[150] Decret. Grat., II, caus. xviii, qu. 2, C. 2; and Decretals IV, 19, de divortiis, c. 7: see Richter-Friedberg, Corpus juris can., I.
[151] This is Freisen's argument, op. cit., 825-27, 817 ff. See also Scheurl, Das gem. deut. Eherecht, 276-78. The canon law maintains the validity of a marriage between two infidels contracted before conversion. According to Peter Lombard, the believer may, indeed, put away his unconverted consort, but may not remarry. Only when the infidel is the active party, the Christian being the passive, is the latter released from the marriage bond: Sententiae, IV., D. 39, § G; Freisen, op. cit., 814. This privilege is much discussed in modern theological literature: see the references in Freisen, op. cit., 826 n. 27. In general compare Woolsey, Divorce, 74 ff., 125; Esmein, op. cit., I, 220-32; II, 268 ff., 307; Scheurl, op. cit., 276, 277.
[152] Pollock and Maitland, Hist, of Eng. Law, II, 391, 392: citing for the first case Tovey, Anglia Judaica, 84; Co. Lit., 31b, 32a; and for the second, Calend. Geneal., II, 563.
[153] So in India: Pollock and Maitland, op. cit., II, 391 n. 2: citing Maine's speech on the "Remarriage of Native Converts," in Memoir and Speeches and Minutes (London, 1892), 130. Cf. especially Esmein, op. cit., II, 268 ff., who discusses some of the "curious problems" growing out of this rule.
[154] For the evils arising in clandestine marriage de praesenti, the complexity of the law of forbidden degrees, and the conflicting jurisdiction of the temporal and spiritual courts, see chap. viii above.
[155] Freisen, op. cit., 826 ff., 212 ff., shows that the dispensatio summi pontificis a matrimonio rato nondum consummato originated with the reforms of Alexander III.; and argues rightly that these two kinds of dissolution—dispensation and orders—are in harmony with the rule of indissolubility according to the doctrine of Gratian, but not according to the existing theory. Thus, of the old eight causes which were sufficient of themselves to dissolve matrimonium initiatum—identical with the later sponsalia de praesenti—holy orders alone remains; the papal dispensation has taken the place of the other seven: ibid., 827, 829; cf. on these exceptions Scheurl, Das gem. deut. Eherecht, 278-86.
[156] See chaps. vii and viii, above.
[157] Jeaffreson, Brides and Bridals, II, 299 ff., conjectures that during the Middle Ages there must have been many irregular self-divorces; and he cites the famous case of William Paynel and Margaret his wife who, in 1302, "petitioned the king for the dower that was due to her as widow of her first husband John de Camoys," who with her consent had "openly and before witnesses 'given, granted, released, and quit-claimed' the said Margaret to 'her chivalric knight,'" the said William. The court refused the dower on the ground of desertion and adultery. Cf. on this case Pollock and Maitland, Hist. of Eng. Law, II, 393, 394.
[158] Jeaffreson, op. cit., II, 306-9.
[159] Pollock and Maitland, op. cit., II, 391 n. 1. Read the interesting remarks of Lecky, Democracy and Liberty, II, 193-96, who cites, as illustrative of the policy of the Roman church, the divorce case of Napoleon and Josephine. See also Law Review (English), I, 353-56.