Part 2 — CHAPTER XI HISTORY OF SEPARATION AND DIVORCE UNDER ENGLISH AND ECCLESIASTICAL LAW

[Bibliographical Note XI.—For divorce among the Athenians Meier and Schömann's Der attische Process (Berlin, 1883-87) is important. Assistance has also been given by Hruza, Ehebegründung nach att. Rechte (Leipzig, 1892); idem, Polygamie und Pellikat (Leipzig, 1894); and Müller and Bauer, "Die griech. Privat- und Kriegsalterthümer" (1893), in Müller's Handbuch. The Hebrew law on the subject is well treated by Mielziner, The Jewish Law of Marriage and Divorce (Cincinnati, 1884); and especially by Amram, in his excellent Jewish Law of Divorce (Philadelphia, 1896). In his "Divorce on Condition," in the Green Bag, III, August, 1891, the last-named writer has described a curious device for escaping marriage with a brother-in-law and employed also in cases of long absence. Besides the works of Stubbe, Duschak, Döllinger, and Lichtschein, elsewhere noticed, see Selden, Uxor ebraica (Frankfort, 1673), or the same in his Opera, II (London, 1726); Fraenkel, Grundlinien des mosaisch-talmud. Eherechts (Breslau, 1860); Saalschuetz, Das mosaische Recht (2d ed., Berlin, 1853); and Meyer, Die Rechte der Israeliten, Athener, und Römer (Leipzig, 1862-66).

The leading work on Roman divorce is Wächter's Ueber die Ehescheidungen (Stuttgart, 1821). There is also a good account in the seventh and eighth chapters of Hasse's Das Gütterrecht der Ehegatten nach röm. Recht (Berlin, 1824). Savigny has an article on "Die erste Ehescheidung in Rom," in Abhandlungen der könig. Akad. der Wiss. in Berlin, 1814-16 (Berlin, 1818). Very important also is Rein, Das röm. Privatrecht (Leipzig, 1836); and on divorce in connection with the alleged depravation of morals at the close of the republic there is a fine passage in Lecky, European Morals (3d ed., New York, 1881). The subject is treated by Marche, Historia juris civilis de divortiis (Leipzig, 1764); Langeron, Du divorce en droit romain (Paris, 1857); Morael, Droit romain: du divorce (Paris, 1888); and Combier, Du divorce en droit romain (Paris, 1880). Esmein, Mélanges (Paris, 1886), has a chapter dealing in part with Roman divorce; and in the same volume may be found the best existing treatment of adultery in connection with the Lex Julia de adulteriis. With other matter this law is also considered by Gessert, Ad leg. Jul. de adult. coerc. (Würtemberg, 1795); Haupt, De poena adulterii ex leg. Jul. (Leipzig, 1797); Jörs, Die Ehegesetze des Augustus (Marburg, 1894); and Bennecke in his able monograph Die strafrechtliche Lehre vom Ehebruch (Marburg, 1884), bringing the general history of his subject down to the middle of the fifteenth century. In this connection have likewise been of service Sohm's Institutes and the works of Fustel de Coulanges, Hölder, Rossbach, Karlowa, Unger, Maine, Marquardt, and Zhishman elsewhere described. The ground of the chapter is mainly covered by Woolsey, Divorce and Divorce Legislation (2d ed., New York, 1882); and Glasson, Le mariage civil et le divorce (2d ed., Paris, 1880); as also by the general works of Popp, Ehescheidung (Amberg and Sulzbach, 1800); Tissot, Le mariage, la séparation et le divorce (Paris, 1868); Thwing, The Family (Boston, 1887); Gide, La femme (2d ed., Paris, 1885); Scheurl, Das gemeine deutsche Eherecht (Erlangen, 1882); and there is a concise historical account by Friedericus, De divortio meditationes (Leipzig, 1842).

For the origin and early development of the Christian doctrine, besides the Scriptures, the principle sources are, of course, the writings of the Fathers and the provisions of the first ecclesiastical councils. The most important monograph is Geffcken's Zur Geschichte der Ehescheidung vor Gratian (Leipzig, 1894). The subject is treated in Moy, Das Eherecht der Christen (Regensburg, 1833). There is a good account by Loening, Geschichte des deutschen Kirchenrechts (Strassburg, 1878); and another by Meyrick in his article "Marriage," in the second volume of the Dict. of Christ. Antiquities. The rigid theological point of view is taken by Watkins, Holy Matrimony (London, 1895); and Luckock, History of Marriage (London, 1894). Among similar works, mainly controversial, may be consulted Ap Richard, Marriage and Divorce (London, 1888); Caverno, Treatise on Divorce (Madison, 1889); Hovey, The Scriptural Law of Divorce (Philadelphia, 1866); Greve, Die Ehescheidung nach der Lehre des Neuen Testamentes (Leipzig, 1873); and the anonymous Ueber den einzig wahren Ehescheidungsgrund in der christ. Kirche (Bayreuth, 1838). Standard Catholic treatises are Cigoi, Die Unauflösbarkeit der christ. Ehe (Paderborn, 1895); Didon, Indissolubilité et divorce (4th ed., Paris, 1880); or the German translation of the same by Schneider (Regensburg, 1893); Roskovány, De matrimonio in eccle. cath. (Augustae Vindelicorum, 1837); Scheicher-Binder, Praktisches Handbuch des kath. Eherechts (4th ed., Freiburg, 1891); and especially Perrone, De matrimonio christ. (Leodii, 1861). Pompen has a special Tractatus de dispensationibus et de revalidatione mat. (2d ed., Amsterdam, 1897).

On Germanic law and custom see Tacitus's Germania; the Monumenta Germaniae Historica; and the collections of Thorpe, Schmid, and Liebermann. Heussler's Institutionen, Weinhold's Deutsche Frauen, Grimm's Rechtsalterthümer, Brunner's Rechtsgeschichte, and the similar works of Schroeder, Zoepfl, and Walter have all been consulted. The penitentials, containing evidence of compromise between Teutonic usage and the strict dogmas of the church, may be found in Thorpe, Ancient Laws; Haddan and Stubbs, Councils; Wasserschleben, Bussordnungen (Halle, 1851); and Schmitz, Bussbücher (Mayence, 1883). These have largely superseded the older works of Kuntsmann, Die lateinischen Poenitentialbücher der Angelsachsen (Mayence, 1844); and Hildebrand, Untersuchungen über die germ. Poenitentialbücher (Würzburg, 1851). The penitentials are analyzed by Bennecke, Esmein, and Freisen; also by Hinschius, "Das Ehescheidungsrecht nach den angelsäch. und frank. Bussordnungen," in Zeitschrift für deutsches Recht, XX; and Rosenthal, Die Rechtsfolgen des Ehebruchs nach kan. und deutsch. Recht (Würzburg, 1880). In this connection may also be read Heller, Ueber die Strafe des Ehebruchs (Ulm, 1773); Wächter, Abhandlungen aus dem Strafrechte (Leipzig, 1835), I, dealing with Entführung and Nothzucht; Wilda, Strafrecht (Halle, 1842); and Pollen, Fatal Consequences of Adultery (London, 1772), giving literary and other curiosities of the subject. A useful book is Boehmer's Ueber die Ehegesetze im Zeitalter Karls des Grossen (Göttingen, 1826), discussing the inconsistency of temporal and ecclesiastical legislation regarding divorce; as is also Sdralek's Hinkmars Gutachten über die Ehescheidung des Königs Lothar II. (Freiburg, 1881).

Primary sources for the settlement of the canon law on the subject of divorce are the Decretum of Gratian and the other materials comprised in Richter-Friedberg's Corpus juris canonici. For England Johnson's Canons and Godolphin's Repartorium canonicum (3d ed., London, 1687) are serviceable. The state of the law in the age of the decretalists may be learned from Wunderlich's edition of Tancred's Summa de matrimonio (Göttingen, 1841); and for its historical development the great works of Esmein and Freisen, elsewhere mentioned, are indispensable. Schulte's Lehrbuch and the Lehrbuch of Friedberg cover the subject. In connection with the rise of the jurisdiction of the church should be read Sohm, "Die geist. Gerichtsbarkeit im frank. Reich," in ZKR., IX (Tübingen, 1870). For the matrimonial experiences of Margaret of Scotland, illustrating the facility of divorce by indirect methods under the canon law, see Tait's article in the Dict. of Nat. Biog., XXXVI; and similar material in the Reports of the Historical Manuscripts Commission. For the literature relating to the Council of Trent consult Bibliographical Note VII.

The foundation of the Protestant doctrine of divorce was laid by Martin Luther. His writings on the subject may, of course, be found in his collected works mentioned in Bibliographical Note IX; or in the source-book of Strampff, Luther: Ueber die Ehe (Berlin, 1857); while the more important papers are reprinted in Vol. II of the Kleinere Schriften Dr. Martin Luthers: von Ehe- und Klostersachen (Bielefeld and Leipzig, 1877). An earlier book of a somewhat similar character is Froböse's Dr. Martin Luther's ernste, kräftige Worte über Ehe und eheliche Verhältnisse (Hanover, 1825). In the sixteenth century Luther's relatively conservative teaching regarding the scriptural grounds of divorce is adopted in the main by the theologians Brenz, Wie yn Ehesachen ... zu Handeln (1530); Bugenhagen, Von Ehebruch und Weglaufen (1539); also in the collections of Sarcerius, below mentioned; Chemnitz, Examen concilii tridentini (Frankfort, 1615); Beza, Tractatio de repudiis et divortiis (Geneva, 1569); the jurists Kling, Matrimonialium causarum tractatus (1st ed., Frankfort, 1553; 3d ed., here cited, 1577), being a reprint of the title "De nuptiis" of his Enarrationes in Institutiones (1542); Beust, Tractatus de jure connubiorum (3d ed., Leipzig, 1592); idem, Tractatus de sponsalibus et matrimoniis (Wittenberg, 1586); Schneidewin, Commentarius in Institutiones (1st ed., Wittenberg, 1571); and idem, De nuptiis (Jena, 1585), being a part of the earlier work published by the heirs after the author's death. In the seventeenth century the more stringent tendency is represented by the theologians Bidembach, De causis matrimonialibus tractatus (Frankfort, 1608); Mentzer, De conjugio tractatus (Wittenberg, 1612); and by the jurists Cypräus, De connubiorum jure (Frankfort, 1605); Nicolai, Tractatus de repudiis et divortiis (Dresden, 1685); and Brouwer, De jure connubiorum (Amsterdam, 1665), whose book has the distinction of being placed on the Index. On the other hand, in the age of Luther a more liberal direction is taken by Erasmus, Annat. in Nov. Testam. (Basel, 1515); whose influence, according to Richter, is felt by Zwingli, "Ordnung wie zu Zürich ... über eelich sachen gericht soll werden" (1525): in Richter, Kirchordnungen, I, 21, 22; and his "Commentary on Matthew xix, 9," in Richter, Beiträge, 7; and by Zwingli's disciple Bullinger, Der christlich Ehestand (1579). The laxer tendency is also represented by Lambert of Avignon, De sacro conjugio (Strasburg, 1524); Melanchthon, "De conjugio" (1551), in Opera, I (Erlangen, 1828); Bucer, whose work is mentioned in connection with the English Reformation; the jurist Monner, Tract. de matrimonio et clandestinis conjugiis (Jena, 1561); and in the seventeenth century especially by Hülsemann, Extensio breviarii theologici (3d ed., Leipzig, 1655); and the jurist Forster, De nuptiis (Wittenberg, 1617). The more essential parts of the works of Luther, Brenz, Bugenhagen, Bullinger, and Melanchthon may also be found in that remarkable treasury of materials gathered by Sarcerius, Ein Buch vom heiligen Ehestande (1553); enlarged under title Corpus juris matrimonialis (Frankfort, 1569).

Heading the modern literature is Richter's able Beiträge zur Geschichte des Ehescheidungsrechts in der evang. Kirche (Berlin, 1858), which has the special merit of first classifying the post-Reformation writers on divorce according to their more rigid or more liberal tendencies. The subject is also treated with the usual precision and thoroughness in his Lehrbuch des kath. und evang. Kirchenrechts (8th ed., Leipzig, 1886). Important likewise are Strippelmann, Das Ehescheidungsrecht (Cassel, 1854); Goeschen, "Ehe," in Herzog's Encyclopaedie, III, 666-707 (Stuttgart and Hamburg, 1855); Hauber, "Ehescheidung im Reformations-Jahrhundert," in Jahrbücher für deutsche Theologie (1857), II; Hubrich, Das Recht der Ehescheidung (Berlin, 1891); Buchka, Das mecklenburgische Ehescheidungsrecht (Wismar, 1885); Gräbner, Ueber Desertion und Quasidesertion (Colberg, 1882); and Friedberg, "Beiträge zur Geschichte des brand.-preuss. Eherechts," in ZKR., VIII (Tübingen, 1886-87). Weydmann, Luther (Hamburg and Gotha, 1850), has two chapters on Luther's views and his matrimonial life. The second and third parts of Vol. III of Schulte's Geschichte der Quellen und Litteratur des can. Rechts (Stuttgart, 1880) provide a mass of valuable biographical and bibliographical material for the whole post-Reformation period.

Richter's well-edited and now exceedingly scarce Kirchenordnungen des sechszehnten Jahrhunderts (Weimar, 1846) contains the legislation of the Evangelical churches on marriage and divorce. Especially important for the seventeenth century is the very rare Des Herzogthums Wirtemberg ernuerte Ehe- und Ehe-Gerichts-Ordnung (Stuttgart, 1687), marking the beginning of a more liberal treatment of the divorce problem. The ecclesiastical ordinances are analyzed by Goeschen, Doctrina de matrimonio (Halle, 1848); and by Dietrich, Evangelisches Ehescheidungsrecht (Erlangen, 1892). Original divorce decrees and opinions are collected in Bruckner's Decisiones juris matrimonialis, II (Gotha, 1724); and several cases are published by Schleusner, "Anfänge des protest. Eherechts," in ZKG., XIII (Gotha, 1892). The best monographs on the evolution of jurisdiction and process in such causes, aside from the work of Dietrich just mentioned, are Geffcken, "Zur ältesten Geschichte und ehegericht. Praxis des Leipzig. Konsist.," in ZKR., 3. Folge, IV (Freiburg and Leipzig, 1894); Hinschius, "Beiträge zur Geschichte des Desertionsprocesses," ibid., II (Berlin, 1862); and especially Stölzel, Ueber das landesherrliche Ehescheidungsrecht (Berlin, 1891), the first part of which having already appeared in ZKR., XVIII (Freiburg and Tübingen, 1883). Stölzel holds that the authority of the chief magistrate to grant divorce is originally a right of episcopal dispensation, and that his authority is not superseded by the imperial law of 1875. On the controversy growing out of this dual question see Meurer, Das landesherrliche Ehescheidungsrecht (Freiburg, 1891); and compare Scheurl, "Die Ablösung des Eherechts von dem Kirchenrecht," in ZKR., XIII (Tübingen, 1876); Buchka, "Das Eheschliessungsrecht," ibid., XVI; Sicherer, Personnenstand und Eheschliessung (Erlangen, 1879); the two dissertations of Wasserschleben, each entitled Das Ehescheidungsrecht kraft landesh. Machtvollkommenheit (Giessen, 1877; Berlin, 1880); and Hinschius, Das Reichsgesetz (3d ed., 1890). On the rise of the early consistorial courts see especially Mejer, "Anfänge des Wittenberger Consistoriums," in ZKR., XIII (Tübingen, 1876); idem, "Zur Geschichte des ältesten protest. Eherechts," ibid., XVI (Tübingen, 1881); both articles being reprinted with other matter in his Zum Kirchenrecht des Reformationsjahrhunderts (Hanover, 1891).

Since the Reformation the questions of the proper grounds of divorce and of the remarriage of divorced persons have given rise to perennial discussion. Among the many writings so produced may be mentioned Gerlach, Kirchenrechtliche Untersuchung (Erlangen, 1839); Savigny, "Darstellung der in den preuss. Gesetzen über die Ehescheidung unternommenen Reform," in Vermischte Schriften, V (Berlin, 1850); Müller, Ueber Ehescheidung und Wiederverehlichung geschiedener Gatten (Berlin, 1855); Hundrich, Ueber Ehen und Scheidungen (Breslau, 1855); Seidler, Beiträge zur Reform der preuss. Gesetzgebung (Nordhausen, 1861); Hoyer, Die Ehescheidungsfrage (Berlin, 1859); Scheurl, Zur praktischen Lösung der Ehescheidungsfrage (Nürnberg, 1861); Harless, Die Ehescheidungsfrage (Stuttgart, 1861); Bräunig, Das Recht der Ehescheidung (Zwickau, 1861); Huschke, Was lehrt Gottes Wort über die Ehescheidung? (Leipzig and Dresden, 1860); idem, Beleuchtung der Einwürfe gegen meine Schrift (Leipzig and Dresden, 1861). Among the many Latin dissertations on the subject are Majer, De separatione cohabitationis (Tübingen, 1675); Eckstein, De divortio ex causa desertionis (Tübingen, 1675); Wagner, De divortio, et convictus conjugalis separatione (Magdeburg, 1723); Memminger, De divortio propter insidias vitae structas (Halle, 1738); Struvvius, De jure divortiorum (Jena, 1735); Seiff, De divortio totali (Giessen, 1740); Mossheim, De divortio (Jena, 1737, 1773); Scopp, Tractatus, de jure divortiorum (Frankfort and Leipzig, 1756); Wunderlich, De separatione a thoro et mensa (Jena, 1774); and especially the Controversiae circa jura divortiorum (2d ed., Halle, 1729), being a reprint of tracts of Kayser, Lange, and Michaelis. For the more recent development of the law in German lands see Schilling, Der Ehescheidungsprocess in den sächsischen Gerichten (Leipzig, 1831); Ehegerichts-Ordnung für den Kanton Basel-Stadtheil (Basel, 1857); Lauenstein, Hannoverisches Eherecht und Process-Verfahren (Hanover, 1869); Peters, Die Ehescheidung (Berlin, 1881); Wasserschleben, Das Ehescheidungsrecht (Berlin, 1887); Hergenhahn, Das Eheschliessungs- und Ehescheidungs-Recht (Hanover, 1890-93); Ney, Das Kirchenrecht (Berlin, 1895); Part II of Lehr, Le mariage, le divorce, et la séparation (Paris, 1899); Erles, Ehescheidungsrecht und Ehescheidungsprozess (2d ed., Berlin, 1900); and Dedekind, Das protest. Ehescheidungsrecht und Verwandtes (Braunschweig, 1872), containing decisions extending over many years with full bibliographical citations.

Of primary importance for the Reformation in England are the writings of Becon, Hooper, Tyndale, and Whitgift, all, with the Original Letters, comprised in the publications of the Parker Society and described in Bibliographical Note IX. The radical doctrines of Bucer's De regno Christi (1557) were supported by Milton, who published an English version under title of "The Judgment of Martin Bucer," in Prose Works, III. Pocock's Records of the Reformation: The Divorce, 1527-1533 (Oxford, 1870), has placed within easy reach a fine collection of original materials relating to Henry VIII.'s famous cause; and Huth, The Marriage of Near Kin (2d ed., London, 1887), has provided a bibliography of the extensive literature to which it has given rise. For the whole period Burnet's History of the Reformation (London, 1850) is of service. The state of public sentiment is reflected in Raynold's Defence of the Judgment of the Reformed Churches (1609, 1610); the opposing work of Bunny, Of Divorce for Adultery, And Marrying againe: that there is no sufficient warrant so to do (Oxford, 1610; prepared for publication in 1595); and the curious Lawes Resolutions of Womens Rights (London, 1632). The corruption and injustice often attending the proceedings of the old spiritual courts in actions for annulment of wedlock are revealed in Archbishop Abbot's The Case of Impotency As Debated in England, In that Remarkable Tryal An. 1613, between Robert, Earl of Essex, and the Lady Frances Howard (London, 1715), in which King James I. appears in the rôle of pander to the lust of his guilty favorite. The publication of this book, a century after it was written, appears to have been suggested by the similar Pleadings for the Marquis de Gesvres against the Marchioness (London, 1714). In this connection may also be mentioned as illustrative material the Cases of Divorce for Several Causes (London, 1715); and the Crim. Con. Actions and Trials and other Legal Proceedings relating to Marriage before the passing of the present Divorce Act (London, n. d.). With these may be compared the modern case Ehescheidungs-Process Colin-Campbell (London, 1886). For the Stuart period have also been used Barrington, Observations Upon the Statutes (2d ed., London, 1766); Hale, History of the Pleas of the Crown (London, 1800); Coke, Reports (London, 1826); his Institutes; and the Reports of Croke, Kelyng, and Marche.

Milton's "Doctrine and Discipline of Divorce," "Tetrachordon," and "Colasterion" may be found in Vols. III and IV of his Prose Works (London, 1889-90). The only special work on parliamentary divorce is that contained in Macqueen's Practical Treatise on the Appellate Jurisdiction of the House of Lords and Privy Council (London, 1842). There are a number of papers relating to the early cases in the Reports of the Historical Manuscripts Commission. Morgan, Marriage, Adultery, and Divorce (Oxford, 1826), has a long account; and the Lord Roos suit gave rise to The Case of Divorce and Re-Marriage (London, 1673). The proceedings in the Northampton case may be found in Howell's State Trials, XII.

The Statutes at Large and Hansard's Parliamentary Debates are, of course, in frequent requisition. For the reform of the laws relating to affinity and divorce important sources are the "First Report of the Commissioners" (affinity), in Brit. Documents, 1847-8, XXVIII (London, 1848); "First Report of the Commissioners" (divorce), ibid., 1852-3, XL (London, 1853); "Evidence before the Select Committee of the House of Lords, 1844" (divorce), reprinted ibid.; A Return giving an Outline of Marriage Laws, and the State of the Law of Divorce, in three parts (London, 1894); Return of the Number of Divorces, Part I, "Foreign Countries;" Part II, "Brit. Colonies"(London, 1895-96); and the Report of the Upper House of the Convocation of Canterbury, 1885 (divorce).

The development of a liberal sentiment in contemporary literature may be traced in A Treatise Concerning Adultery and Divorce (London, 1700); Two Cases: The First of Adultery and Divorce (London, 1702); the anonymous Essay upon Divorcement (London, 1715), replying to Milton; Salmon, A Critical Essay Concerning Marriage (London, 1824), accepting Milton's views; Cri d'une honnête femme qui réclame le divorce (London, 1770); Observations on the Marriage Laws particularly in reference to the Case of Desertion (London, 1815); and Plea for an Alteration of the Divorce Laws (London, 1831). With these writers may be compared Ireland, Nuptiae sacrae (London, 1801, 1821, 1830), opposing Bishop Horsley's argument that in case of divorce the Scriptures directly prohibit the marriage of the adulterer with the adulteress; Tebbs, Essay on the Scripture Doctrines of Adultery and Divorce (London, 1822), too harshly accused of plagiarism by the author of the preceding book; Keble, Sequel of the Argument against immediately repealing the Laws which treat the Nuptial Bond as indissoluble (Oxford, 1857), opposing the proposed divorce law; and Browne, The Marriage of Divorced Persons in Church (London and New York, 1896), taking a reactionary position.

Important for the chapter are Glasson, Histoire du droit et des institutions ... de l'Angleterre (Paris, 1882-83); Cleveland, Woman under the English Law (London, 1896); Barclay, La femme anglaise (Paris, 1896); Lehr, Le mariage, le divorce, et la séparation (Paris, 1899); Lecky, Democracy and Liberty (New York, 1896); Neubauer, "Ehescheidung im Auslande," in ZVR., VII (Stuttgart, 1887); Swinderen, "Ueber das Gütterrecht der Ehefrau in England," ibid., V (Stuttgart, 1884); Hirschfeld, "The Law of Divorce in England and in Germany," in Law Quarterly Review, XIII, October (London, 1897); Montmorency, "The Changing Status of a Married Woman," ibid., April (London, 1897); and the able article "Divorce," in Law Review (English), I (London, 1845). The absurd conflicts of English and Scottish law, as illustrated especially by Lolley's case, are discussed in Brougham's "Discourse on the Law of Marriage, Divorce, and Legitimacy" (1835) and his "Speech on the Scotch Marriage and Divorce Bills" (1835), both in Speeches, III (London, 1838); Fraser, Conflict of the Laws in Case of Divorce (Edinburgh, 1860); and Fergusson, Reports of Some Decisions (Edinburgh, 1817); while the proceedings in divorce under the old law are treated by Poynter, Doctrine and Practice of the Ecclesiastical Courts in Doctors Commons (London, 1822). Besides the technical treatises of Bishop, Geary, Ernst, and Hammick may be consulted Spence, Equitable Jurisdiction (Philadelphia, 1846); Baker, Husband and Wife and the Married Women's Property Act, 1882 (London, 1882); Barrett-Leonard, The Position in Law of Woman (London, 1883); Shelford, Marriage and Divorce (London, 1841); Browne, Divorce and Alimony (Philadelphia, 1890); Browning, Practice and Procedure of the Court for Divorce (London, 1862); idem, Exposition of the Laws of Marriage and Divorce (London, 1872); and Harrison, Probate and Divorce (4th ed., London, 1891). Among the works elsewhere described from which aid has been derived are those of Bracton, Blackstone, Reeves, Burn, Jeaffreson, Lingard, Wharton, Pollock and Maitland, and Haggard, Reports of Cases in the Consistory Court of London (London, 1822).

For the literature relating to marriage with a deceased wife's sister and other kindred see a footnote below and the elaborate bibliography by Huth in the work already mentioned.]

I. THE EARLY CHRISTIAN DOCTRINE AND THE THEORY OF THE CANON LAW

a) Historical elements of the Christian teaching.—According to the spirit of the earliest Christian teaching divorce, properly so called, is strongly condemned, though by a strict interpretation of its letter it may not be entirely forbidden. Between the first assertion of the new doctrine and the final triumph of the canonical theory of absolute indissolubility of the marriage bond intervenes a struggle of twelve hundred years, whose more salient features may now be sketched in rapid outline.

To understand the influences which aided in molding the conceptions of the founders of the Christian church relative to marriage and divorce, one must first of all notice the legal and social environment. By each of the three systems of law with which originally the Christians were most acquainted marriage was treated as a private or lay contract, and its dissolution was therefore freely allowed. Among the early Greeks, at any rate in the Homeric age, divorce is thought, on slender evidence, to have been entirely unknown,[1] although the practice arose later. By the Athenian law, which probably was not entirely supplanted by the Roman until 212 A.D.,[2] it was freely granted to either spouse. The benefit inured, however, mainly to the husband, since to begin proceedings for a divorce the wife was required to present in person to the archon a written statement of her desire; and this, in a society where popular sentiment relegated woman to a seclusion truly oriental, it was in practice exceedingly hard to do.[3]

By the Jewish law, as it still existed at the dawn of the present era, divorce was the one-sided privilege of the man.[4] At most there was only a faint trace of the woman's later right, sanctioned by the Talmud, of demanding a separation.[5] Legally, for the slightest reason, as the school of Hillel justly maintained, the husband could put away the wife by simply handing her a "get" or bill of divorce.[6] By the written law only in two cases, for grave misconduct, was he deprived of this power;[7] though in practice there were several ameliorating conditions which tended to put a check upon arbitrary action. Thus, while divorce was a private transaction, certain formalities had to be observed in connection with the "get" which secured the restraining influence of publicity;[8] and in case the wife was unjustly repudiated the dower, representing the ancient mohar, or purchase price of the bride, had to be paid to her from the husband's property.[9] Moreover, some of the limitations of the husband's despotic power recognized by the Mishnah or oral law may already have been in force; and the highest ethical sentiment among the Jews had long been decidedly against too great freedom of divorce. It was the rabbi's duty as much as possible to discourage it and to effect reconciliations between husband and wife.[10]

Negatively, however, it was the later law of Rome which had most to do with shaping the ideas of the Christian Fathers relative to the nature of marriage and the doctrine of divorce.[11] By each of the three ancient forms of marriage the wife came or might come under the power of the husband, in manu viri. In the family she was legally regarded as being in a daughter's place, in loco filiae;[12] and in each case divorce was solely the husband's prerogative.[13] But by the beginning of our era all these older and stricter forms, with their consequent one-sided right of separation, had been practically superseded by free contract in which the husband and wife were placed on an equal footing.[14] By this form marriage became a simple private agreement. The wife did not pass under the manu of the husband. She retained full control of her property, being in this regard, as it were, temporarily deposited at her husband's side;[15] while divorce became a formless private transaction to which the woman was as freely entitled as was the man.[16] No intervention of court or magistrate was essential. So far, indeed, was carried the theory of absolute liberty of either spouse to dissolve the contract that, according to Cicero, the jurists in one case were in doubt whether a divorce did not legally arise ipso facto through the consummation of a second marriage by one of the parties during the lifetime of the other.[17] Augustus, however, introduced an important change in the interest of publicity, requiring the party wishing a divorce to declare to the other his purpose in the presence of seven witnesses, who must be Roman citizens of full age; otherwise the divorce to be null and void.[18] But there was no intention through this condition of establishing the jurisdiction of the state in the matter of divorce, which remained, as before, a private legal act of the interested persons. "Still less was it the purpose of the state to put any material restriction upon the freedom of divorce."[19] To this liberty there was but one exception. The freedwoman might not repudiate her patron, her former master, who had taken her in marriage.[20] In all other cases the divorce, however arbitrary or unjust, was legally effective. There was no action for the restitution of conjugal rights; though the responsible party might in certain cases suffer pecuniary damage.[21]

What were the moral and social results of this excessive freedom of divorce? To many the answer seems easy enough; for during the later republic and the early empire the laxity of the nuptial bond became a notorious scandal. At the capital, and especially in the imperial circle, wives as well as husbands gave free rein to their licentious passions. Marriage became unpopular. A recent historian even declares that "almost always" it was ended by divorce.[22] Already in the age of the Gracchi, Metellus the Macedonian cynically exclaimed: "Romans, if we could get along without wives, assuredly none of us would accept so grievous a burden; but since nature has ordained that one cannot live easily with them, nor live without them, let us sacrifice the happiness of our short life to the perpetuity of our nation."[23] Later even the most distinguished and reputable men, as if in mockery of wedlock, put away their wives on purely selfish or absurdly trivial grounds.[24] To believe the exaggerations of the satirists, one changed his partner almost as often as the cut of his garment.[25] "Seneca denounced this evil with especial vehemence, declaring that divorce in Rome no longer brought with it any shame, and there were women who reckoned their years rather by their husbands than by the consuls."[26] Nevertheless, the abuse was more a result than a cause of the gradual decline of Roman morals during the two centuries following the conquest of Carthage.[27] Doubtless, the state in neglecting to exercise a proper jurisdiction in this field had abrogated a function important for her own stability. Proper restraints would have lessened the evil. But the character of the law was very far from being its sole, or even its primary, cause. "In a purer state of public opinion," well observes Lecky, "a very wide latitude of divorce might probably have been allowed to both parties, without any serious consequences. The right of repudiation which the husband had always possessed was, as we have seen, in the Republic never or very rarely exercised. Of those who scandalised good men by the rapid recurrence of their marriages, probably most, if marriage had been indissoluble, would have refrained from entering into it.... A vast wave of corruption had flowed in upon Rome, and under any system of law it would have penetrated into domestic life. Laws prohibiting all divorce have never secured the purity of married life in ages of great corruption, nor did the latitude which was accorded in imperial Rome prevent the existence of a very large amount of female virtue."[28] Nor, it may be added, does it appear that the family life of the people at large, notably that of the middle classes in the provinces, was seriously tainted by the social corruption of the capital, where all the causes of moral degeneration were especially active.

It is, however, not surprising that the founders of the Christian church should have regarded the laxity of the marriage bond as a sign, if not the primary cause, of the degradation of Roman society. From the beginning an earnest effort is made so far as possible to restrict the liberty of separation and to prohibit the persons separated on proper grounds from contracting further marriage. The various passages of the New Testament relating to the subject are disjointed and confusing in their details.[29] Many vital questions are either completely ignored or left in such obscurity as to open the way for wide divergence of doctrine and the bitter controversies of future ages, especially those of the Reformation period. According to the fundamental teaching of Jesus, as reported by Matthew, the husband is forbidden to put away the wife except for unfaithfulness.[30] Divinely created as male and female, "they twain shall be one flesh;" and "what therefore God hath joined together, let not man put asunder."[31] Whether for the same reason the woman may put away the man, or whether either the innocent or the guilty party may contract a second marriage, we are here not expressly informed. Inferences may, of course, be drawn by assuming that Jesus had the principles of the Jewish law in mind; but this mode of procedure is scarcely satisfying.[32] Nor do the other sacred writers throw any clear light on these important questions. Rather do they deepen the obscurity; for both Mark and Luke appear absolutely to prohibit divorce, not expressly admitting even the one ground of separation granted on the authority of Matthew. Moreover, Mark sets up a new stumbling-block. In the presence of the Pharisees, who sought to tempt him, Jesus is made to put aside as morally wrong and born of hardness of heart the harsh freedom of divorce secured to the man alone by the Mosaic code; while "in the house" he tells his disciples that "whosoever shall put away his wife, and marry another, committeth adultery against her," and "if a woman shall put away her husband, and be married to another, she committeth adultery;" so leaving us in doubt whether legal separation without the privilege of a further marriage is sanctioned—in effect thus anticipating the later distinction between divorce quoad thorum and quoad vinculum; or, if such separation be sanctioned, whether, in sharp contrast to the spirit of Jewish law, the wife is placed on a level with the husband in this regard.

The utterances of Paul on this subject,[33] as on all questions connected with marriage and the family, are of the highest importance in view of their historical consequences. Referring directly to the teaching of Jesus, he first seemingly denies the right of divorce to either party. With Mark and Luke he omits the exception mentioned by Matthew; and with Mark he expressly forbids the wife to "depart from her husband," adding, however, the inconsequent and bewildering command, "if she depart, let her remain unmarried, or be reconciled to her husband." Here apparently, where both persons are believers, separation a mensa et thoro is approved. Whether in such case this is the only Christian form of divorce allowed either party, however grave the cause of separation;[34] or whether his rule applies to the woman only, and then merely when some lesser ground of action exists, the Apostle to the Gentiles fails entirely to place beyond the field of debate.

Thus far Paul has spoken professedly on the authority of "the Lord." Next he contemplates the case of an existing union between a Christian and an unbeliever; and on his own judgment he admits a new ground of separation. "But to the rest speak I, not the Lord." The Christian may not put away or abandon his spouse on account of difference in religious faith. "For the unbelieving husband is sanctified by the wife, and the unbelieving wife is sanctified by the husband: else were your children unclean; but now are they holy. But if the unbelieving depart, let him depart. A brother or a sister is not under bondage in such cases."[35] Again, through this last remark, the seeds of dissension are planted; for it is not clear whether the "bondage" from which the brother or sister is freed is that of the existing marriage or the irksome necessity of perpetual single life after separation.

Upon these Bible passages, often vague and puzzling in the extreme,[36] was eventually erected the whole doctrine of the mediæval church relating to divorce. It is not surprising that harmony was reached only after many centuries of struggle. With the exact processes of argument by which ingenious theologians have in all ages sought to reconcile or interpret the scriptural teaching we are here but little concerned. At present we are mainly interested in the general results of thought as they find expression in the law and practice of the church previous to the Reformation. The subject presents four phases or aspects of development, each of which will be briefly considered: the views of the early Fathers; the legislation of the Christian emperors; the compromise with Germanic custom; and the final settlement of doctrine in the canon law.

b) Views of the early Fathers.—During the first four centuries of our era the so-called "strict" construction of the utterances of Jesus and Paul relating to the twofold question of separation and second marriage was formulated by the Fathers of the church; and the principles then agreed upon were in the end, after an intervening period of vacillation and compromise, to be accepted and elaborated into a complete system of law by the canonists. The literature of this early debate may be regarded as reaching from the Pastor of Hermas, a writer in the first half of the second century, highly respected in Christian antiquity,[37] to Augustine, late in the fourth century (died 430), who towers above all the other Fathers in his influence for good or evil in the history of European thought. At first the Pauline interdict of further marriage after separation receives more attention perhaps than the question of divorce itself, with its assigned cause as laid down by Jesus; for it is strongly urged that the chief evil of a too lax divorce system, such as the Roman, is the facility of second marriage regardless of the guilt or innocence of the parties.[38] Setting aside for the present the case of the Christian whose unbelieving spouse voluntarily departs—the casus apostoli or privilegium Paulinum, as it is later styled by the canonists[39]—nearly all are agreed that divorce is forbidden except for the one cause mentioned by Matthew. There is, however, a divergence of view in two important particulars. On the one hand, certain writers, such as Tertullian and pseudo-Ambrose, following the principle of the Jewish law, admit this ground of repudiation to the advantage of the man, but not to that of the woman; while others, like Epiphanius, maintain the equal right of the sexes in this regard. On the other hand, in a few instances the word "adultery"[40] is accepted in an allegorical or spiritual sense, thus greatly widening the field of divorce. In this way, for example, Hermas, Hieronymus, and, for a time, Augustine anticipate the mode of interpretation adopted by some of the Reformation Fathers, admitting idolatry, apostasy, and covetousness, equally with carnal transgression, as proper grounds of separation.[41]

The case is similar with respect to second marriage. Apparently there is a strong tendency from the beginning to treat marriage as indissoluble, but, "intentionally or unintentionally," the utterances of the Fathers on this vital question are unclear. Frequently they content themselves, as Geffcken observes, with a "paraphrase of the scriptural texts relating to the matter."[42] Seemingly, according to the common or prevailing opinion, neither party whether innocent or guilty is allowed to form a new marriage during the lifetime of the other; but there is on this point a great lack of precision.[43] Tertullian, after yielding to Montanism, even goes so far as to reject all second marriage as un-Christian; and the same position is taken by Minutius Felix.[44] There are, however, less rigid constructions. By some Fathers the right of remarriage is conceded to the man repudiating a guilty wife, while they deny it to the woman under like conditions. Others, actuated by a livelier sense of justice, like Epiphanius, concede it to both consorts alike; but these opinions are rejected by the majority.[45] More and more, in theory if not always in practice, the antagonism of the church to the second marriage of a divorced man or woman becomes apparent as we approach the close of the period under consideration. This is proved even by the action of the provincial assemblies. Thus the Spanish Council of Elvira of the year 306 decrees that the woman who puts away a guilty husband and marries another shall be excommunicated; and, save in case of mortal sickness, she shall not be admitted again to communion until after her first husband's death. If, however, she have left her husband without cause and contracted another marriage, she shall not be admitted to communion even on the death-bed; but nothing is said concerning a dissolution of the later marriage.[46] Similar in spirit are the canons of the Council of Arles held in the year 314. The general principle of the indissolubility of the matrimonial relation is positively asserted,[47] but in connection with a concession which illustrates the practical difficulty of consistently enforcing the new doctrine in all parts of the Roman world. The youthful husband[48] who puts away a guilty wife is to be "advised" not to marry again during her lifetime; thus dealing far more gently with the man than did the Council of Elvira with the woman for the same offense.[49]

Finally, with Augustine, the strict doctrine of the early church takes a definite form, to which the masters of later times look back as to an authoritative canon of interpretation. He gave to the theory of indissolubility, declares Esmein, a "basis solid, in a measure scientific. He gave it a consistency forced from the sacrament of marriage. He set aside at one stroke all the causes of divorce admitted by the secular law: sickness, captivity, or prolonged absence. He was, one may say, the artisan who gave the final touch to the theory of indissolubility."[50] According to Augustine, adultery is the only scriptural ground of separation; but even this does not dissolve the nuptial bond. Moreover, those who, following the letter of Matthew's text, would for this offense allow the man, but not the woman, the right of repudiation, he "justly reproaches with violating one of the great principles of Christian law—the equality of the wedded pair."[51] Similar views are held by Hieronymus, Ambrose, Jerome, Chrysostom, and other contemporaries of Augustine;[52] and it is probably due to his influence mainly that in 407 the strict theory of indissolubility was proclaimed by the Council of Carthage;[53] as already in 405 it had been accepted in a decree of Pope Innocent I. addressed to the bishop of Toulouse.[54]

In practical life the strict theory of the Fathers came very far short of realization. Hermas, who strongly favors the rigid view, allows the man to marry again whose wife sins a second time after once being reconciled.[55] Basil goes farther, declaring that the husband abandoned by his wife is worthy of pardon, and that the woman who then marries him is not condemned.[56] Even Jerome excuses Fabiola, a young Christian woman of high position who had repudiated a licentious husband and contracted a new marriage, saying, "if she is blamed because when her husband was divorced she did not remain unmarried, I will readily admit her fault, while I admit her necessity."[57] Origen shows that some rulers of the church in such a case permit a woman to marry again while the first husband is living;[58] and Augustine confesses that the women who abstain from remarriage after divorce are extremely few.[59]

c) The legislation of the Christian emperors.—Where the most severe teachers of the early church, and even the ecclesiastical councils themselves, as we have seen, were thus led to temporize, it is not surprising that an enlightened secular policy should be compelled to take intermediate ground. The legislation of the first Christian emperors goes far beyond the narrow limits which Tertullian, Clement, or Augustine would have drawn. For centuries, through every change in the statutes, the Roman principles of one-sided divorce and divorce by mutual consent were maintained, though it was precisely these principles against which primitive Christianity took its firmest stand. "It was a maxim of Roman law far down beyond the time when the emperors became Christian, that no obstacle ought to be put in the way of a dissolution of marriage caused by the free consent of the partners, liberty of marrying again being in this case equally unrestricted. The lawyer Paulus says, that it has been thought improper that marriages, whether already contracted or about to take place, should be secured by the force of penalty (poenae vinculo obstringi), that is that two parties ought not to be forced by fear of penalty either to enter into a state of wedlock to which they were pledged, or to keep up such a state if they were agreed to the contrary. And it was laid down that marriage was so free, according to ancient opinion, that even agreements between the parties not to separate from one another could have no validity (pacta ne liceret divertere non valere)."[60] One-sided divorce was equally free, except in the cases and under the conditions fixed by Augustus,[61] "saving that here, if the woman had caused the divorce by her conduct, a large share of her dower was withheld from her, and if the man had caused it, he might be liable to pay over the whole of the dower, and that within a short term. The parties were subjected until the time of Justinian to a judicium morum, which might be instituted on a complaint of either consort. The fear, then, of losing a portion or the whole of the dower, and the dread of a loss of reputation, when the conduct of the parties in their married life should be investigated, seem to have been the only inducements to prevent one-sided divorces. But what if no misconduct could be alleged on the part of the man, what if he dismissed his wife to marry a richer woman, the law in this case had no restraining power. And where the wife brought no dower, as might happen in the lower classes, there could be no operation of the law at all."[62]

Accordingly, the legislation of the early Christian emperors shows no radical departure from the principles of the existing civil law. Divorce ex consensu was not prohibited until Justinian, who decreed that only when both partners are about to enter the cloister shall a separation by mutual agreement be permitted.[63] But this prohibition was short-lived; for in consequence of it the number of suits growing out of "poisoning or other attempts upon life among married people increased in so frightful a manner"[64] that the provision was abrogated by Justin II., the immediate successor of Justinian.[65] On the other hand, the efforts of Constantine and later rulers are directed mainly toward checking the evils of one-sided divorce. This is done chiefly through restricting the number of legal grounds of separation and sharpening the penalties for their disregard. Thus in 331 Constantine ordains that trifling causes (exquisitae causae) shall no longer suffice for a repudium justum or legal divorce at the will of one party. The woman may put away her husband only when he is a murderer, poisoner, or violator of sepulchers; and the man is allowed to repudiate his wife only when she is guilty of poisoning, procuring, or adultery. If the divorce takes place for any other reason, the woman so violating the statute shall forfeit all claim to restitution of dower and suffer transportation to an island; while the man in like case must at once surrender the entire dos, being prohibited also from contracting another marriage.[66] "Still further, if he thus married, his repudiated wife 'could invade his house,' as the law expresses it, and acquire possession of the entire dower of her successor."[67] It should be noted, however, that the Roman principle of divorce bona gratia, or one-sided separation for a legal cause not implying any guilt or offense, was still retained.[68]

In 363 Julian repealed the divorce law of Constantine;[69] but the principle of restricting the grounds of arbitrary repudiation was again adopted in 421 by Honorius and Constantius; though, like Julian, they allowed arbitrary separation for lesser faults, with retention of some portion of the dower.[70] Theodosius II., in 439, abrogating previous legislation, restored the law of the early empire; but "after ten years of experiment, in which divorces had alarmingly increased, gave out another law,[71] which laid down the causes for which one party might lawfully separate from the other. The woman was authorized to do this if the man had been guilty of certain crimes, among which are murder, poisoning, plotting against the government, fraud, and various sorts of robbery, cruelty toward or attempts on the life of his wife, intimacy with prostitutes, and adultery. The causes for which a man could without penalty put away his wife were for the most part of the same description with those just mentioned. But peculiar to her are the offenses of passing the night out of his house, or visiting the theatre, circus, or other public place against his will."[72] If the divorce occurs for any reason other than those mentioned in the statute, the penalty for either person is loss or surrender of the dower and the ante-nuptial gift; while in addition the woman, under penalty of "infamy," is prohibited from marrying again within five years.[73] This is a severe discrimination against the wife; but in one important matter, it will be noted, the law of Theodosius is strikingly impartial; for separation is permitted on account of adultery of the man as well as for that of the woman. In this regard the measure is far more liberal than the earlier Roman law, according to which adultery is not a crime which a husband can commit against his wife.[74] Moreover, while this offense is not always mentioned in the constitutions of the Christian emperors as legal ground for divorcing the husband, it is punished with extreme rigor. Sometimes both offenders are condemned to death. Sometimes a discrimination is made, the woman usually suffering the harsher penalty.[75]

The legislation of Justinian, except in abolishing divorce by common consent, does not differ essentially in principle or detail from that of Theodosius II. The causes assigned for a reasonable divorce (ex rationabili causa) are much the same as in the former law. For disregard of the statute the woman loses her dower and is condemned to lifelong imprisonment in a cloister; while the man forfeits the nuptial gift (donatio propter nuptias), and besides must pay a fine equal to one-third of that donation.[76]

Thus it appears that during the two centuries between Constantine and Justinian the legislation of the state relative to the vital question of divorce is practically untouched by the influence of Christianity. Informal divorce bona gratia[77] and divorce by mutual consent, both contrary to Christian teaching, are freely allowed. The principle of further marriage after separation is fully maintained for the innocent party, and usually under restrictions for the guilty person as well. The causes of legal divorce are, indeed, limited and the penalties for unjust repudiation made more severe; but the strict principle of indissolubility of the marriage bond, as already conceived by Augustine and his contemporaries, is completely ignored.[78]

d) The compromise with German custom.—Far more important in its results is the contact of the Christian doctrine with Germanic customs and ideas. To the newly converted nations of Teutonic stock came the western empire as a proper heritage. It would be their task to make the history of the future; to construct a new civilization by blending the best elements of their own culture with the maturer results of Roman experience. But this could be accomplished only through ages of struggle and compromise; through a slow and painful process of amalgamation in religion, language, and jurisprudence. For the Germans were relatively young in social progress. In law and institutions at the time of conversion they stood about where the Romans were when Roman legendary history begins. With respect to the customs of marriage and divorce they stood even lower; for the earliest collections of folk-laws, some of which were made after the acceptance of Christianity, disclose marriage as a real contract of sale through which the wife in theory, and no doubt often in practice, becomes the husband's chattel. With regard to the primitive law of divorce there is scarcely any direct information. But it seems probable that originally the right of repudiation was the sole privilege of the man, though in practice the arbitrary use of his power must have been restrained by dread of the blood-feud and the fear of pecuniary sacrifice.[79] In the historical period, however, and long after the conversion divorce by mutual agreement seems to have prevailed very widely among the Germanic peoples; but with the exception of the Lex romana Burgundionum, it does not appear to be sanctioned in the folk-laws until the seventh[80] century, which fact has led to the conjecture that this form of separation, "originally alien to the German legal consciousness," was gradually adopted under Roman influence.[81] The folk-laws show that, side by side with divorce by free consent of the parties, the husband still possessed the right to put away his wife for certain specified crimes;[82] or, indeed, without assigning any cause whatever, though in that case he might suffer serious disadvantage with respect to property.[83]

Another principle of the ancient German law it is necessary to mention in order to obtain a starting-point for the measure of Christian influence. Originally, according to Wilda,[84] by the strict legal theory adultery is not a crime which a man can commit against his wife. He may be punished: indeed very generally in the folk-laws both the guilty persons may be slain when surprised by the aggrieved; but if he be punished "it is not for unfaithfulness to his wife, but for violating the rights of another husband."[85] On the other hand, for similar misconduct the woman is put to death. So "in Saxony, where the old heathen ideas survived until the forcible conversion under Charles the Great, as Boniface reports, the adulteress, stripped to the girdle, was driven out of her husband's house and whipped through the streets of the village until she died."[86]

To analyze the secular laws or ecclesiastical canons relating to divorce, as they were slowly developed on Germanic territory after the conversion, is not an easy task; for they reveal a striving to harmonize in various ways the often irreconcilable elements of Roman, Teutonic, and Christian ideas. In the first place, the imperial legislation remained in force for the Roman population, though in the compilations made under the barbarian kings various changes are made to satisfy new and complex relations.[87] Next, the German folk-laws show in many ways the evidences of compromise with Christian doctrine under the exigencies of practical life.[88] National sentiment will not suffer the absolute interdict of further marriage after separation; but the penalties for unjust action may be made so severe as to prepare the way for the strict theory of the church. In the Burgundian code, for example, the man who puts away his wife for any cause other than those named in the statute must surrender to her his house and all his possessions; whereas in the West Gothic Interpretation of the Theodosian code the chapter on which this provision is modeled prescribes a similar penalty, not for the illegal divorce itself, but for contracting a second marriage after the unjust repudiation of the first wife.[89] Accordingly, in these laws one-sided divorce on the part of the husband is not entirely taken away; but the grounds on which he may act are more or less restricted in harmony with the scriptural rules; and the wife is herself given a rudimentary right of one-sided repudiation when the husband is guilty of very grave crimes. In the law of the West Goths, for instance, where Christian influence is more marked than in any of the other codes before the close of the eighth century,[90] the right of the man to put away his wife is restricted to the one cause mentioned by Matthew; while for two scandalous wrongs the woman may repudiate the husband and contract another marriage if she likes.[91] On the other hand, the ancient rule that a man cannot be guilty of adultery against his wife yields very slightly to the Christian principle of equality of the sexes with respect to the punishment of carnal sins. Generally, according to the harsh sanction of the ancient law, the guilty woman as well as her paramour may be slain by the aggrieved.[92] In theory, as Geffcken insists, a husband in similar case is still merely responsible for violating the rights of another man; the only concessions to the Christian teaching being a tendency to check concubinage and the privilege of the woman, already mentioned, of repudiating her husband for certain offenses, among which, it may be noted, intimacy with other women is not found.[93]

Such are the salient features of secular legislation on German territory following the migration and settlement of the new nations. Let us now look at the question from the opposite point of view—that of the decrees and practice of the church itself. For more than three hundred years after the strict theory of Augustine had been proclaimed by the Council of Carthage and by Innocent I. in the beginning of the fifth century, there is more or less wavering on the part of ecclesiastical authorities. In general, it may be said there is a tendency to uphold the rigid doctrine of indissolubility; but the evidences of compromise with popular sentiment are by no means wanting. Almost always in the papal letters divorce with remarriage is absolutely forbidden.[94] Yet in 726 Gregory II., in a letter addressed to St. Boniface, permits a man to contract a new marriage because his wife by reason of infirmity is unable to perform her conjugal duty; and this opinion has proved a sore puzzle to canonists and theologians, for it is utterly inconsistent with an earlier decision of the same pontiff.[95] A similar inconsistency exists in the conciliar decrees. The doctrine of indissolubility is rigidly enforced by the Council of Angers in 453; the two Councils of Orleans in 533; the Council of Nantes in 658; that of Friuli in 796; and generally by those of the ninth century.[96] On the other hand, several decrees are much more tolerant. In 465 the Council of Vannes "expressly exempts from anathema those men who marry again after putting away their wives for adultery proved;"[97] and, still more liberal, the Council of Agde, 505, while expressly allowing more than one cause of separation a vinculo, threatens with excommunication only those who repudiate their wives for the sake of remarriage without "establishing in advance before the bishops of the province the causes of their divorce."[98]

At the time of the conversion the old English laws on this subject were probably much the same in character as those of their Teutonic kinsmen across the channel. From the code of Æthelberht it may perhaps be inferred that divorce is allowed at the will of either spouse. Apparently in all cases of arbitrary separation the responsible party suffers a severe penalty. The man loses all claim to repayment of the purchase price of the wife; while the woman or her guardian has to restore the same to the husband or his family.[99] The penitentials, as will presently be seen, afford abundant evidence that in practice the spirit of ancient custom yielded but stubbornly to ecclesiastical influence. But, so far as it could be done by legislation, the century following the conversion of Kent saw the strict doctrine of the Roman see established in the daughter-church of England. At the Council of Hertford in 673 it is decreed that divorce shall not be permitted except on the ground assigned by the "holy evangel;" but should a man "put away the wife united to him in lawful wedlock, if he wish to be rightly a Christian, let him not be joined to another, but remain as he is or else be reconciled to his wife."[100] After nearly two centuries, during which the records are silent on this subject, the same rule is laid down in the so-called Law of the Northumbrian Priests, by which anathema is invoked on one in holy orders who shall "forsake a woman and take another;" while the layman guilty of the same offense shall want "God's mercy, unless he make bot;" everyone being required to "lawfully keep his wife, as long as she lives, unless ... they both choose, with the bishop's consent, to separate, and will thenceforth observe chastity."[101] From this time onward, as clearly shown by the canons of Dunstan,[102] those issued under Æthelred at the Council of Eanham (ca. 1009),[103] and later decrees, the theory of indissolubility was unswervingly accepted by the English church under sanction of the temporal power.[104]

Already in the Carolingian empire, through co-operation of the secular authority, the teachings of Augustine had gained a similar triumph. The ecclesiastical capitularies of the Frankish kings, from the ascendency of the house of Charles Martel to the consolidation of the state under Charles the Great, are of especial interest in this connection, for they prepare the way for the synthetic work of the canonists. During the dark period of the Merovingian line any attempt through legislation to deal seriously with divorce or any similar social or moral problem could scarcely arise; for it would have meant some restriction of the prevailing licentiousness, to which all classes were committed. Civil rulers were steeped in debauchery. The church was apathetic and corrupt. "With the advent of the Carolingian major domus, the level of morality begins to rise."[105] Already in 744, at the Synod of Soissons, a royal capitulary clearly forbids divorce to each spouse, except that a husband may put away a guilty wife on the scriptural ground; but in that case whether the innocent person may contract a new marriage we are not informed.[106] This attempt to enforce the rigid doctrine of the ancient church seems to have been premature; for a few years later, at the synods of Verberie (753) and Compiègne (757), rules much more tolerant are proclaimed.[107] These capitularies possess more than usual historical interest in view of their "profound and durable influence" on the final settlement of the law by Gratian and his successors.[108] Several grounds of divorce with remarriage are admitted. According to the decree of Verberie, the man whose wife plots against his life may put her away and take another spouse; but the divorced woman may not remarry. So also, by the same decree, the man may form a new marriage, if his wife through love of her parents or some selfish interest refuses to accompany him when he flees from danger or is constrained to follow his lord into another duchy or province. In this case, the woman must remain unmarried while her husband lives.[109] Again, the Synod of Verberie provides that if either person in course of the wedded life shall fall into slavery, the one remaining free is at liberty to marry again when he likes. "A single exception is admitted which throws a sombre light on the society of that epoch: if a spouse under pressure of misery has sold himself as a slave, the partner remaining free, who has shared the bread thus gained and whom the sale has saved from hunger, is not entitled to a divorce."[110]

Even more striking is the decree of Compiègne regarding the effect of religious vows. When by agreement either partner enters the cloister, the spouse remaining in the world has the right of remarriage. To this decision, so sharply in contrast with the mature doctrine of the canon law, it is significant that a papal delegate to the synod, Bishop George of Ostia, gave his consent. The severer and more orthodox principle had been followed by the Synod of Verberie, which prohibits the man from remarriage when he suffers his wife to take the veil.[111] Both decrees permit separation on various other grounds, such as error of condition and certain degrees of affinity, which, under the dangerous guise of nullity, "constitute veritable exceptions to the rule" that the nuptial tie cannot be dissolved.[112]

Finally there is a singular omission which has called forth an instructive comment from a modern scholar. "It is remarkable that neither of these decrees mentions adultery as a cause of divorce. This is so without doubt because the capitulary of Soissons already gave that quality to the sin of the woman who alone was considered. Besides, in that rude society, this cause of divorce in most cases was probably superfluous. The deceived husband had no need to invoke it. Not merely when he surprised his wife flagrante delicto, but also when he had grave suspicion against her, did he take justice into his own hands, killing the guilty woman; and the deed probably went unpunished. In this regard the church appears to have shown ample indulgence. No doubt she entirely forbade a new marriage to the spouse who slew a partner; but that was never more than a prohibitive impediment for which dispensation was granted with sufficient ease. Here a means was admitted by law and custom for evading the rule of indissolubility of the conjugal bond. St. Augustine had already contemplated it; and various passages of Hincmar of Rheims show clearly that more than one husband had recourse to it in his time."[113]

It is strange that so wide a relaxation of the principle accepted by the early church, in part under the sanction of Rome itself, should have preceded by so few years its complete triumph in the capitularies of Charles the Great. From 774 onward, with slight wavering, the rigid doctrine is maintained both by imperial and papal authority; as likewise it is expounded in the canonical literature of Gratian's predecessors, notably by Benedict Levita and Hincmar of Rheims.[114]

But there is other testimony of a most convincing nature that the practice of the church could not keep pace with her theory. It is afforded by the penitentials. These are private manuals designed for the practical guidance of priests in their daily ministrations, one of the oldest and most interesting of which is that bearing the name of Theodore of Tarsus,[115] the reorganizer of the English church and president of the Council of Hertford, where the orthodox rule relating to divorce was proclaimed. On this penitential and the somewhat older one of the Irish Columban the earlier Frankish penitentials are modeled, sometimes with literal exactness. Divorce with remarriage is allowed to one or both persons on various grounds. In case of adultery a discrimination is made in favor of the husband. He is given the right of repudiating the guilty woman; and, in case it be a dissolution of the first marriage, he may take a new spouse without delay. Even the divorced woman may remarry after a penance of five years. For the like sin, however, the wife is forbidden to send the husband away, except to enter a monastery.[116]

Again, for malicious desertion on the part of the wife, the man may contract a new marriage after five years, if the bishop gives his consent;[117] and a woman whose husband loses his liberty for crime committed has the right to wed another man after a single year, if it be the first marriage which is thus dissolved.[118] Remarriage is allowed either spouse when the other is made captive in war;[119] and in case of conversion each spouse has the right of one-sided divorce, if the other remains in paganism.[120] Several other grounds of repudiation are recognized, as, for instance, when anyone has ignorantly married a person of servile condition;[121] or when a husband or wife is raised in rank and the consort remains in servitude.[122] But perhaps the most striking proof that in practice the church was obliged to compromise with popular sentiment is the repeated recognition of divorce by mutual consent.[123]

Such laxity seems to have marked the practice of the Frankish, and probably also that of the Anglo-Saxon, church during a period of a hundred and fifty years (650-800). With the beginning of the ninth century, however, a turning-point is reached. More stringent rules are prescribed by the councils; and new penitentials are prepared under ecclesiastical authority much more in harmony with the teachings of Rome. But even now, seemingly, the clergy shrank from the attempt fully to carry out the reactionary discipline. As a result a third class of manuals for a time appeared, occupying medial ground, and better fitted to satisfy the needs of populations not yet entirely able to give up the liberty which their ancient laws secured.[124]

e) Final settlement of the Christian doctrine in the canon law.—From the age of Charles the Great the ultimate triumph of the strict ecclesiastical theory of divorce was entirely assured. But there yet remained a twofold task which it would still require centuries to accomplish. On the one hand, the discordant utterances of the Fathers, the popes, and the councils had to be harmonized or explained away; while, at the same time, the results thus gained had to be exactly formulated and wrought into the intricate system of matrimonial jurisprudence. This was the work reserved for the canonists, and especially for the two great "masters," Gratian and Peter Lombard. On the other hand, the practice of the church must be made more thoroughly to coincide with her theory. A means must be found by which the people could be constrained, so far indeed as that was ever to be realized, to accept the canon law as a guide in the affairs of actual life. This end the church was destined to win by gaining exclusive control of divorce procedure as a part of her general competence in matrimonial causes.

Under the Roman law, as also by that of the Jews, divorce was a private transaction. The intention of the person repudiating his spouse was declared orally[125] before seven witnesses. The state might, indeed, punish the crimes causing the separation or enforce the penalties for unjust action, thus incidentally passing on the legality of the divorce itself; but if the proper forms were observed, the private divorce, whether one-sided or by mutual consent, was valid, and the state gave no action either for enforcing the separation or for the restitution of conjugal life.[126]

The same principle obtains among the German nations after the conversion. Divorce is a private act, and there is no proper divorce process in the temporal courts. Separation by free consent is usually effected merely through exchange of duplicate copies of a written agreement, or libellus repudii;[127] and if sometimes the intention of the parties must be declared before judicial authority, it does not follow that there is any examination of the grounds of action or any judgment admitting or refusing the separation. The "function of the court can have only the purpose of establishing the formal correctness of the act of self-divorce."[128] In the case of one-sided divorce the same general rule prevails. There may be judicial action; but it is an action to punish the crime of the guilty person or to enforce the penalty for unjust repudiation. "The form of one-sided divorce in the Teutonic folk-laws rests upon the same fundamental principles as that of the leges Romanae. Self-divorce is in equal degree true Roman and true German. In each case justifiable separation may be preceded by a penal action to determine the guilt of the accused. In each case, moreover, it is not the divorce which the sentence directly decrees, but its justification. It still rests with the aggrieved spouse whether he will make use of his right of separation, or whether he will allow a reconciliation to take place."[129]

The church was ambitious to take the matter of divorce procedure entirely into her own hands; to establish a real jurisdiction which would enable her effectually to forbid separation except on the grounds which she herself approved, and to compel the restitution of married life when separation occurred for any other cause.[130] It was long before this ambition was realized. The council of Agde as early as the year 505 did indeed declare, in effect, that, besides the penal sentence of the temporal court, a recognition of the grounds of divorce by the ecclesiastical authority shall be required for a separation; and whoever puts away his wife without first satisfying these conditions shall be excommunicated.[131] To this decree, so emphatic in its demands, the origin of spiritual jurisdiction in divorce questions is commonly traced;[132] but this seems far from being the truth. The decree must rather be accepted as an early but "isolated" expression of an ideal toward which the church for ages was striving; and as such it became of more and more importance as the great doctors of the canon law found themselves in a position to give it meaning.[133]

Even during the Carolingian era theoretically the state still maintained the old position. The judgment in a penal action neither nullified nor enforced self-divorce. In reality, however, the power of the church in this field was vastly increased at the expense of the state.[134] For the state then undertook as never before to enforce the discipline through which hitherto the church had striven in vain to realize her doctrine.[135] Backed by the state, the church thereafter had the power to compel a restitution of conjugal life when a divorce was attempted against her will—a power which the secular judge had never possessed. Accordingly, "the temporal divorce jurisdiction of the Frankish empire, so far indeed as one is justified in speaking of such a jurisdiction, was not abolished by a legislative act; but it gradually perished through the contradiction to its own laws in which the state of the Carolings involved itself when it made the unqualified support of the disciplinary jurisdiction of the church one of its cardinal principles of government."[136] Already by the beginning of the tenth century this process was practically complete.[137] In German lands the diocesan court of the bishop had become the ordinary tribunal for divorce causes; and for annulment of the uncanonical separation an exact formula, the oath of reconciliation, had been devised.[138]

A powerful instrument was thus provided for the development and enforcement of a complete system of divorce jurisprudence. Little by little the canonists, in tedious succession from Hincmar of Rheims to the decretalist Tancred,[139] brought order out of confusion and agreement out of contradiction. Through special pleading and violent assumption, unscrupulous twisting and suppressing of texts, earnest argument and childish allegory, the law of divorce was gradually brought into some degree of harmony with the sacramental theory of marriage.[140] The middle of the tenth century saw the task virtually accomplished at the hands of Gratian and Peter Lombard,[141] the master-builders of the canon law;[142] although their teachings are still "on the surface obscured by reminiscences" of earlier theories, and after them the Decretals show certain aberrations from the strict doctrine, like "sporadic cases after a great epidemic."[143]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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.

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]

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]

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]

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]

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]