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.