Note 49 — Chapter XI · HISTORY OF SEPARATION AND DIVORCE UNDER ENGLISH AND ECCLESIASTICAL LAW

This disparity is variously explained. Freisen, op. cit., 771, sees here the influence of the Roman law (c. 1, Cod. ad leg. Jul. [ix-9]), which he alleges judges the man more leniently than the woman; but Geffcken, op. cit., 22, 23, explains it more reasonably as the result of a difference of local practice, since such a discrimination between man and woman "the church had thus far zealously opposed;" and, besides, he insists that the passage from the code is not in point. It should be remembered, also, that some of the early Fathers, as we have seen, followed the illiberal principles of the Mosaic law discriminating against the woman; this prejudice may have prevailed at the Council of Arles. On these councils see also Esmein, op. cit., II, 55, 56; Loening, op. cit., II, 609 ff.