Note 180 — Chapter XI · HISTORY OF SEPARATION AND DIVORCE UNDER ENGLISH AND ECCLESIASTICAL LAW

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.