that modern statute law has gone further in this direction. It is to be added that the connivance need not be of the very act complained of, but may be of an act of a similar kind. A learned judge, recalling the classical anecdote of Maecenas and Galba, said, "A husband is not permitted to say _non omnibus dormio_." The ecclesiastical courts also considered themselves bound to refuse relief if there was shown to be _collusion_ between the parties. In its primary and most general sense collusion was understood to be an agreement between the parties for the purpose of deceiving the court by false or fictitious evidence; for example, an agreement to commit, or appear to commit, an act of adultery. Collusion, however, is not limited to the imposing of other than genuine evidence on the court. It extends to an agreement to withhold any material evidence; and indeed is carried further, and held to extend to any agreement which may have the effect of concealing the real and complete truth from the court (see _Churchward_ v. _Churchward_, 1894, p. 161). This doctrine was of considerable importance even in the days when only divorces _a mensa et thoro_ were granted, because at that time the parties were not permitted to separate by consent. At the present day it has become, with regard to divorce a _vinculo matrimonii_, a rule of greater and of more far-reaching importance.

The canon law as accepted in England, while allowing divorces of the nature and for the causes above mentioned, actively interfered to prevent separation between husband and wife in any other manner. A suit known as a suit for restitution of conjugal rights could be brought to compel cohabitation; and on evidence of the desertion of either spouse, the court ordered a return to the matrimonial home, though it carried no further its authority as to the matrimonial relations within the home. To this suit an agreement between the parties constituted no answer. But an answer was afforded by any conduct which would have supported a decree of divorce _a mensa et thoro_. It is a question whether, indeed, the ecclesiastical courts would not have gone further, and refused a decree of restitution of conjugal rights on grounds which might appear adequate to justify such refusal, though not sufficient on which to ground a decree of divorce. The view of the court of appeal and the House of Lords has given some colour to this opinion, and certainly the court of appeal has held, although perhaps somewhat hastily, that the effect of a modern statute has been to allow the court to refuse restitution of conjugal rights for causes falling short of what would constitute ground for divorce (_Russell_ v. _Russell_, 1895, p. 315).

The ecclesiastical courts provided for the pecuniary rights of the wife by granting to her alimony during the progress of the suit, and a proper allowance after its termination in cases in which she was successful. Such payments were dependent on the pecuniary means, or _faculties_, as they were termed, of the husband, and were subject to subsequent increase or diminution in proper cases. But the ecclesiastical courts did not deal with the custody of the children of the marriage, it being probably considered that that matter could be determined by the common law rights of the father, or by the intervention of the court of chancery.

The canon law fixed no period of limitation, either in respect of a suit for divorce or for restitution of conjugal rights; but, as regards at least suits for divorce, any substantial delay might lead to the imputation of acquiescence or even condonation. To that extent, at least, the maxim _vigilantibus non dormientibus jura subveniunt_ applied.

It is remarkable that desertion by either party to a marriage, except as giving rise to a suit for restitution, was not treated as an offence by canon law in England. It formed no ground for a suit for divorce, and constituted no answer to such a suit by way of recrimination. It might indeed deprive a husband of his remedy if it amounted to connivance, or perhaps even if it amounted only to culpable neglect.

The canon law, as administered in England, has kept clear the logical distinction which exists between dissolving a marriage and declaring it null and void. The result has been that, in England at least, the two proceedings have never been allowed to pass into one another, and a complete divorce has not been granted on pretence of a cause really one for declaring the marriage void _ab initio_. But for certain causes the courts were prepared to declare a marriage null and void on the suit of either party. There is, indeed, a distinction to be drawn between a marriage void or only voidable, though in both cases it became the subject of a similar declaration. It was void in the cases of incapacity of the parties to contract it, arising from want of proper age, or consanguinity, or from a previous marriage, or from absence of consent, a state of things which would arise if the marriage were compelled by force or induced by fraud as to the nature of the contract entered into or the personality of the parties. It is to be remarked that, in England at least, the idea of fraud as connected with the solemnization of marriage has been kept within these narrow limits. Fraud of a different kind, such as deception as to the property or position of the husband or wife, or antecedent impurity of the wife, even if resulting in a concealed pregnancy, has not in England (though the last-mentioned cause has in other countries) been held a ground for the vitiation of a marriage contract. A marriage was voidable, and could be declared void, on the ground of physical incapacity of either spouse, the absence of intercourse between the parties after a sufficient period of opportunity being almost, if not quite, conclusive on this subject.

With regard to one cause of nullity the legislation interfered from consideration, it is said, of a case of special hardship. Before the Marriage Act of 1835 marriages within the prohibited degrees of consanguinity and affinity were only voidable by a decree of the court, and remained valid unless challenged during the lifetime of both the parties. But this act, while providing that no previous marriage between persons within the prohibited degrees should be annulled by a decree of the ecclesiastical court pronounced in a suit depending at the time of the passing of the act, went on to render all such marriages thereafter contracted in England "absolutely null and void to all intents and purposes whatever."

Another suit was allowed by the ecclesiastical courts which should be mentioned, although its bearing on divorce is indirect. This was the suit for _jactitation of marriage_, which in the case of any person falsely asserting his or her marriage to another, allowed such person to be put to perpetual silence by an order of the court. This suit, which has been of rare occurrence (though there was an instance, _Thompson_ v. _Rourke_, in 1892), does not appear to have been used for the purpose of determining the validity of a marriage. The legislature, has, however, in the Legitimacy Declaration Act of 1858, provided a ready means by which the validity of marriages and the legitimacy of children can be determined, and the procedure provided has repeatedly been utilised.

It should be added, as a matter closely akin to the proceedings in the ecclesiastical courts, that the common law took cognizance of one phase of matrimonial relations by allowing an action by the husband against a paramour, known as an action for criminal conversation. In such an action a husband could recover damages estimated according to the loss he was supposed to have sustained by the seduction and loss of his wife, the punishment of the seducer not being altogether excluded from consideration. Although this action was not unfrequently (and indeed, for the purposes of a divorce, necessarily) brought, it was one which naturally was regarded with disfavour.