ESSAY ON DIVORCE
AND
DIVORCE LEGISLATION,
WITH SPECIAL REFERENCE TO THE UNITED STATES.
BY
THEODORE D. WOOLSEY, D.D., LL.D.,
PRESIDENT OF YALE COLLEGE.
JFEW YORK:
CHARLES SORIBNER AND COMPANY.
1869.




Entered according to Act of Congress, in the year 1869,
By CHARLES SCRIBNER & Co.,
In the Clerk's Office of the District Court of the United States for
the Southern District of New York.




APPENDIX.
PAGE
NOTE 1, to Chapter 2. On Certain Passages in the First
Epistle to Timothy and in Titus,........ 281
NOTE 2, to Chapter 3. On the twenty-second novell of
Justinian,.............283
NOTE 3, to Chapter 3. Some Notices of Divorce Laws in
the Middle Ages............   286
NOTE 4, to Chapter 4. Foljambe's Case,......289
NOTE 5, to Chapter 5. Extract from an article in the
New Englander for July, 1866, by Rev. H. Loomis, of
Manchester, Conn.,.............        292
NOTE 6, to Chapter 6. Influence of Law on Divorce, and
connection of Divorce with National character... 295




TABLE OF CONTENTS.
CHAPTER I.
PAGE
DIVORCE AMiONG THE HEBREWS, GREEIS, AND ROMANS,..  9
CHAPTER II.
DOCTRINE OF DIVORCE IN THE NEW TESTAMENT,....    50
CHAPTER III.
LAW OF DIVORCE IN THE ROMAN EMPIRE, AND IN THE
CHRISTIAN CHURCH,............ 86
CHAPTER IV.
DIVORCE AND DIVORCE LAW IN EUROPE SINCE THE REFORMATION,............... 126
CHAPTER V.
DIVORCE AND DIVORCE LAW IN THE UNITED STATES,.. 179
CHAPTER VI.
ATTITUDE OF THE CHURCH TOWARD DIVORCE LAW, PRINCIPLES OF DIVORCE LEGISLATION,....... 234




PIREFACE.
THE following Essay is a reprint of articles
which appeared in the Newo Englander for
1867 and 1868, with a number of changes and
additions, among which latter the notes at
the end of the volume are the most considerable. The work was undertaken, not from any
special interest in the subject, but from a sense
of its importance; and the author had been
urged for a number of years to write upon it,
before he found time to give it any thing like
due attention. The call which came to him was
dictated by a feeling, in which multitudes share,
that the Divorce Laws of the State where he resides' are extremely lax, and that a commonwealth, whose morals and history in the past
have been highly to its honor, is in danger of
becoming a teacher and propagator of low
views of the marriage relation, as far as its ex



PREFACE.
ample can reach. The call came to him because he had studied the subject in connection
with lectures on Natural Right and the State,
delivered in Yale College, and was supposed
to have some familiarity with the exegesis of
the New Testament. I-ow he has done his
work the reader must judge.
As for the treatment of the subject the author wishes to say:-1. That the multitude of
details, especially in the fourth and fifth chapters, is so great that he cannot expect to have
avoided mistakes, and as all the books that
were consulted were not at hand for re-examination, the errors could not be conveniently
detected. 2. In the last chapter it might seem
as if he was inconsistent with his own principles in allowing cases of divorce which are
condemned by the greater part of Christian
people; but in truth the remarks that are
there made are dictated by the conviction that
a strict law would not stand any chance of
being passed in a number of the United States.
If however a law as good as, with one exception, that of England is could be accepted in
this country, no one would rejoice more than
the author,




PREFACE.
Several gentlemen have rendered valuable
assistance to the author in regard, especially,
to the state of Divorce Legislation in the United
States. He mentions here with gratitude the
help given by Henry Clark, Esq., of Rutland,
Vermont; Rev..     W.. Andrews and C. J.
Hoadley, Esq., State Librarian, of Hartford,
Conn.; Edward D. Mansfield, Esq., lately
Commissioner of Statistics in Ohio; H. W.
Chase, Esq., of Lafayette, Ind.; S. B. Perry,
Esq., of Chicago, Ill., and Henry Hitchcock,
Esq., of St. Louis.
NEW HAVEN, March 31, 1869.








ESSAY ON DIVORCE.
CHAPTER I.
DIVORCE AMONG THE HEBREWS, GREEKS, AND
ROMANS.
IN the present chapter we shall attempt to give
an account of the law and practice of divorce
among the Hebrews, Greeks, and Romans, those
three nations, to one or another of which we owe
our religion and most of the leading elements of
our civilization.  The subject has an important
practical bearing. It is intended as an introduction to an inquiry into the meaning of those passages in the New Testament where the matter
of divorce is taken up. Christ, by a few words on
this subject, has turned legislation and usage into
a new channel; he has in those few words, by a
higher conception of marriage than was entertained
before, thrown in a very important element into
Christian civilization. It is our object to answer
the question why Christ acted thus in some sense
as a legislator, and what the world's need was
that it should be taught a higher morality in
this respect. Having looked at this point as briefly
1*




10       DIVORCE AMONG THE HEBREWS,
as truth and the importance of the subject will
permit, we propose, in the next chapter, to
discuss the passages of the New Testament touching on divorce and the questions to which they
naturally give rise. Then, if it is permitted to us
to continue our inquiries, we shall treat of the
practice and views of the early Christians, and
o' the state of opinion and law in some of the
principal Catholic and Protestant countries. Finally, we shall ask what ought to be the aim of legislation among us, and how the Christian Church
ought to act in endeavoring to enforce the commands of Christ within its own pale. Our aim is
to do good and to serve the truth. We are not
indeed so conceited as to hope to produce a great
effect of ourselves, but believing that an irreligious liberty is creeping even into the Church
with regard to the marriage tie, believing also that
nothing more helps on, and is helped on by, general laxity of morals than undue freedom in regard
to divorce, we feel constrained to contribute our
mite to the correction of a public opinion and
practice which are threatening serious evils both
to Church and to State.
DIVORCE AMONG THE HEBREWS.
The ideal of marriage, as we find it in the first
records of the Hebrews, is a peculiarly beautiful
one. " For this cause shall a man leave his father
and his mother and cleave to his wife, and they




GREEKS, AND ROMANS.           11
twain shall be one flesh."  Here the union of one
man with only one woman is thought of, and polygamy in fact is inconceivable, for how can so
close a union as the being one flesh with a wife
admit of the same union with another. It is again
an indissoluble union; for if the parties are one flesh,
nothing but a violent process of nature or of crime,
something like amputation, can separate them.
And what is deserving of equal notice is the separation of the man from his father and mother contemplated in this text. A patriarchal age would
naturally regard the filial and parental as the
closest of all ties. Here is a still closer tie, involving a greater " cleaving " to the wife, a formation
of a new family with new rights and interests, an
emancipation from parental control.
The ideal presented in these words remained in
the Hebrew mind until Christ came into the world.
Polygamy and freedom of divorce obscured, but
could not obliterate it.  Polygamy was permitted or rather endured, under some restrictions, but
one wife was the rule, as is shown by various passages of Scripture. In the Psalms, and in the
Prophets, only one wife is spoken of; the prophets
are nowhere mentioned as having more than one;
the same is true of Mloses and of Isaac; even
Abraham looks forward to the necessity of having
a servant for an heir, until at the instigation of
Sarah lie takes Hagar as a kind of substitute for
her; wealthy men, like Nabal and the Shurnaini



12      DIVORCE AMONG TIE HEBREWS,
tish woman's husband, are monogamists; and perhaps the law laid down a similar rule for the high
priest."  Probably a great part of the private persons among the Jews had but one wife, and polygamy was chiefly confined to the king and a few
others. Even the kings were forbidden to multiply wives greatly, and Jehoiada, the high priest,
must have intended to restrict King Joash, when
he furnished him with only two. Still polygamy
existed legally, and was not put down by the
moral sense of the nation. It took, we may add,
through the prevalence of slavery, the form of a
looser connection with a woman of inferior condition, a form between concubinage and marriage.
The woman in Judges, chapters xix., xx., is constantly called a pillegesh or concubine, and yet
the Levite is spoken of as her husband, and her
father as his father-in-law. She was a Hebrew
free woman apparently, but that relation, for the
most part, was entered into with a domestic or a
slave.
Marriage began with the betrothal, but no covenant or formality is known to have existed. The
condition of marriage, however, is spoken of as a
covenant. Thus Malachi says: "Yet is she thy
companion and the wife of thy covenant;" and
Ezekiel:' I sware unto thee, and entered into a
covenant with thee, and thou becamest mine.'
* This opinion, thrown out by Saalschuitz (Mos. Recht., p. 748,
ed. 2), will not bear nmuch weight.




GREEKS, AND ROMANS.          13
In numberless instances the word zanah, to play
the whore, is transferred to signify a breach of the
covenant-relation between God and the people by
the crime of idolatry. Closeness of union and tender care, conditioned by fidelity, belong to both relations, that between husband and wife, and that
between God and the people. Did the notion of
a covenant belong to both independently, or was
it transferred from the theocracy to family life?
We are unable to give a satisfactory answer, but
apparently it originated in the theocratic union
and passed to the conjugal. H-owever this may
be, there is a sanctity thrown around marriage by
this manner of speech and thought, such as few
other expressions could give forth. If adultery is
on a level with apostasy from God, how great
must be its guilt; and if the man is to the woman
as God to the people, what but a breach of that
covenant in one vital respect should dissolve the
union. To which we may add that as God had
but one people, the standing simile would be apposite only if, as a general thing, one man had but
one wife; and that the relentless severity of the
Jewish law toward the adulteress corresponds to
the penalties it denounces against going away
from Jehovah to the worship of a false god.
In Hebrew marriage, gifts were given or a price
was paid by the bridegroom, and this corresponds
to the purchase of the wife, which was practiced
over a large part of the world in ancient times, as




14       DIVORCE AMONG THE HEBREWS,
in Greece, among the Hindoos, and among the
Germans, and of which many instances are still to
be met with in barbarous or half-civilized tribes.
In the first case where these presents are spoken
of, the largest share went to the bride, Rebekah,
her mother and brother also receiving " precious
thlings."  In the case of Jacob, as he had nothing
to pay, service was rendered as an equivalent.
The other references to this usage are few; fewer,
we conceive, than they would have been, if it had
played the same important part which belonged
to it in the marriage usages of other nations. A
distinguished writer on Jewish antiquities tries to
show that the custom among the Jews amounted
to nothing more than the giving of presents for a
favor received, which presents went in good
measure to the bride; but the prevailing opinion
is against him, and the analogy of other nations is
able to show a softening down of an original
purchase from the father into a portion conferred
upon the bride herself.*
Hebrew marriage, thus far, appears quite informal and primitive, but yet penetrated with a religious spirit, and placed, as it were, under the
especial protection of the covenant-keeping God.
Nevertheless as the bad usages of polygamy,
slavery, and blood revenge were endured among
the people, so when it received the law, a freedom
of divorce prevailed which could not be corrected
* We refer to SaalschUitz (u. s.), chapter 102, ~ 3.




GREEKS, AND ROMANS.           15
without hazarding the overthrow of the polity.
It was therefore endured, and in some degree restricted.
The leading passage relating to divorce is found
in Deut. xxiv. 1-4.  It assumes a certain loose
practice in regard to divorce, and tries to reduce
it to a formal shape, precisely as the Empertr
Augustus attempted to give legal form to divorce
among the Romans by his legislation. Let us
notice the parts of the passage in their order.
1. It is supposed, as the basis of the law now
given out, that husbands who had found "some
uncleanness " in their wives had been in the habit
of putting them  away without ceremony, or of
sending them home as they would hired servants.
Here two things deserve consideration. First,
the right of divorce among the Hebrews was altogether one-sided. The wife had no right of divorce
whatever. If her husband committed adultery
with a married woman he might be put to death;
but it does not appear what protection she had
against ill-usage on his part. Probably her vindication in this case was left to her friends. In the
second place, what do the words "some uncleanness" denote? This passage, as is well known,
was the subject of controversy between the schools
of Shammai and Hillel: the latter understanding
it of any thing offensive or displeasing on the part
of the wife; the former giving it an ethical sense,
according to most modern writers, as if it were to




16       DIVORCE AMONG THE HEBREWS,
be confined to an act of immorality like adultery.
Winer, however, says that the Genara makes the
view of Shamrai less strict: even public violations of decorum might furnish ground for divorce
according to his doctrine. Josephus interprets the
law according to the'views of Hillel: " le who
wishes to be separated from his wife," says he
(Antiq., iv., 8, 23), " for any reason whatever [St.
Matthew's'for every cause']-and many such are
occurring among men-must affirm in writing his
intention of no longer cohabiting with her." This
is the extreme of license which an immoral age
would defend by the passage. On the other hand,
the opinion attributed by most modern writers to
Shammai is wholly untenable, as moral uncleanness or adultery was punishable by death. Knobel,
in his commentary on Deuteronomy, expresses
himself as follows:'.Ervct  cct)catr is used of human excrement in Deut. xxiii. 13, and is properly
a shame or disgrace (Is. xx. 4) frovm a thing; that
is, any thing which awakens the feeling of shame
and repulsion, inspires aversion and disgust, and
nauseates in contact, for instance, bad breath, a
secret running sore, etc."  Then he adds, "in the
time of Christ the expression was in controversy.
The school of Shammai took it as being the same
with debar ervath [a thing of-uncleanness or disgust], and understood it of unchaste demeanor,
and shameless lewd behavior. Tlhe school of
Hillel, which the Rabbins follow, explained it as




GREEKS, AND ROMANS.           17
something isguhsting or aczy other cause, and thus
defended a looser view... Both were
wrong in this, that they built up a general principle upon the words, whilst the author only speaks
of the commonest cause of divorce at his time."
2. It is required of the husband, by this statute,
that he write a bill of divorcement, and give it into
the hand of his wife, before sending her away
from his house. The law requires no special form
for this " writing of separation," and whether any
form in particular was customary we have no
means of knowing. The essential points which the
law aims to secure are first a formal writing, by
which any passionate haste would be prevented;
and secondly, protection for the woman, so that it
should appear to all persons that she was not an
adulteress, nor a runaway from her husband's
house, but was free to contract a second marriage.
If the reasons for the divorce were added in the
bill this would be an additional protection to the
wife, as the husband would be slow to put down
in a permanent form pretexts which might be false
or frivolous.*  It has been suggested also that at
an age when writing must have been infrequent,
the inability to prepare a written document would
secure a greater degree of deliberation, as the husband would need the help of some Levite or other
educated person, of whom he would stand in a
* In the forms given by Selden, Uxor. Hebr., iii., 24, no mention is made of any reasons.




18       DIVORCE AMONG THE HEBREWS,
certain awe, if conscious of the frivolity of the
reasons for a divorce.
How far this statute went into general use, we
have no means of knowing. Two passages, one in
Isaiah (1. 1), and one in Jeremiah (iii. 8), refer to
the bill of divorcement to illustrate God's treatment of his rebellious wife, the people, and as the
illustration must have been well understood, it is
fair to suppose that such bills were then in common use. The passage in Jeremiah however suggests a difficulty.  God put backsliding Israel
away and gave her a bill of divorce on account of
her adultery. May we argue from this that the
penalty of death for this crime was now softened
down, on account of the great corruption of manners, into repudiation.  The passage in Ezekiel
(xxiii. 45, 46), where judgments by righteous men
in cases of adultery are spoken of, proves the contrary. Jeremiah adapts his simile to the facts of
the case. The adultery of Israel was the abandonment of Jehovah for the idols of the heathen, and
his repudiation of her was the captivity of the
northern tribes. The very verse of the prophet
where these words occur shows us the freedom of
his illustrations. The treacherous sister of Israel,
Judah, feared not when she saw the casting out of
her sister, but went and played the harlot also.
Here then we have two sisters contemporaneously
the wives of one husband, a thing directly against
the law of Moses.




GREEKS, AND ROMANS,           19
3. The divorced wife may now contract marriage with another man, but if separated from him
by death or divorce may not return to her first
husband. As Jeremiah says the land where this
should occur would be "greatly polluted."  Here
protection for the woman and for public morals
are secured at once.
As for the woman, the great freedom of divorce
which law and usage gave to the man made it all
the more important that her interests should be
protected.  She was always the passive party,
having no right of divorce on her side. If such
freedom on the part of the man was right, it was
right also that she should be permitted to marry
again. If it was in itself an evil, endured but not
encouraged, it was in a certain sense right that another similar evil should counterbalance it and
deprive it of some of its baneful effects. Marriage
ought to be equally sacred for both parties, and
under equal sanctions for both.  When there is a
letting down of those strict rules which our Lord
has made known for his Church, bad law cannot
end, with any equity, in granting the husband
certain liberties, unless it grants a compensation to the wife. This compensation was remarriage after divorce. The need of such protection
was increased by the institution of polygamy, for
it would often happen that the husband, when he
took to himself a second wife, would become disgusted with the old one, and her feelings, when




20       DIVORCE AMONG THE HEBREWS,
she felt herself to be put in the background, would
not contribute to domestic peace. Or he might
find himself unable to support two, and thus disgust would ere long end the connection with one
of them or the other.
As for the protection of public morals, it is evident that the power of return to the same husband
might wholly destroy the sanctity of marriage and
bring it down almost to the level of polyancdry
on which a few of the most degraded nations of
the world now stand. Marriage between one man
and one woman must be once for all. That is to
say there is nothing in the mere act of divorce,
according to this Hebrew law, to prevent reunion
of the parties, and very likely such things occurred, but a practical dissolution by marriage to another man forever prevented a union with a former husband, as something polluting and almost
adulterous.  So enormous a transaction as that
between Cato the younger and Hortensius, when
the former lent his wife Marcia to the latter and
took her back again after the orator's death, would
have been altogether contrary to Hebrew law,
and probably an abomination to Hebrew feeling
in the worst times.*
It is only seldom that the law of Moses makes
mention of divorce. The two other passages where
* It does not appear that Cato ever divorced his wife, which
only makes the transaction more enormous. For a critique of
this affair, see Drumann Gesch. Roms., iii., ].07.




GREEKIS, AND ROIMANS.         21
it is spoken of, show an intention of a humane legislator to protect a woman in circumstances where
she was peculiarly exposed to injury. One of
these is Deut. xxii. 28, 29. The substance of it is,
that a man who deflowers an unbetrothed virgin,
besides paying a fine to her father, shall take her
for his wife without the power to " put her away
all his days."  The other (vv. 13-19 of the same
chapter) contemplates a newly married man's
spreading an evil report concerning his wife's antenuptial chastity. If on solemn investigation it
was found that his words were false, he was to be
chastised, to pay a heavy fine to his father-in-law,
and, as in the former instance, to have his liberty
of repudiating her taken away. In these cases the
interests of morality and those of his wife are both
looked after. Yet it may be asked whether such
a law, implying a grievous breach between the
married pair, would not expose the wife to intolerable cruelties from one who could never get
rid of the detested object. We can only answer
that the law allowed no such cruelty, that her
family friends could act as her defenders, and that
on his death she could not, it is probable, be
stripped of the use of some portion of his property.
We have no means of judging whether the sentiment of the Hebrews changed in the course of
time on the propriety of divorce. There is, however,
one memorable although very obscure passage in
the last of the prophets (Malachi ii. 11, 16), which




22       DIVORCE AMONG THE HEBREWS,
goes to show that indiscriminate divorce was then
regarded by good men as wrong and offensive to
God. The prophet, after rebuking intermarriage
with heathen women, and threatening the divine
vengeance against those who should commit this
sin, passes on to a second sin, that of " covering the
altar of the Lord with tears, with weeping, and
with crying.out,' which, as appears from the next
verse, where the sense is more fully brought out, is
to be understood of the complaints of injured and
divorced wives-divorced perhaps for the sake of
the heathen women just before spoken of-uttered
in the temple to the Lord of H-osts. God no longer regards the offerings of such men, because
they have dealt treacherously or unfaithfully each
one against the wife of his youth, who is his companion and the wife of his covenant. The next words
are among the obscurest in the Bible, and if we
could make them plain, they would require too
long a comment for this place. Then the prophet
adds: " therefore take heed to your spirit and let
none deal faithlessly against the wife of his youth.
For the God of Israel saith that he hateth putting
away, for one covereth violence with his garment,
saith the Lord of Hosts."  The marginal rendering of our version-" the Lord God of Israel saith,
if he hate her put her away," which was given by
Jerome and adopted in Luther's Bible, would now
have, we suppose few defenders. Ewald's version
(in his Prophets) follows the Septuagint in making




GREEKS, AND ROMANS.            23
the sentence conditional: " when one out of hatred puts away, saith Jehovah God of Israel, he
covereth his garment with violence."  In this version no good sense is elicited; the rebuke against
divorce in the preceding context is not confined
to cases where the husband hates the wife; and
the conditioning clause which this rendering assumes is strangely divorced from the conditioned.
IIitzig in his commentary translates: "he hateth
putting away, saith Jehovah (i. e., Jehovah saith
that he hateth), etc., and him who covereth wrong
with his garment;" Kohler, a more recent coinmentator (in his Prophets after the exile, part 4),
" for I hate putting away, saith Jehovah, etc., and
crime covereth his garment " (who doeth this);
DeWVette in his version: " for I hate putting away,
saith Jehovah, etc., and him who heapeth crime
on his wife."  Nor is Hitzig reluctant to adopt
the translation wife instead of garment at the end
of the passage.*
Hitzig well remarks on the passage, " that the
putting away of the wife was indeed permitted
(Deut. xxiv. 4), but was not on the whole a thing
which God could look on with complacency, and
in the case before us it had in it something hateful,
not merely on account of its frequency. Perhaps
we have here the beginning of the stricter doc* A condensed exposition of this passage is given by Keil in
his Commentary on the twelve minor prophets, not long since
published. He adopts Kohler's views in almost all cases.




24       DIVORCE AMONG THE HEBREWS,
trine of the New Testament."  The beauty and
noteworthiness of the passage consist in the deep
moral and religious feeling which pervade it. The
wife and husband are bound by a covenant. To
put a wife away is to break that covenant, to act
treacherously or faithlessly. This is what God
hates. We have thought while studying this passage how our Lord must have pondered over it,
and how two places of the ancient scriptures, one
at the beginning, one at the end, coincide with his
views of divorce, while the law and practice of the
Jews spoke only of the hardness of their hearts.
It only remains to inquire what was the usage
of the Jews through their history, and a very
scanty answer is all that can be given. What the
moral sense of the nation allowed when the law
was given is gathered, as we have seen, from the
law itself. This passage of Malachi goes to show
that even in a reformed age, among the returned
exiles, the practice of divorce was not infrequent.
Examples however do not occur. In the time of
Christ it must have been not uncommon, although
nothing can be argued in regard to the morals of
the nation from Herod the Great and his family.
Josephus tells us (in his life, ~~ 75, 76) that he was
thrice married. The first wife and he separated.
He does not tell us how or why. The second he
put away, " not being pleased with her character,"
after she had borne him three children. Then he
took a third, whom he praises highly. The prob



GREEKS, AND ROMANS.              25
ability is that multitudes of his countrymen, especially the more heathenish part of them, made no
scruple of dismissing their wives at pleasure.*
DIVORCE AMONG THE GREEKS.
There is a great contrast between the destinies
of the conception of marriage as it appeared in
the Hebrew mind and in the Greek.     In the former race, most beautiful and elevated at the outset, but long encountering inveterate oriental
practice, and failing in a great measure to be realized, it is at last purified and brightened by
Christ, so as thenceforth to enter into the thought
and life of the world. Among the Greeks, on the
other hand, simple and severe at first, as it was
among the other western nations, averse to polygamy, perhaps regarding divorce with disfavor,
this conception became obscured and degraded as
they advanced to the acme of refinement. The
mythology which was elaborated in the earliest
epic period by the poets reflects already the morals
of a corrupted race, for they who could listen eagerly to rhapsodists narrating the adulteries of
Zeus or Hephsestus, must have been defiled themselves, and must have grown more so from famili* The authors whom we have principally relied upon are Saalschitz (Mosaisches Recht), Selden's Uxor Hebr. in Vol. II. of his
works, Winer's Realwort., and leading commentators. Selden,
from the mixture of the Rabbinical and scriptural, is very wearisome and confusing.
2




26        DIVORCE AMIONG THE HEBREWS.
arity with such examples.   Still a simple unsensual mode of life, and original tradition guarding
the sacredness of the family union, may have in
part for a long time counteracted the influences
of mythology. But when we come to the historic
ages of Greece, the case is widely different.  At
Sparta, notwithstanding the severity of the institutions, the sanctity of married life was not respected. It was reputable and customary there for
men to give over their wives to their friends, and
a king, for reasons of state, was allowed to have
two wives in two separate establishments.' At
Athens, the maid was reared in seclusion to protect her from the evil without.  She thus became
an unfit companion for the man who enlarged his
mind by taking part in public affairs.    Was it
strange, when as a matron she came to have a
larger liberty, that she should abuse it? Or was
it strange that the hetaera, conversant with men
and used to please men, should usurp the wife's
influence?  But it was strange, sadly strange,
that the corruption seized on youthful beauty as
its instrument, that a frightful unnatural crime,
punished with death in Christian lands, fastened itself on the intimacy of older with youn* See what Xenophon, in his Lacedemonian polity near the beginning, says of this and of a still more disgusting practice, with
no reprehension, and ascribing the licenses to Lycurgus. This
scholar of Socrates can have had no moral but only a political
view of marriage.




GREEKS, AND ROMANS.             27
ger men, and if not without rebuke, yet swept
abroad so widely, as to be the greatest disgrace
of the Greek civilization.  The study of morals
and the revival of moral feeling in the schools of
the successors of Socrates could not stem the corruption.*  The later Greeks of the Macedonian
and Roman periods, if we judge of them correctly,
were more enervated, more immoral, where they
had opportunity, than before, both outside of
Greece and within it. Marriage came to be regarded only as a convenience or as an evil; population fell off; whatever Greek virtue of the political sort had existed in great measure left the race.
Aristotle remarks in his politics that the old
Greek laws and usages were very simple and barbaric, and gives as an illustration that they carried
weapons habitually, and bought their wives from
one another. This custom of purchasing the wife,
of which we found traces among the Hebrews,
sprang out of the view of the child as the property
of the parent: the father had a right to the services
of his daughter until she passed beyond his control.
This usage is often alluded to in Homer. The word
for the purchase-money is hednon or hedna, but
inasmuch as the word may have had the wide sig* Beautiful passages in Plato's Laws show that he was awake
to the importance of purity in the family relations. A passage
in the eighth book, where he would have law attempt to secure
in the new city a degree of purity which he regards as almost
chimerical, is well worthy of notice (p. 841, D).




28      DIVORCE AMONG THE HEBREWS.
nification of a gift or present at first, and as the
father would naturally give a part of this wifemoney to his daughter as an outfit, it occurs also
in the sense of a present from the father to the
daughter, and in that of a present from the betrothed man or from other friends. Thus an epithet applied to maidens can be translated cattlefinding, because by the husbands whom they won
they procured cattle for their fathers. So also it
is said of a Trojan ally who was slain by Agamemnon, that to obtain his wife he first gave a hundred cattle, then promised a thousand head of sheep
and goats besides. Sometimes the father waived
his right of purchase-money for his daughter; Agamemnon is willing, if he can propitiate the angry
nind of Achilles, to give him either of his three
daughters without getting any hedna on his own
part, and he will give large presents in addition.
When a wife had been unfaithful to her husband,
he could claim the price he had paid for her; and
when for some other cause he had put her away, he
was expected to pay back the amount of the gift
or dower granted to her by her father. These
usages may have differed little from these of many
other nations.
In Sparta, after betrothal, marriage was consummated by a kind of mock robbery. At Athens
betrothal was universal in legitimate marriage,
and a dower regularly but not necessarily went
with the bride. She might have none, and yet be




GREEKS, AND ROMANS.          29
a lawful wife, whereas under Roman law the dower
was so much more essential, that the civil law has
been thought to entertain a presumption against
marriage without dower as being no more than
concubinage. That religious ceremonies attended
the marriage festival is undoubted, but no public
priest's services can be shown to have been thought
necessary. As women and children were always
minors at Athens, the wife passed from under her
nearest relative, as her kyrios-her guardian or
law representative-into the hands of her husband,
who sustained the same capacity. Yet it may be
added that as parental power was not so extensive
at Athens as at Rome, so it was with marital power
also. After the death of the husband or the divorce of the parties, the wife fell under the authority or guardianship of her next blood relative.
Divorce at Athens was easy and frequent. It
took two shapes, distinguished often by different
words, being called sending away or out of the
house (apopempein or ekpenmpein), when the husband repudiated the wife; but quitting and goiny
away (ap)oleipein) when the wife separated herself
from her husband.* In the first case, little if any
formality seems to have been required, although
we may perhaps argue fronm the instance of a
leading Athenian mentioned by the orator Lysias,.
that the husband usually made known his intentions before witnesses called in for that purpose.
* Other terms also occur, as ekballein, apoluein, aphionai.




30       DIVORCE AMONG THE HEBREWS,
There are several instances of this kind of divorce
mentioned in the private orations of Demosthenes,
which dem-onstrate what a bare matter of convenience marriage was at that time, and how destitute
of a moral element. Timocrates, having found a
rich heiress with whom he could connect himself,
sends away his wife, who without the interval of a
day is married to Aphobus, one of the guardians
of the orator Demosthenes during his minority.
Protomachus, a man in needy circumstances, having the same chance, persuades his friend Thucritus to take his wife from him; her brother betroths
her to this second husband, and the plaintiff for
whom the oration is written is her son. In a third
case, Polyeuctus adopts his wife's brother, gives
him his own daughter for his wife, and then, some
quarrel having arisen between the parties, takes
her away and gives her to Spudias. Then a suit
concerning dower was brought by the former husband against the father and the new husband. In
this case, if Leocrates and his wife did not agree
to separate, the latter must have initiated the steps
for the divorce, for it nowhere appears that the father or previous cyrios of a married woman pos
sessed this power.  In all such cases, notice in
writing of the divorce was probably lodged with
the archon or judicial magistrate.
The other description of divorce was when the
wife left her husband,-when she began the proceedings. In this case, she was required to ap



GREEKS, AND ROMANS.          31
pear in person before the archon at his office, and
there present a writing in which the reasons for
her separation from her husband were set down.
If both parties were agreed about the divorce,
that might be the end of the affair. She returned
to her nearest relatives, and her husband was obliged to pay over any dower that might be in his
hands. If the parties were not agreed, a suit
might arise, and the same seems to have been true
when the husband began the proceedings, but
nothing is known of the judicial process in either
case.
It was when Itipparete, wife of Alcibiades, and
daughter of one of the first men at Athens, stung
by the outrageous licentiousness of her husband,
had gone to the archon to take the above-mentioned legal steps for a divorce, that Alciliades
collected a band of men and dragged her away
from the place of justice. He may have done this
for the sake of her great dower of twenty talents.
At all events, according to Plutarch, he quashed
the proceedings, for she lived with him until her
death.  The same writer adds that the law required the presence of the woman desiring a divorce at the place of public justice, in order that it
might be in the husband's power to come to terms
with her and keep her with him.
Suits were doubtless very frequent in regard to
the wife's dower, which was either paid over to
the husband before witnesses or retained by her




32      DIVORCE AMONG THE HEBREWS,
kyyrios, subject to the stated payments of interest.
If paid over, security was taken on her behalf
upon her husband's property, and he was also
bound personally for it. If he delayed to pay it over
after the divorce, eighteen per cent. yearly interest
was due for the time of the delay. More might
be said on this matter, but the legal consequences
of divorce do not fall within our subject. It is
needless to add that she was free to marry again
as soon as the divorce took effect.
We have confined ourselves chiefly to Athens,
partly because it is a fair sample of the more
modern civilization of Greece, and partly because
the materials are exceedingly scanty, or fail altogether, for the greater number of the Greek States.
Legislation, however, made various experiments.
We give one example. Among the laws of Thurii
in Magna Graecia, according to Diodorus of Sicily,
there was one which gave leave to women to put
away their husbands and to marry whom they
liked. An old man, thus deserted by a young
wife, proposed and carried an amendment of the
import that whichever party, husband or wife, initiated the divorce, the said party should be forbidden to marry one younger than the former
partner, whereupon the woman returned to his
bed and board again. We put no great faith in
the story, much less in the ascription of the law
to Charondas. We give it only as a specimen of
the legislation that was going on, wherever free




GREEKS, AND ROMANS.             33
Greeks could govern themselves, and which, although in general starting from the same conceptions of marriage, and making divorce exceedingly
easy, yet without doubt would exhibit, if it had
been preserved, various peculiarities in different
parts of the Greek world.
It is probable that after the Macedonian conquest these differences of legislation, where Greek
States were autonomous-and that they were so
to some extent even in Roman times is well known
-were obliterated, and that a general average
conception of the family relations, having almost
nothing of morality in it, pervaded the whole race.
The Greeks still adhered to monogamy, still allowed concubinage with scarcely a frown, still
granted almost unlimited freedom to the separation
of man and woman.
It is pleasant in this state of public feeling to
know that a few voices were lifted up in favor of
a somewhat better practice.   The testimony of
Plato in his Laws is worthy of mention.* He
would take away from the parties interested the
license of separation, and place divorce under the
control of State authorities. If, says he, through
infelicity of character a man and his wife cannot
* The principal authorities besides passages of anchors, and
especially of Demosthenes in his private orations, are the writers on
Attic law, especially Meyer and Schomann's Attische Process,
page 408, onward; Platner's Process, part 2, page 245; and the
writers on archaeology, especially K. F. Hermann.
2*




34       DIVORCE AMONG THE HEBREWS,
agree together, let the case be put into the hands
of ten impartial guardians of the law, and ten of
those women to whom the matter of marriages is
committed. Let them reconcile the parties if they
can; and if not let them act according to their
best ability in providing them with new spouses.
If the philosopher means that the new yokes are
to be laid on by force, it would most probably act
as a restraint on divorce, and check the desire of
separation, but whether it would do any other
good might be reasonably doubted. This is about
as far as the gospel of beauty could go. Plato's
own view of marriage is certainly far from being
the most elevated one, as his Republic testifies.
It needed a gospel of holiness to put the Greek
mind on a better track in regard to marriage and
divorce.*
DIVORCE AMONG THE ROMANS.
The Romans had more of the moral and the religious in their character than the Greeks, as is
manifest from that strong sense of justice and
love of established form which pervades their law,
and from that ancient fear and superstitious worship of the gods which ran down in the end into the
merest formality. Their early institutions, more
than those of any western nation, partake of
patriarchal life. The closeness of the family tie,
~ Leges xi., p. 930, A.




GREEKS, AND ROMANS.            35
the septs or gentes of the patricians, and the vast
powers of the housemaster over wife, children, and
slaves, which it took ages to undermine, all point
in that direction; and their peculiar veneration
for ancient form in all things is of the same source.
In fact so essential is the early constitution of the
household to the Roman State, that State life, as
it first shows itself, may be said to have grown
directly out of family life.
Roman marriage in its earliest forms was for
the wife a passing out of her natural family, where
she was under the absolute control of its head,
into the family of her husband, whose control was
nearly the same as that of her father or grandfather. She was now said to be in his ha2nd, and
the marital power was known by the name of
mnanus. There were three forms known to early
Roman times by which the manus was acquired
by the husband. Of these, without entering into
the province of Roman archaeology, it seems
necessary to say a word for the better comprehension of the subject. The oldest of these, confarreation, which was exclusively patrician, was celebrated with special formalities by public priests
in some sacred place before witnesses, and the
macits was acquired by the same act by which the
marriage was solemnized.   This may be called
religious marrriage. The two others arose, as it
seems, in plebeian life. Of these, qasuss was probably the earlier, a kind of prescription, in which,




36       DIVORCE AMONG THE HEBREWS,
when the bride, after the regular betrothal and
nuptials, had cohabited with her husband for a
year without an absence of three successive nights,
the manus or marital power was fully secured.
Here the marriage and the manus originated in
two acts widely separated in point of time. The
remaining form of originally plebeian origin —coemption-was a kind of fictitious sale, much like
that used in adoption and emancipation, and here
two contemporaneous acts give legal existence to
the manus and the marriage. These may be
called forms of civil marriage.  This last form
had become obsolete before Gains wrote his institutions in the second century of our era. The two
others were in a state of decay under the earlier
Roman emperors.
At an early date, we have no means of knowing
when, but long before Cicero's time, and before
the age of the comic poets, a free kind of marriage
without the manus came into vogue. It was preceded by betrothal and nuptials with religious
ceremony. The connection was legitimate, jural,
and respectable. In fact, had it not been so, there
would at length have been no marriage at all, for
this became in the end the universal form among
the Romans. Its essence consisted chiefly in these
particulars; that the union between the woman
and her natural family was not sundered, and that
the husband acquired no manus and no rights over
any part of her property except the dower. The




GREEKS, AND ROMANS.           37
motive which gave rise to this kind of marriage
may have been the unwillingness of the woman's
father to lose control over her and her property
in favor of one who was suspected or imperfectly
known. It is one, and perhaps the earliest, of
a series of innovations, by which patriarchal, patrician Rome surrendered its ancient iron habits, under the humanizing and loosening influences that
followed in the track of civilization and of empire.
The two kinds of Roman marriage differ greatly
when the power of dissolving the marriage union
is considered. In the forms by which the macus
was acquired the wife had no rights over herself
or next to none, while the husband could dismiss
her from his house at his pleasure. In the free
form of marriage, the husband and the person who
exercised the paternal power over the married
woman, or she herself, if she was sui juris, had
concurrent right to effect the separation of the
parties. Of such authority exercised by the wife's
father the comic poets of Rome furnish us with
instances, but in process of time, if he took this
step where there was an harmonious union and
perhaps a family of children, the husband had a
legal remedy against him.
The husband himself, moreover, was to some extent controlled by a very remarkable Roman institution, which derived its sanction from old custom rather than from positive law,-a family court,
consisting of blood-relations of both parties, to



38       DIVORCE AMONG TI-E HEBREWS,
gether with the husband himself. Such a court
was also assembled to try great crimes of children,
and yet there was not tle same necessity for assembling it, according to Roman feeling, as where
a guilty wife was to be brought to trial. And on
the other hand, where a husband had neglected
to call such a court before inflicting penalty on his
wife, his neglect was not punishable as a wrong,
but rather as an offense against good manners.
It is recorded of one Lucius Antonius (about the
year of the city, 440), that he was removed from
the Senate by the censors for having repudiated
his wife without taking council of friends, but the
same stigma might have been put upon him for
expensiveness, or other conduct not exactly illegal.
In the freer kind of marriage, as the husband acquired no power over his wife's person, the head
of her natural family must have called such a
court, if any were assembled.
Divorce, according to a tradition preserved by
Dionysius, was regulated by law fiom the time of
Romulus onward.    I-e says that it could take
place for violations of the law of chastity and for
drinking wine,-sentence of the husband and the
relations beingnecessary for its validity. Plutarch's
statement is that the wife could not separate herself from her husband, but that the husband could
repudiate his wife for three crimes-poisoning the
children, making false keys, and adultery. Winebibbing on the part of the wife we know fromI




GREEKS, AND ROMANSS.              39
other sources to have been a grave offense. IIe
adds that a man putting away his wife on other
grounds forfeited his property, half of which was
to be consecrated to Ceres, and half to go to the
injured partner.*  But these traditions can be of
no historical value.  They only show that divorce
in the olden times was in some way restricted, and
that family courts were of great antiquity.
A more reliable, yet no doubt confused, tradition declares the first divorce at Rome to have
occurred about the year 520 of the city-that is
eighty years after the divorce of Lucius Antonius
already mentioned-and under the following circuimstances: Carvilius Ruga is said to have greatly
loved his wife who was barren, but inasmuch as the
regular question of the Censor, at the time of the
census, required him to declare, on oath, that he
had, or would have, a wife libe'roruzm qucerezndorum
gratic, under pretense of avoiding a false oath,
he terminated the marriage state by repudiation.t
It is impossible to believe that no divorce occurred
at Rome for more than five hundred years from
its foundation, and yet there is no good reason for
* Dion. Hal., ii., 25; Plit., Romulus, ~ 22. Plutarch adds,
that a man who sold his wife, in which plebeian marriage forms
may have been practiced, was devoted to the infernal gods..* It is preserved by A. Gell., iv., 3, xvii., 21; 13 Valer. Max.,
ii., 1, and by other writers. For explanation of it we refer to
Rein's Rom. Privatrecht, p. 208, and to an essay in Savigny's
vermischt. Schrift, vol. i., No. 4. He violated public feeling
and his conscientious scruples were a mere pretext.




40       DIVORCE AMONG THE HEBREWS,
rejecting the story altogether. Various have been
the attempts to explain it or to reconcile it with
the probable state of facts. It may have been tie
first divorce in which a family court was not called,
or the first in which no fault on the part of the
wife could be alleged, and in which, without her
consent, the husband terminated the union.
This was just before the second Punic war.
The victories over Carthage, the extension of the
Roman empire in Greece and the East, conspired
with internal political changes and with the decline of religious fear, to hasten on a corruption of
manners and of morals, a luxury and an avarice
greater perhaps than any other nation ever reached.
Rome was built on family discipline, on economy,
thrift, and order, rather then on domestic affection.
The Roman matron, austere by the discipline of
life, was not much loved,-she was the house mistress simply. As soon as the old rigor of family
life passed away, every thing in morals fell, and
marriage was poisoned at its foundation.' At the
same time the increasing prevalence of'the free
form of marriage put it into the power of the wife's
nearest relations to dissolve the union for her, and
her own position became increasingly independent.
Thus a step which only the husband could take
under the old forms attended with the manus,
could now be taken almost as freely by the wife;
and a step which, in the older forms, needed a
solemn formality in order to be valid, could now




GREEKS, AND ROMANS.               41
be taken with almost no formalities at all.*  Add
to this that the dower brought by the wife became almost an essential part of marriage, and
avarice added its weight to the various other
motives for divorce, if the chance of a better dower
were offered. The dissolution of morals began
with the upper classes at Rome, but the contagion
could not help reaching the lower parts of society,
the needy, shiftless freeman, the supple freedman,
and the profligate foreigner, who made up a large
part of the free population of Rome.
Toward the end of the Republic, then, things
had reached this pass in regard to divorce:-that
public opinion had ceased to frown upon iti that
it could be initiated by husband or wife with almost equal freedom, that there was a ready consent of both parties to the separation in the prospect of marrying again, and that this facility of
divorce was open to all classes who could contract
lawful marriage. It might be supposed that the
crime of adultery would be diminished by the power thus furnished of entering into a new marriage
* In the confarreatio or religious marriage of the patricians,
a form called diffarreaiio-that is, separation with the ceremony
of offering the cake of spelt, as confarreatio denoted union with
the same ceremony-dissolved the marriage tie. In both coemptio
and usus, it is probable, a form called remancipatio, another fictitious sale, set the wife free from her husband. In marriage
without the manus no form was necessary, and this kind of marriage at the fall of the Republic had superseded the others almost
entirely.




42       DIVORCE AMONG THE I1EBREWS,
with an object of guilty attachment. But adultery
too went along with divorce. They were both indications of a horrible corruption, and neither of
them was a vent-hole large enough to let off alone
the inward foul stench of family life. And if
proof were wanted of this we need only refer to
the legislation of Augustus, and to the continual
allusions made to adultery by the poets of the
imperial times, such as Juvenal and Martial.
A few particulars, however, illustrating the
sunken condition of the Roman lady toward the
end of the Republic, and the small degree of sanctity which the marriage tie had now come to have,
will perhaps make more impression than the most
emphatic general statements. Already, before the
last age of the republic, there was a foreshadowing
of a decline of family morals in the expensiveness
and in the crimes of married women. It was not
enough that the Censor could interfere by his almost
unrestrained power as a conservator of public morals; sumptuary laws also, broken and disregarded
to be re-enacted with new provisions, show what
was felt to be an evil of family life. At an early time
also poisoning of a husband by a wife is noticed by
the Roman historians. The case mentioned by
Livy, as occurring in the year 423 of the city (B. o.
331) wears the look of an incredible prodigy.  A
number of the principal men having died without
known cause, a maid gave information to one of the
aediles that some of the leading matrons had pre



GREEKS, AND ROMANS.           43
pared and administered poisonous drinks. The
case was looked into by order of the Senate, twenty
were put to death at first, being compelled to take
their own potions, and as many as one hundred and
seventy were condemned afterward (Livy, viii., 18).
Again about the year 572 (B. c. 182) the wife of a
consul was convicted by many witnesses of having
poisoned her husband; and a little later, just before
the third Punic war, two of the first ladies of Rome,
being convicted of the same crime by a court of relatives, were put to death."
Nor ought we to overlook that frightful development of mingled superstition and lust, the affair of
the iBacchanals, which so much alarmed the Senate,
on account of its political as well as its moral aspects
in the year of the city 568 (B. c. 186), and which in
the very circumstances of its detection gives us a
dark picture of family life, and discloses to us, as it
were before the time, the corruption of Roman morals. It is to the year prior to that which brought
these things to light, that Livy assigns the introduction of foreign luxuries through the soldiery who
had served in Asia; —the costly garments and furniture, the singing women and sumptuous feasts, the
cook, "vilest of slaves in the view of the forefathers,' but now regarded as an artist. Yet, addshe,
what was then witnessed was but the seeds of a luxury that was to come. The corruption that grew
from the tinme of Sulla to that of Catiline, which
*  Livy, xl., 37, and Epit. xlviii.




44        DIVORCE AMONG THE HEBREWS,
Clodius helped to increase, at thle acme of which
that "strong-minded" woman, Fulvia, and then
such a person as Julia, an emperor's daughter, flourished, is acknowledged and painted in glaring col
ors by the Roman historians. They are more apt
however, to dwell on avarice, lust of power, and
luxury as the groundwork of the evil, not making
enough of the decay of religion and the family, and
less aware of the poisonous influence of slavery.
The satirist Juvenal speaks thus of the sources
of the corruption:
Nullum crimen abest facinusque libidinis, ex quo
Paupertas Romana perit.
And again,
Prima peregrinos obscoena pecunia mores
Intulit, et turpi fregerunt secula luxu
Divitiae molles.
But Horace goes more to the roots of things,
when he says
Fecunda culpse secula nuptias
Primum inquinavere et genus et domos.
Hoc fonte derivata clades
In patriam populumque fluxit.
We know Rome best during the last age of the republic, or at least biography and anecdote preserve
more details of the private life of that period. Let
us look at a few of these details which touch on
divorce and domestic morals.
First we notice cases in which a slight impro



GREEKS, AND ROMANS.          45
priety on the part of the woman furnished ground
for divorce.  Here the ancient severity and a
weakening of the family tie mingled their influences in one. A Sulpicius Gallus put away his
wife because she had gone abroad with her head
uncovered. An Antistius Vetus did the same, because his wife was seen by him talking in public
with a freedwoman of the common sort; and a
Sempronius Sophus, because his wife went to the
spectacle without his knowledge. These may have
been early cases: then, as morals fell and divorce
grew common, mere dislike, or a fancy for some
one else, caused men and women to desert their
partners with a very summary notice, such as tuas
res tibi habeto. An early instance of this occurs
in the case of AEmilius Paullus, who put away
Papiria, the mother of Scipio Africanus the
younger, without giving any reasons for the step.
Another striking instance is mentioned by a correspondent of Cicero, that of Paulla Valeria, the
sister of Triarius, who divorced herself from her
husband on the day that he was to return from
his province, for the purpose of marrying Decimus
Brutus. Innumerable must have been the cases
of this kind. As numberless were divorces on the
ground of adultery, provoked very frequently,
where the wife committed the crime, by the intolerable dissoluteness and disregard of the husband.
Only the fear of having to pay back the dower
seems now to have restrained divorce, and this




46       DIVORCE AMONG THE HEBREWS,
was often counteracted, as has been remarked, by
a greater advantage in prospect.
The lives of many of the most eminent Romans
show how loose was the marriage tie, or how
great the crimes of one of the parties.
L. Lucullus, the conqueror of Mithridates, repudiated two wives on account of their infidelityClaudia, daughter of a consul, and then Servilia,
half-sister of Cato the younger. Her sister, another Servilia, the mother of Brutus, Coesar's murderer, was a favorite mistress of Julius Csesar.
Coesar was married four times:-his first wife,
Cossutia, he divorced in his youth, to marry the
daughter of the infamous Cinna; his third wife,
Pompeia, he divorced on suspicion of an intrigue
between her and Clodius, who came by stealth
into her husband's house, in female attire, at the
celebration of the mysteries of the Bona Dea.
Caesar himself was notorious for his impurity
and libertinage, so that his soldiers scoffed about
it in a triumphal procession. Pompey, a less immoral but much meaner man, repudiated his first
wife, Antistia, to please the dictator Sulla, and
his third, Mucia, on account of her profligacy.
What shall we say of Cicero, one of the best of
the Romans, who dismissed Terentia without
crime, after a long marriage, to unite himself with
a rich young lady, Publilia, in the hope of paying
his debts out of her property. This connection,
also, proved unfortunate, and was dissolved in




GREEKS, AND ROMANS.           47
about a year. Nor was his daughter Tullia less
happy in her matrimonial affairs. Her first husband dying, she married a second, from whom ere
long she divorced herself, and then became the
wife of a most profligate man, Dolabella, who divorced his wife Fabia, it is said, to marry her.
Cato the younger was married twice, and the second wife was worthy of him, but the first, Atilia,
he divorced for adultery, after she had borne him
two children. To these specimens, drawn from
the families of the leading men at Rome, a rich
collection might be added. If we now go down
a little to Augustus, who forced the husband of
Livia to repudiate her for his benefit, and took her
to wife three months before the birth of a child
by her first husband, or to his minister Mmecenas,
who was as scandalous in his life as he was elegant
in his taste, or to the profligate life of Julia, the
emperor's daughter, and of so many other ladies
of the house of the Caesars, we shall find that family life grew worse instead of better, as the republic fell. There were indeed efforts made to effect
a reform. Augustus, profligate himself, endeavored to alter morals by legislation-first in the
year 727 (B. c. 27), then in 736 (B. c. 18), by
several laws, among which the lex Julia de adulteriis el ce pudicitia may be mentioned, and finally in 762 (A. D. 9), by the lex Papic Poppcea.
Of these laws, so far as they related to divorce,
we shall say at present but a word, although they




48       DIVORCE AMONG THHE HEBEWS,
form an epoch in the Roman legislation concerning the family relations. Divorce was now subjected to certain formalities, being invalid if not
declared before seven grown-up Roman men and
a freedman of the divorcing party. The man
whose wife was caught in adultery or found guilty
of it was obliged to put her away, on penalty of
being held privy to the crime, and it was made incumbent on him to prosecute in such a case within
sixty days, after which any other person might
act as her accuser. A woman convicted of this
crime was punished with relegation and a loss of
a certain portion of her dower and of her goods.
A freedwoman marrying her patron could not
take out a divorce without his consent. This
legislation also settled more fully and minutely a
principle already acted upon, that in suits concerning dower after divorce the fault of the wife
subjected her to a detention of a portion of the
dower. This in the practice of Roman law seems
to have been a most important matter, but its details do not belong here.
Augustus, and even that frightful wretch Tiberius,
acted as legislators in the department of family
morals. But morals grew worse and worse. iHe
who is shocked by the developments of family life
in the oration for Cluentius, or by such a character as Aurelia Orestilla, who, being reluctant to
marry Cataline on account of a grown-up son,
consummated the union when the son was made




GREEKS, AND ROMANS.             49
way with,-he who is shocked by these earlier
acts of wickedness will be more shocked by what
Suetonius and that tragic historianTacitus have to
tell of life under the emperors. It was then that
Seneca, a man better skilled in writing than in
acting morally, could say that no woman was now
ashamed of divorce, since certain illustrious and
noble ladies counted their years not by the number of consuls but of husbands.  The moral disease had reached the vitals, and was incurable.
As Rome rose to her greatness by severity of
family life, so she fell into ruins by laxity just at
that point.
Rome is a most interesting study for us Americans, because her vices, greed for gold, prodigality,
a coarse material civilization, corruption in the
family, as manifested by connubial unfaithfulness
and by divorce, are increasing among us.    We
have got rid of one of her curses, slavery, and that
is a great ground of hope for the future.   But
whether we are to be a thoroughly Christian nation,
or to decay and lose our present political forms,
depends upon our ability to keep family life pure
and simple.*
* For divorce among the Romans, Wachter's work on that subject (Stuttgart, 1822), Rein's Privatrecht (Leipzig, 1836), BekkerMarquardt's Roman Antiquities, part v. (Leipzig, 1861), and
Rosbach's Roman Marriage, deserve, among many others, especial
mention.
3




50          DOCTRINE OF DIVORCE
CHAPTER II.
DOCTRINE OF DIVORCE IN THE NEW TESTAMENT.
NOTHING places in a more striking light the
sway of Christ over the mind of the Christian
world than the fact that a few hints of his have
been enough to turn the opinions and the practice
of men into a new channel. This is illustrated by
what he says of divorce; in giving commands concerning which he passes outside of his ordinary
line of teaching, and enters into the region of positive external morality, instead of confining his
precepts to the regulation of the thoughts and the
affections. What he says on this subject is small in
compass, it is a moral rule, and not a law for a state,
it leaves more than one problem to be solved, and
yet it has to a great extent controlled Christian
law in an important branch of private relations,
it has directed the discipline of the Church, it has
helped to purify the family, and thus has aided the
spread of the Gospel. It was, moreover, eminently needed at the time when it was made known.
We hope to have shown, in our first chapter, that




IN THE NEW TESTAMENT.         51
the great looseness and corruption, in the marriage
relations, of the three nations to whom the world
owes most of its progress, called for a reform, that
there was need that a higher idea of marriage, a
deeper sense of its sanctity should be placed among
men, and a community be formed where the practice should be consonant with the idea. This has
been done by Christ through his church; and they
who receive him as the Lord from heaven, when
they reflect that he is abstinent and reserved on
most points of external morality, will admire the
wisdom which led him to be outspoken on this.
We propose, in the present chapter, to examine his
words relating to divorce which are on record, and
then to proceed to a consideration of the Apostle
Paul's precepts on the same subject.
The passages in the Gospels which bear on the
subject of divorce are contained in Matthew v.
31, 32; xix. 3-9; Mark x. 2-12; and Luke xvi.
18. The second and third of these passages were
evidently uttered on the same occasion in reply to
tempting questions put by Pharisees, and with
some differences of importance they have the
same strain of thought. The passage in Luke is
found in company with verses, between which the
connection of thought is hard to be traced, in an
address or reply to the sneers of covetous Pharisees. When we compare this passage with that
in the Sermon on the Mount, the disjointed
thoughts in Luke have a light thrown upon them,




52           DOCTRINE OF DIVORCE
and appear to be fragments of the same discourse.
Without the place in Miatthew we could find no
law of association in Luke, or at most could only
guess at one. But with the help of the first gospel,
verse 17 of Luke, " and it is easier for heaven and
earth to pass than one tittle of the law to fail," occurring as it does in Matthew, chap. v., and being
an essential part of that wonderful sermon, is seen
to have a vital union with verse 18, which treats
of divorce. Either then Luke gives us detached
parts of the sermon, or Christ repeated his instructions in similar forms on different occasions,
in the one case delivering them to the people, in
the other to the Pharisees. Which of these harmonizing theories is to be chosen it is not our business here to decide. We assume that our Lord expressed himself at least twice on the subject of
divorce, and not once only, for we assume that
there was a connected discourse on the mount, and
that the words in Matthew, v. 31, 32, fit too well
into that discourse not to have belonged to it
from the first.
The principal differences between these places
of the gospels are the following:-1. Matthew in
both his passages adds a condition under which
divorce is permissible,-"except on the ground
of fornication," "but for fornication,"-'while Mark
and Luke express a prohibition of divorce which
is altogether absolute. It is easy to say with Meyer,
that the condition, being understood of course, did




IN THE NEW TESTAMENT.          53
not require to be expressed. But we ought to notice
that St. Paul also, when he refers to our Lord's
teaching, inserts no condition whatever. We have,
then, three witnesses to the absence of the condition against one for it, and the conjecture is not
altogether improbable that it was added for the
sake of greater clearness in Matthew, rather than
omitted out of brevity by the others as being
understood of itself."  Upon the meaning of
Topvse and the condition itself, we shall speak
hereafter.
2. Mark has the important addition, "if a woman shall put away her husband and be married to
another she committeth adultery."  Now as by
Jewish law a woman had no power whatever to
put away her husband, this certainly looks like an
addition to the original words of Christ, intended
for the relations of believers in the heathen countries, where wives could procure divorce as well as
husbands. But here again Paul supports Mark in
1 Cor. vii. 10: " unto the married I command, yet
not I but the Lord, let not the wife be separated
from her husband."  What if by the law of Moses
the wife could not be active in a case of divorce,
we know that this occurred in the family of Herod,
and it is likely that Greek or Roman custom may
* As in Romans, vii. 2, 3, where the apostle says broadly, " to
the living husband," " while the husband is living," although the
law allowed the wife, when put away, to marry another during
the first husband's life-time.




54           DOCTRINE OF DIVORCE
already have begun to creep into Palestine; at least
the license of divorce allowed by the rulers of the
world could rnot have escaped the knowledge of our
Lord. Why is it incredible then that he should
have contemplated the case of a woman putting
away her husband?
3. In Matthew xix. our Lord says every thing in
the presence of the Pharisees. In Mark x. he gives
out the principle of the indissolubility of marriage,
and then in the house expounds the matter further
to his disciples. Some critics see a mistake or inaccuracy here. If there were any, it must belaid
at Matthew's door, for the words of Mark, " and in
the house the disciples asked him again of this
matter,' give proof of fresh clear recollection. But
is there any thing forced here in the supposition that
our Lord went over again to his disciples with what
he had said just before, so that there was no need
on the part of either evangelist to give an account
of the whole conversation. In Matthew the disciples felt perplexed by what he had said, and put
him further questions. They would not readily do
this before the carping Pharisees, and so Mark's
statement that the subject was continued in the
house is justified, and his account of what was said
in the house rendered at least probable.
Having thus discussed the form in which our
Lord's words appear, let us now look at their purpose and their import. Here the first thing to be
noticed is that our Lord acts the part not of a civil




IN THE NEW TESTAMENT.          55
legislator, but of a supreme moral teacher. I-e
does not establish a law concerning divorce, but
declares that the existing code permits certain
things which must be condemned as wrong, as
violating high ethical rules acknowledged by the
law itself. Every moral teacher, not to say every
moral man, must take the same position in regard
to the laws of his country. These may, in fact
they must, fail to forbid many things which sound
morality condemns. The law is an external, general, coarse, imperfect rule, commanding often what
the ethical code requires and as frequently permitting what that code prohibits. If there were
any permissions of the Jewish law which ran
counter to true righteousness, if it afforded any
facilities for transgression which ought to be cut
off, it was the business of Christ to notice them and
to animadvert against them. Herein he differs in
no respect from any other moral teacher.  Nor
are these verses touching divorce peculiar in this
respect.  When he cites the lex talionis of the
Old Testament, "an eye for an eye, and a tooth
for a tooth," he tells his hearers that justice as expressed in the law might permit this to be done,
but there was something higher then justice;' resist not evil " was a better law of life, a law
necessary for any one who would be his disciple.
Now it might happen, as it has happened, that
some of these rules propounded by our Lord
would reform and transform legislation. Such,




5 6          DOCTRINE OF DIVORCEowing to the fact that marriage has most important civil, moral, and religious relations, would inevitably be the result of the utterances concerning
divorce. Still they are not properly legislation,
but they are principles which in lands under a
Christian faith must leaven all legislation.
Secondly, the tone our Lord uses, and the ground
on which he puts his restrictions of divorce, show
at once a remarkable depth of thought and the
consciousness of an authority such as pertains to
a divine messenger. The man who beyond all
others was nourished by the scriptures and reverenced the scriptures, criticises a provision of the
Mosaic law, and taxes it with imperfection. In so
doing he boldly lays down a principle of the utmost importance and of far-reaching consequences,
-that the Mosaic economy, although given by
God, was rudimentary, transitory, and accommodated to the state of a nation not yet capable of
the highest kind of civil polity. There is in his
words even the germ of an abolition of the old
economy, the beginning of a judgment pronounced
against the old rites, in short against the old religion in its external forms; for if divorce was permitted on account of the hardness of the people's
hearts, why might not the forms of the ceremonial
law be accommodated to an early stage of their
progress and be unsuitable for a more advanced
stage. Thus our Lord, without seeming to do so,
drove that entering wedge into the law, which




IN THE NEW TESTAMENT.          57
Paul and his school drove further, until all men
saw that it was done away in Christ.
Nor is the reason which our Lord gives for his
new morality, in the matter of divorce, less remarkable. The freedom allowed by the law, lie
says, was inconsistent with the true primeval conception of marriage. Law, a patchwork of expedients, needs not to conform to the true conception of human relations,-that is to say, there are
times, there is a state of feeling, a "hardness of
hearts," which stand in the way of perfect legislation, although the nearer the law approaches to
that standard, the greater the proof and the greater
the security of the genuine culture of the people.
But morality must conform to the true idea, and
it is the highest merit of a moral teacher, if he has
the idea, bright in his own mind and is able to set
it forth to-his fellow-men.  Christ had this idea.
I-e who never drew from experience any judgments concerning the human relations of which
he here speaks, whose vocation was too high for
the entanglements of family life,-this man corrects the judgments of men by a reference to the
essential nature of marriage; it is the state of life
in which two have become one flesh, it is a state
founded by God at the first creation of man, it is
therefore a union made by divine authority which
human authority may not sever.
Before proceeding to the special rules which our
Lord lays down, we remark that he does not side
3*




58           DOCTRINE OF DIVORCE
with either of the two schools which then divided
opinion among the Jews on the subject of divorce.
The doctrines of Hillel- of course he utterly discards, but he does not give his adhesion to those of
Shammai any more than in the conversation with
the Samaritan woman he pronounces altogether
for the Jews against her nation. In fact it is altogether probable that his rule is far stricter than
that of the school of Shammai, and he shows no
interest in the explanation of Deut, xxiv. 1-5,
about which the Rabbis wrangled. His interest is
moral, his views are general and human, not Jewish and Mosaical, while his line of thought must
have surprised the tithers of mint, anise, and cummin.
What then does he lay down? His rules may
be all comprised in the following propositions:
First, that the man who in conformity with the
permission or sufferance of the law puts away his
wife by a bill of divorcement,-" saving for the
cause of fornication "-and marries another commits adultery, or, as Mark has it, commits adultery " against her," or to her injury.
Second, that the man who thus puts away his
wife causes her to commit adultery, that is, by
placing it within her power to marry whom she
pleases leads her to form an adulterous connection,
inasmuch as she is still his wife in the eve of God.
Matthew alone preserves this declaration.
* See Chapter I,, page 15.




IN THE NEW TESTAMENT.         59
Third, that the man who marries her who has
thus been put away commits adultery. This rule
is contained in both places of Matthew, and in
Luke, but not in Mark.
Fourth, that the woman who puts away her
husband and is married to another commits adultery. As we have already had occasion to say,
Mark alone has recorded this declaration, but is
sustained by the Apostle Paul.
The general principle, serving as the groundwork of all these declarations, is, that legal divorce
does not in the view of God and according to the
correct rule of morals authorize either husband or
wife thus separated to marry again, with the single
exception that when the divorce occurs on account
of a sexual crime the innocent party may without
guilt contract a second marriage.
In the application of these precepts for the
guidance of the church of Christ, we assume for the
present that whatever is said only of the husband
may be said, ceteris pcaribus, of the wife also. Had
the case of a woman divorcing herself from her
husband never been put on record by Mark, the
reason of the rule would have applied equally to
her, and the fact that Jewish law never gave the
woman the power to commence proceedings in a
divorce would have sufficiently accounted for all
silence respecting cases of that description. This
case is plain enough, but there are questions of
some importance and of some difficulty growing




60           DOCTRINE OF DIVORCE
out of our Saviour's words which need to be considered.
We notice in the first place the fact that nothing is said of the remarriage of a party-a woman
for instance-divorced on account of her crime. It
has been gravely argued in our country and our
time, that inasmuch as the married pair are no
longer one flesh after crime, the guilty one is free
to marry again, yes, even to marry the tempter or
seducer, and that this is no violation of the law of
Christ. We admit that Christ observes silence on
this point. He could not say that such a guilty
author of a divorce committed adultery by marrying again, for she is now free from her husband.
But it would have been idle to refer to such a case,
for in the first place it had nothing to do with the
immediate point on which Christ expresses an opinion, and in the second place such a person would
have been punishable by Jewish law with death.
To claim for an adulterer and an adulteress the
protection of law in a Christian state, so that, when
free through their crime from former obligations,
they may legally perpetuate a union begun in sin,
is truly to put a premium on adultery. A Herod
on that plan, after sinning with his brother's wife,
would need only to wait for legal separation to
convert incest into legitimate wedlock.
Another question of importance relates to the
meaning of,ropveia in the two passages of Matthew.
Is it synonymous with potLie(a or does it embrace




IN THE NEW TESTAMENT.         61
unchaste acts not going to that length 2 Can it
include acts committed before marriage, or must
it be confined to sins which violate the marriage
covenant?  Interpreters might be named who!
have given latitude to the word in one or the other
of these respects. In regard to the question of
time, it is enough to say that our Saviour's whole
strain of remark assumes that the parties have become one flesh, and that one of them by the violence of crime has been torn away from the other.
He does not go back of the commencement of
marriage to inquire what previous crimes, frauds,
deficiencies, or closeness of relationship made the
union illegitimate ab initio.  That he leaves to
the civil law. He is not giving a lecture on marriage or making canons for church discipline; he
is merely answering a question in regard to the
termination of a marriage already existing. How
then can we conceive him to have referred in his
precepts to an antenuptial condition of things. To
this, which is entirely conclusive, we might add a
consideration which is only corroborative and has
no independent force of its own, that in corrupt
states of society a most alarming license would be
given to divorce by making such a precept embrace
a whole life-time, especially if the rule were applied
alike to both sexes.
The word then relates to what has transpirti
since marriage.  We add that it must refer to
some outwoard act. It can not in its proper se -so




62             DOCTRINE OF DIVORCE
denote a mere quality, and, if ever used with a
breadth of meaning to embrace sensual lust, it
must be in the company of words which make its
sense clear, like "in his heart,' Matthew v. 28.
It must intend a positive outward act which all
would understand to be a violation of the obligations of marriage, a departure in essentials from
its idea; for so we can best account for the
omission of the condition in Mark, Luke, and St.
Paul's writings, and for its appearance in Matthew
alone. It must point to crime wrought by one of
the married pair with a third person, not to wanton conduct in which the married pair unite,
which might be called impurity, or lewdness, but
iever 7opveia in any proper sense. We have then,
in assigning it a meaning, to choose between the
narrowest sense, in which it is strictly synonymous
with adultery, or a broader sense, including as
well crimes more grave and bestial than adultery,
as acts of attempted but interrupted crime.     It
seems hardly worth our while to decide whether
the narrower or wider sense ought to prevail.
Many of the best interpreters regard the word as
equivalent to the more specific toize('a, and we are
willing to accede to their opinion.*
* Origen seems to understand it thus, Tom. 14 of his comment.
on Matthew (iii. 322, 323, ed. Lommatsch). So Greg. Naz. says
(Or. 37), that Christ allows separation only from the 7r6pvy, because she voOSevet r- ylvo~. Basil in his 21st canon cited by Suicer,
voce r6pvog used that word in the same way, and Balsamon re



IN THE NEW    TESTrAMENT.           63
But why should an exception like that in the
two passages of Matthew      be made, if TroQveia is
the same as adultery, when the latter crime was
punishable with death and thus divorce would
seem  to be superfluous.     A  conjectural answer
might be drawn from the altered circumstances of
the Jews in their later times, when intercourse
with the more polished heathen, in whose eyes
sexual crimes were not very heinous, tended to
relax the strictness with which the law was enforced, and when the right of capital punishment
was taken away from their courts by the Romans.
But a better solution of the difficulty lies in this,
that the husband was not bound, so far as appears,
to denounce his guilty wife, but that it was the
business of the local police to bring crimes before
tile local courts-the elders or presbytery of the
commune-for their examination and sentence.
Thus the husband, even in such cases, might give
the ordinary bill of divorcement, leaving it to
common fame to bring the matter before the pomarks that he calls the adulterer a ro6pvoS. Euthymius in his
commentary on Matthew v. 32, explains the one word by the
other. All the most recent commentators of highest credit do
the same. For opinions allowing a wider sense to the word,
Tholuck (Bergpred., ed. 3, p. 229), who himself adheres to the
sense which is here defended, and Alford in his note on Matthew
v. 32, may be consulted. We may add that in Hosea ii. 3, where
it is said of the wife whom he bought in symbol, "thou shalt not
play the harlot," there is the same substitution of the more general
for the more specific term.




64.DOCTRINE OF DIVORCE
lice magistrates.*  This view  of Jewish usage
gives a better explanation of Jer. iii. 8, than that
which we gave in the first chapter. God is there
spoken of as putting adulterous Israel away, and
as giving her a bill of divorce, and if our present
explanation is the right one, there was no deviation
in this from the usage in actual cases of adultery.
The husband put away his wife, and on the magistrates devolved the duty of bringing her to justice.
With this agrees what is said     of Joseph, in
Matthew i. 19.   He was a just man, and therefore unwilling that the supposed crime of his betrothed should go unrebuked, and yet being reluctant to expose her, he made up his mind to put
her away so as not to attract public notice.
Justice was satisfied in his view, so far as he was
concerned, when he abrogated the contract by a
private separation. 
But there are frightful crimes against nature,
odious even to the heathen: supposing these not
to be included in the term Tropveia will they furnish
no ground for divorce? All that needs to be said
here seems to be that death is the penalty for such
crimes by Jewish and many other laws, so that
the separation would be inevitable; that our
* Comp. Saalschiitz, chapters 4 and 5, on the judges and the
Shoterim.
T The notion at one time pretty common, that diKatog here
means mild, clement, is now nearly exploded. The betrothed was
treated as a wife by the law. Deut. xxii. 23.




IN THE NEW TESTAMENTo         65
Lord had no occasion to speak of gross crimes of
very rare occurrence about which there could be
no difference of opinion; and that if both he and
the Pharisees admitted these crimes to be more
than adultery, his exception by right reason would
include them.
There ought to be, however, some reason why
nopveia, the generic word, is here used instead
of the more specific /potXefa.  That reason can
hardly be the rhetorical one of avoiding the
repetition of the same word. Nor can it well -be
what Tholuck suggests, in his commentary on the
Sermon on the Mount, that the generic word gives
more indication of the moral category of the
offense. Still less is De Wette's solution satisfactory-" that totLEsa is avoided because the verb;zotlaaoat is afterward used in a wider sense."
Perhaps the explanation may be found in the consideration that as the same offense could be called
by the one name in relation to the husband, and
by the other in relation to the paramour, the word
was naturally suggested.
The one exception made by our Saviour excludes all others, unless it can be shown that they
are embraced under the same reason to an equal
or greater extent. Meyer and Tholack therefore
justly rebuke De Wette for his loose assertion that
in allowing one actual ground of divorce our Lord
allowed more than one. The exception, when the
indissoluble nature of marriage is the starting




66             DOCTRINE OF DIVORCE
point, is of strict interpretation, or else such as
all, at the time when it was made, would admit
withiout its being mentioned.    And this remark
brings us to the passages in the two other Evangelists, and in Paul where no exceptional case is
stated. The reason for these unqualified statements of the sacred writers is not-as Meyer well
observes-that Christ conceded somewhat at first
to Jewish marriages contracted before his church
was established," but that the two Evangelists
and the Apostle regard the exception as a matter
of course, and pass it over in silence. This they
miight well do, if the exception related to so great
a crime as adultery, which of itself actually caused
the married pair to be no longer one flesh, which
violated the idea of marriage.
There is nothing in these passages, nor in our
Saviour's principle in regard to marriage, nor in
other passages of the New Testament, that can
fairly be regarded as forbidding the innocent
party, against whom    the crime of adultery has
been committed, to contract a second marriage.
This severe opinion arose in the early church.
Augustin advocated it in his treatise de conj'ugiis
* A worthy Catholic scholar, Hug, throws this out, and it
would help the absolute indissolubility of marriage according to
the view of that church, but it would require us to believe that' except it be for fornication," in Matt. xix., is an interpolation.
Of this, however, although the reading varies, there is no good
evidence.




IN THE NEW TESTAMENT.         61
adullerinis, although in his retractations** this nobly
honest man doubts whether he has cleared up the
matter in that work. The opinion became current
and passed into canonical law. The Council of
Trent, in the seventh canon on matrimony, pronounces a curse on him who taxes the church with
error for teaching " that he commits adultery who
puts away an adulterous wife and marries another
woman, and that the woman commits the same
crime who puts away an adulterous husband and
marries another man." But this canon, which
rests on a view of marriage not entirely scriptural,
receives no sanction from the New Testament. It
is most clear that the words "except it be for
fornication" (Matt. xix. 9) allow divorce in that
particular case, and that in the divorce spoken of,
liberty of remarriage is implied.  The question
is, what must the parties to the conversation
have understood by putting away, as our Lord
here uses the word.   How   could they have
guessed that he meant separation q.oad torui
only, which was not known to the law? Is it
not evident that they were compelled to give that
sense to his words which divorce had in the law
of Moses about which they were talking. The
permission then to put away a wife in this one
case involves a permission of remarriage to the
innocent party.
After the same analogy the parallel crime of
*Lib. ii., chap. 57.




68           DOCTRINE OF DIVORCE
the husband separates the married pair to the
same extent, and involves permission of remarriage to the innocent wife. This is generally
conceded by those who do not hold with the Catholics that marriage cannot in the absolute sense
be dissolved by crime.  But a difficulty here
arises. What sense shall we attach to the word
adultery-the narrower Jewish sense, or the broader one, which the word now generally carries with
it? Among the Jews the wife and the husband
were not on an equality; the husband might commit whoredom with an unmarried woman without
being an adulterer; the wife was an adulteress
when she fell into similar transgression. What
then would our Saviour have meant, had he uttered
the words used by Mark (x. 12), " and if a woman
put away her husband,"' with the qualification
found in Matthew, saving for the cause of fornication?" Ifs opvesa could mean any lewd conduct
inconsistent with being one flesh, the case might be
clear, but this is, to say the least, doubtful, and we
have not been able to admit it. As far then as
the use of words is concerned we cannot infer
that our Lord gave the same liberty of remarriage
to the wife thus injured as to the husband sinilarly wronged. But when we consider that he
must have viewed the husband's crime with an unmarried woman as a great one, as an equal violation of the marriage covenant with the wife's, as
an equal breach of the original law or declaration




IN THE NEW TESTAMENT.         69
that' they twain shall be one flesh," which excludes all sexual impurity of both alike with any
one else, we believe that he would have placed
both partners on the same ground, and given liberty of remarriage in that one case to the wronged
woman. And yet in the absence of any words
from our Lord, we do not hold this opinion with
the same confidence as we hold that the liberty of
remarriage for the man, when the woman is the
offender, is clearly to be gathered from our Lord's
precepts.
But may it not be said with Augustin,* that the
precept of Paul, " if she depart, let her remain unmarried," can only be reconciled with the words
of our Lord, on the supposition that this departure had taken place on the ground of the adultery
of her husband. She could then put him away
or depart from him, but according to Christian
law had no liberty of remarriage; and she might
be reconciled to him so as to live with him again.
The same would be true, mqutatis mutancdis, of the
husband, and thus forgiveness for the highest matrimonial crime would be i.n accordance with the
spirit of the gospel, but remarriage be opposite
both to its genius and its positive rules. Or, to
express the argument in a word, Christ allows putting away only on account of adultery. But Paul
conceives of a separation of one member of the
church from another who is a husband or wife.
* De adult. conj., near the beginning.




70           DOCTRINE OF DIVORCE
Therefore this separation must be on the ground
of adultery. But the party leaving the other
must remain unmarried. Therefore the man or
woman separated from a guilty partner must remain unmarried.
The only way of meeting this argument is to
deny that separation is understood by Christ and
Paul in the same sense, and to take the ground
that the case of adultery was not before the Apostle's mind. Christ was arguing with the Pharisees on such divorces as were attended with a license of marrying again, and denies that any such
could take place except in one specific instance.
It is in the highest degree improbable that he had
in his mind separations a mensa et toro. Did
Paul draw the rule tighter, and deny that remarriage was lawful even in that specific instance?
Or did he not rather contemplate such separations
of an informal sort, begun without even the idea
of remarriage, as might have occurred within the
Christian Church?  To us it appears that he
meant such separations by his word Xoptaip, and
he says in effect, if separated let her not commit
adultery by marrying again, which she would do
if she had left her husband for a cause falling
short of adultery.
We now pass on to that important passage in
the first of Corinthians, where the Apostle Paul
handles the subject of divorce.  Two cases are
here noticed, one for which the Lord had given




IN THE NEW TESTAMENT.         71
commandment, where both the parties were
Christian believers, and another which had not
been provided for by the Saviour's authority, where
one of the parties was an unbeliever. In regard
to the first case, the Apostle must refer to the commandment contained in the extant words of Christ,
or to some other of similar import. We have already observed that he coincides with Mark in
speaking of a wife divorcing herself from her husband, and with both Mark and Luke in omitting
the exception which Matthew twice inserts in his
Gospel. How the exception came to be omitted
we have tried to explain, and the explanation will
derive additional weight from a similar omission
in Rom. vii. 2, where, when it broadly said that
the wife is bound by the law to her husband as
long as he liveth, the Apostle puts out of sight
the husband's freedom of divorcing the wife which
the law itself concedes to him.
The commandment of Christ is limited, as we
conceive, by the Apostle to the case where both
partners in the marriage are believers, because only in such a case could it be regarded as the practical law of the household, whatever might be the law
of the land, and in such a case its infraction would
always fall under the jurisdiction of the church. In
the other case one of the parties would feel bound
to submit to a commandment to which the other
attached no binding force. It may be that the
Apostle regarded marriage to be as indissoluble




T2           DOCTRINE OF DIVORCE
in itself for partners of diverse faith, or even for
two heathen, as for two Christian believers. The
principle uttered by Christ of the " one flesh," he
may have fully received as applicable to marriage
in general, and yet there was need of discussing a second case, not because the principle here
was different, but because it contained difficulties
which needed to be considered by themselves.
We must not impute to the Apostle the opinion
that Christ's precept was not as broad as the reasons on which it was based, but the gospel in its
spread met persons whose subjective state could
not be controlled by the precept: there was need
therefore of advice for those whom such persons
affected by their conduct.
The Apostle's repetition of the Gospel precept,
besides the prohibition there found, contains the
decision of a case that may have existed at the
very time in the Corinthian church. Let not the
wife separate herself from her husband.  But
should she even have separated herself,-which
seems to imply that instances of this kind had occurred and were known to the Apostle,-let her
remain unmarried or be reconciled to her husband.
Here the latter words imply that the separation
was due not to any crime on the husband's part,
but to dissensions between the married pair. And
the Apostle allows the wife who has gone so farsuch is the sense of icat-as even to withdraw from
her husband and to live apart, the choice between




IN THE NEW TESTAMENT.         73
remaining unmarried and returning after an amicable settlement of the difficulties, to the former
condition. Iere the verb denoting separation is
somewhat indefinite in its sense. It can denote
simple withdrawal from the husband's house and
society without any formal act by which remarriage would be legalized, or it can include the
declaration of a purpose of divorce besides.  We
question whether it means so much as this, although it is used as the equivalent of a'oyFC. For
the Apostle says, " let her be reconciled," which
seems to imply that mere peace between the parties and return to the husband was all that she
had need of, as not having already taken the
step of a legal separation. Yet, on the other hand,
the expression "let her remain unmarried," implies the power of sooner or later contracting a legal marriage with another man. But whatever
may be thought of this, it is obvious that the Apostle conceives of a state of things in which a woman, separated from her husband, and that, it may
be, permanently, shall have no right, according to
the Lord's commandment, of marriage with another man. In other words, we have here an actual separation a mzensa et toro without a separation a vinculo matrimonii. This third state between absolute divorce and the lull marriage
union has then the sanction of the Apostle,-not
of course as something desirable, but probably as
a kind of barricade against divorce and a defense
4




7O4          DOCTRINE OF DIVORCE
of the Saviour's commandment. It may be introduced therefore into the law of Christian lands.
From cases where both parties were Christian
believers the Apostle passes on to a new kind of
cases, doubtless frequent enough, for which Christ
had not provided,-those in which one of the parties had received the Gospel, while the other still
continued a heathen. In regard to all such cases
the Apostle's words involve, without expressing
fully, the principle that the believing party is not
to initiate any steps which will terminate the
marriage union, but must remain passive, while
all active proceedings are expected to emanate
fromn the other side. Thus should the unbelieving
husband or wife be content to dwell with the
Christian partner, the latter may not put the other
away. This is the first case that is noticed, and it
was doubtless of frequent occurrence. Here Paul
meets a feeling to which the new faith itself might
give rise. So great was the transition from the
foul worship of impure divinities to the faith in
Christ and in a God of holiness, that close connection with a heathen, however ignorantly or innocently begun, might seem unclean and unhallowed.
To this he replies, without mentioning the feeling
itself, that the heathen partner is hallowed by the
believing one, that marriage and the marriage bed
preserve their sanctity because one of the parties
is a consecrated person. Otherwise the children
would be unclean, whereas all admit that they




IN THE NEW TESTAMENT.         75
are consecrated. Without stopping to discuss the
Apostle's meaning here, it is enough if we say that
he draws a broad line between a family where
both parents are heathen and another where one
is a Christian.
But the heathen, whose husband or wife had become a Christian convert, might be soured or
alienated for that very reason, and might insist on
terminating the union.  The decision in this
second case is expressed in these words: " But if
the unbelieving depart let him depart."  That is,
if he separates himself from his Christian partner
(or is in the act of separating himself, as some explain the tense), let him take his course unhindered. A believer has not by his profession been
brought into slavery, is not under bondage in such
cases, is not subjected to the obligation of keeping
up the marriage relation and of preventing the
disruption by active measures of his own. Such
bondage would subject the believer to a state of
warfare, but God's call to him, when he invites
him into the Gospel, is in the form of peace.
And moreover let not the believing party think
that he ought to take on him this painful obligation in order to convert the heathen partner.
For it is wholly uncertain whether by living with
such a partner, when he is bent on separation,
any such result will be attained.*
* The clause," but God has called us to peace, " is difficult.
We have given the antithesis, represented by de, as pointing to




7DOCTRINE OF DIVORCE
This is an important passage, as furnishing the
authority, if there be any in the scripture, for divorce with remarriage on the ground of desertion.
In rendering its meaning, as we have done, we
have unavoidably shown a certain amount of bias
on that question, because otherwise the connection
of thought could      not easily be presented.       We
will now return on our steps, glancing as briefly
as possible at the leading interpretations of verses
a state of strife which Paul only hints at, for it seems to us to be
implied in the word Xopi;eral.  The expression " in peace,'
as the original is literally rendered, many make equivalent with
into peace. Winer teaches us that Paul never uses iv as equivalent to Ei, and explains it, " so as to be in peace," which is really
admitting what he condemns. De Wette follows him. Harless
and Meyer give the solution adopted in our paraphrase:-" God
has called us in peace," i. e. God's call has come to us in the
ethical form of peace. The words, "for what knowest thouwhether," were taken by nearly all the older commentators as
implying the possibility that by living together with the heathen
the Christian might save him or her. It would then be a dissuasive against separation. But logic will not bend to this rendering.  We ought to have for it a different context. It would
require ri di instead of ri yap, and the words scarcely admit of
the version, " what do you know but that," or " how do you know
that you will not." For an attempt of Tholuck to defend this
way of understanding the interrogation, see his Bergpred,
fourth edition, p. 252. Billroth, Ruckert, Olshausen take it in
the same way. It would strengthen our side to follow them,
but this seems to us an inadmissible construction.  Nor can
verse 17 weigh in opposition. The condition in which the
believer actually is, is one of desertion, not one of cohabitation
with a husband or wife. Let him or her then remain in this
state of desertion. The case is like that mentioned in verse 27.




IN THE NEW TESTAMENT.              77
15 and 16, then looking again at the connection, and
finally, endeavoring to discover how the decisions
of the Apostle can be brought into harmony with
those of the Lord.
The greater part of the commentators, although
by no means all, understand oub e6o6o)r at, " is not
under bondage," to deny the necessity of remaining unmarried, and infer from    it the lawfulness
of taking another husband or wife under the conditions specified by the Apostle.    The Catholic
Church, so strict in the matter of divorce, allows,
and that in good part on the authority of this passage, both divorce and second marriage to a Christian separated from a heathen by the agency of
the latter.*' The prevailing view among the Protestants also has drawn a justification of divorce
in cases of malicious desertion, whether the guilty
party be a heathen or not, from this commandment
of the Apostle.    To some the bondage which
the Apostle speaks of is that of remaining unmarried, or the alternative obligation of either
remaining unmarried or being reconciled, so that
the duty, where one of the parties is a heathen, is
just the opposite of that prescribed in verse 11.
* We may have to revert to this again; at present it is enough
to say that in passages of the Canon Law relating to this subject
(Decret. Grat., ii.,Caus. xxviii., Qu. 2, C. 2, and Decretals, iv.,
19, de divortiis, Cap. 7), this test is cited as the authority. It
should be added, however, that the opinion entertained in the
ancient church concerning heathen marriage facilitated this allowance of remarriage where the parties had been heathen.




78           DOCTRINE OF DIVORCE
Others draw this right of remarriage as an inference from the scope of the passage, rather
than rest it upon any particular expression. And
the question may be asked with some force, why,
if remarriage is not allowed, does the Apostle consider his commandment to be a new one. Is all
the difference between the case in verse 11, and
that in verse 15, that in the former the separated
party must, and in the latter need not be reconciled to the other?
WIe will first look at the meaning of o 6des6o6wrat.
The verb has been compared by some with 6d6srat,
which in several places is made use of by the
Apostle to denote the marriage bond (verses 27,
39; Rom. vii. 2). But in truth there is no connection between the two words. The one denotes
an obligation merely, and the other a severe or
painful obligation, an unfree subjection resembling
that of slavery. It might without question be
used on the proper occasion by an author who
wished to express a harsh necessity of remaining
unmarried. But the sense would lie not in the
word, but in the context.
What then is the bondage which the context
here points out? Meyer correctly answers that
ob 48e6oSUorat does not deny the obligation to remain unmarried, as Grotius and others assert, but
the necessity of continuing the married state;
and so he remarks that the place gives no express
answer to the question whether Paul concedes re



IN THE NEW TESTAMENT.         79
marriage to the Christian party. Stanley on the
passage remarks in the same strain, "that this is
not so much a permission of separation as an assertion that, if on other grounds a separation has
taken place, there is no obligation on the Christian partner to insist on a union."  So, too, De
Wette says, that " the positive side of this notion
[i. e. of the notion of separation, viz.: remarriage]
is certainly not brought forward by the Apostle,
although it may be supplied by correct inference."
Nor can we forbear to introduce a passage from
Neander's commentary on Corinth. vii., for which
our readers, we are sure, will thank us. "e Protestant exegesis," he says, "has understood the
Apostle to the effect that in such a case the
Christian party would be authorized to enter into
a new marriage. But this is not at all contained
in the words. The Apostle simply means, that in
things pertaining to religious conviction no one
ought to be the slave of another, that the Christian partner cannot be forced to stay with the
heathen, if the latter will not allow to the other
the exercise of his religious convictions. In sucl
circumstances a separation can be allowed, but of
an allowance to contract another marriage there
is not a word here said."  And we close our citation of authorities with an extract from Tholuck's
exposition of the Sermon on the Mount (p. 233,
3d ed.). " The words' is not in bondage in such
cases," says he " have a direct reference only to




80           DOCTRINE OF DIVORCE
living together, —and in verses 10, 11, ypoieoOat
is so used that with it reconciliation is thought of
as still possible."  And in the greatly altered 4th
edition (p. 253), he expresses his opinion that " we
can not find in the case of malicious desertion so
called, which the Apostle adduces, a justification
of remarriage."
With this view the Apostle's reasons agree, and
show most clearly that whether he regarded remarriage in such cases as lawful or not, he can
here have had no thought of it in his mind. The
first of these reasons is that a compulsory cohabitation with an unbeliever, who disturbs his partner's peace, is not in accordance with the call of
the Gospel.  Here then reluctant living with a
quarrelsome heathen, not any ultimate step such
as remarriage, was in the Apostle's mind.  The
other reason is that the probability of converting
such a heathen partner, so bent on separation, is
not so great as to make remaining with him
against his will a Christian duty. Here again
nothing but dwelling in marriage relations with
the heathen husband or wife is thought of. The
Apostle's mind goes no further than that point, if
we have fairly represented his train of thought,
as we have tried to do in harmony with the
opinions of the best modern interpreters. The
Apostle then says simply this: "if the heathen is
bent on separation, let him take his course. You
are permitted to suffer this in order to preserve




IN THE NEW TESTAMENT.         81
your peace. You are not bound to stay with him
to secure his conversion, for this is an uncertain
thing."
But, it maybe asked, whly did the Apostle tlinkl
it worth his while to give a decision in such cases,
if the decision amounts only to a license of noncohabitation, without granting the power of remarriage? And does not the contrast of the cases
in verses 11 and 15, show that the obligation
required in the former verse-either to remain unmarried or to be reconciled-had no existence in
the case of which the latter verse treats; that
here. in fact, the believer is neither bound to
remain unmarried nor to be reconciled to the infidel partner.
To the first of these fair objections we answer
that a new case of duty, unknown among the
members of a believing community gathered out
of the Jews, came up where a church was gathered
in gentile lands. Some there were who in their
abhorrence of false gods and of idolatrous worship
regarded an unconverted husband or wife as unclean; the contamination spread over the family
relations, and a wife, for instance, looked with inward horror on a husband who sacrificed to Zeus
or to Aphrodite, although he had been kind to
her, and had no thought of separation. Others
there were, whose heathen husbands, after interfering with their dearest rights and hopes, determined to separate from  them, but who were
4*




82          DOCTRINE OF DIVORCE
morbidly conscientious lest by consenting to such
separation they should hinder the conversion of
the unbeliever. Was it not well worth the Apostle's while to tell persons so situated how they
ought to act?
To the other objection we answer that it would
be fair to infer that neither of the injunctions of
the eleventh verse can be applied to the fifteenth,
unless it could be shown, as we seem to ourselves
to have shown, that the context proved the
Apostle to have had no thought of remarriage in
his mind.
To this we may add that there is a certain improbability, inherent in the case itself, that the
Apostle would have given such a permission.
The word %wpie-raL denotes any separation, whether
attended with a formal statement of a purpose of
divorce or not, in other words, it includes divorce
and desertion. And the exemption from "bondage" began to exist as soon as the separation
commenced. Now would the Apostle have given
a license greater than any law of the loosest
Christian State gives, when he must have been
cognizant of instances in which husbands or wives,
who had thus deserted their partners, had become
converts within a few months, and were thus ready
to be reconciled and to live in Christian wedlock?
Would he not have added some qualification or
advised some delay?
The view here presented brings the precepts of




IN THE NEW TESTAMENT.          83
our Lord and that of the Apostle into harmony,
or at least shows that there is no necessary contradiction between them.  The Christian wife or
husband must accept as a fact what the unbelieving partner has done, but the marriage, so far as
the Apostle lets his opinion be known, may still
have been indissoluble, and the injured believer
must remain in a state of desertion. All other
ways of reconciliation, which proceed on the assumption that Paul permitted remarriage, are
failures. Will any one say with De Wette in his
Commentary, that both Christ and Paul permit
remarriage, when the parties are separated in fact?
But Christ, at the most, only allows it in cases of
adultery, and if Paul allows it in other cases he
enlarges the rule. To say that Christ, when he
said, " except on account of fornication," only gave
a sample of several exceptions which he regarded
as valid, is to trifle witll his words, and to leave
the door open for any degree of laxness. Will it
be said, as Meyer says, that Christ did not have
mixed marriages in his mind, but only marriages
within his church? We reply that he laid down
a universal rule, and gave a reason of general application for his rule. If those Pharisees whom
he addressed in Matthew, chap. xix., admitted the
force of wihat he said, they would be bound to
take it as the rule of their life, even if they could
not admit his claims to be the Messiah. Why
should the Christian partner in a marriage be




84           DOCTRINE OF DIVORCE
released from obeying a command of his Lord,
because the heathen would not submit to it? Or
will it be said that Paul, and perhaps Christ, did
not regard heathen marriage as marriage in the
proper sense, but only as a kind of conWtuberni'umz
to which the laws that govern Christian marriage
were inapplicable. But the Apostle nowhere indicates that he holds any such opinion. Marriage
with a heathen was, indeed, in his view a violation of Christian duty for one who was already a
believer (2 Cor. vi. 14); but marriage contracted
in a state of heathenism was a condition in which
the heathen was called the husband or wife of the
converted partner, in which the Christian was to
remain if the heathen did not dissolve the union,
in which the unbeliever himiself partook of a kind
of sanctity and the children were holy. To apply the rules of Ezra's time to the times of the
kingdom of God, to require that the idolater must
be separated from the believer in the near relations of life was not in accordance with Paul's
strain of thinking. Marriage among the heathen,
it is true, was far from conforming to the ideal
presented to us in the earlier scriptures, where the
man is conceived of as cleaving to his wife so
closely as to bring her nearer to him than father or
mnother, and as becoming one flesh with her. But
there was some purity left, there were examples
of illustrious conjugal fidelity, and there were vices
against marriage that " were not so much aR




IN THE NEW TESTAMIENT.         85
named among the heathen."    If on the whole it
fell far short of the ideal, so too in a heathen family
the parental relation failed to come up to the ideal,
and yet the Apostle, without doubt,regarded that as!
the source of important and permanent obligations;
and if he bade bond-servants to treat unbelieving
masters with all honor (1 Tim. vi. 1), much more
would he have recognized the duties of the natural relation of the child to the unbelieving parent.
The result then to which this exposition has
brought us, is that Paul advances beyond our
Lord's position in a single particular,-in conceiving of, and to a certain degree, authorizing separation without license of remarriage.  That he
goes so far is clearly shown by verse 11; that this
leads him into any departure from   our Lord's
principles cannot, we think, be made to appear.
It will be seen in another place that the main
stream of Protestant opinion runs in a direction
contrary to that which we have pursued in regard
to the sense of the Pauline passage in question,
although we have the support of several of the
ablest modern commentators.    It will be seen
also, that this opinion, not confining the Apostle's
words within the limits of marriages where one of
the parties was a heathen, but extending his principle so as to include all cases of desertion, has opened a wide door for divorce in Protestant countries.'
* For certain passages of the New Testament having a pos
sible bearing on divorce, see note 1, in the Appendix.




86  LA W OF DIVORCE IN THE ROM'IAN EMPIRE,
CHAPTER        III.
LAW OF DIVORCE IN THE ROMAN EMPIRE, AND IN
TIE CHRISTIAN CHURCH.
IN the last chapter we attempted to set forth
and explain the declaration of Christ and of the
Apostle to the Gentiles on the subject of divorce.
Our present object is to give a compendious view
of the law of divorce in the Roman empire down
to the time of Justinian, and of Christian opinion until it became the canonical law of the Catholic Church.
In the first chapter of our essay on divorce, we
were able to do little more than allude to the legislation of Augustus, by which an effort was made to
check some of the leading social evils of Rome, and
which remained on the whole, ever afterward, the
groundwork of Roman legislation respecting marriage. The emperor and his advisers were, witlout
doubt, alarmed by the wide-spread violations oftlhe
rights of marriage, but to improve morals was not
the only end they had in view. Population was
beginning to decline; young men and old were
averse to the marriage state, rather choosing to




AND IN THE CHEISTIAN CIIURCH.     87
keep mistresses than to be encumbered with the
expensive cares, and tried by tie vexations of a
family; and persons of the higher ranks preferred
in some instances to marry freedwomen rather
than the proud and costly descendants of the aristocracy.  Hence it was enacted in these Julian
laws that an unmarried man between twenty and
sixty, and an unmarried woman or widow under
fifty, should be debarred from sharing in inheritances or legacies, except where the testator was a
very near relative. And, on the other hand, married men, especially those who had three children,
enjoyed special privileges and honors. They had
better seats than others at the public shows, they
had advantages in obtaining office, and took precedence of their colleagues who had no such merit;
they were exempted from certain burdens, and enjoyed certain rights of inheritance from which
others were excluded; they incurred a milder penalty, when they had committed offenses calling for
confiscation of property.  Married wonen, too,
who had borne three childiren, or, if freedwomen,
four, had special privileges of their own in cases
of inheritance, and were exempted from tutelage.
It was enacted, also, to keep up the respectability
of senatorial families, that senators and their sons
should not marry freedwomen, play-actresses, or
women of ambiguous character. Other men could
ally themselves to freedwomen, and, as we have
seen, when a patron contracted such a marriage,




88   LAW   OF DIVORCE IN THE ROMAN EMPIRE,
his wife, being his former slave, could not separate herself from him without his consent.
A  very revolting part of the legislation of Augustus concerning marriage, was the legalizing of
concubinage, as a state between lawful marriage
and mere sexual intercourse.       This was done, it
would seem, in the hope of increasing population.
This condition of life began and ended without
formal notice or agreement; and the children had
no legal father but only a mother. They therefore were incapable of being their fathers' heirs,
but it would naturally happen that bequests would
be made to them.      Restrictions were put on the
validity of legacies of this sort, by the early Christian emperors, on moral grounds, but Justinian
took a milder course, and the way was open for
the legitimation of such children.      This relation
between the sexes seems to have been very common under the empire, so that even free women
of the better classes were found willing to take
the place of concubines.* To the man it brought,
* A startling proof of this is given in the newly discovered
work of Hippolytus, ix., ~ 12, p. 460, ed. Duncker. He charges
Calistus, bishop of Rome, not only with ordaining men who had
been married twice or thrice, and with treating a clergyman who
had married after ordination as thoughl he had not sinned, but
with allowing women of rank, who were believers, to have a male
concubine, slave or free, as they chose. Then, adds he, women
called believers, began to secure themselves against having children by medicines procuring abortion, because, owing to their
family connection and great property, they did not wish to have




AND m THE CHRISTIAN CHURCH.         89
as being a legal relation, no loss of respectability,
and it was held to be more seemly for the patron
to be united to his freedwoman by this tie than by
that of a wife.
The legislation of Augustus, while it imposed
penalties on adultery, and developed the principle
of the retention of dower, left divorce as free as
it was before. It could be brought about by common consent, or by action of one of the parties.  Such action could be grounded on adultery
of the other party,-and indeed the husband was
now bound to put away a guilty wife-on mAores
leviores or more trifling offenses against the proprieties of the marriage relation, on various kinds
of physical inability to fulfil the ends of marriage,
among which madness without lucid intervals
may be numbered, and on captivity. Of the incapacity of a freedwoman married to her patron to
divorce herself from him we have before spoken. Of
the effects of divorce on the speedier restitution of
the dos or its partial retention, and of the trial of conduct by which the pecuniary liabilities of the two
parties were determined we have no room to speak.
It has been maintained, we believe, that facility
of divorce is necessary to prevent infractions of
a child by a slave or a low freeman. This Calistus was bishop
in A. D. 217-221. Free women of the better classes were required on entering into this condition of life to make a testatio or
formal notice of their intentions, and were liable otherwise to the
penalties pertaining to stuprum.




90   LAW OF DIVORCE IN THE ROMAN EMPIRE,
matrimonial rights, but under the empire, although neither law nor opinion set up any strong
barriers against divorce, adultery was exceedingly
frequent. This appears from the strong assertions
of poets and historians, and it is confirmed by
facts. The crime burst out like a plague in the
very highest classes.  The grand-niece of the Emperor Augustus, Aquilia and Claudia Pulchra,
members of distinguished families, Aemilia Lepida,
wife of Drusus, who killed herself before trial, the
sister of Caligula, his wife Livia Orestilla, Julia,
daughter of Germanicus and niece of the Emperor
Claudius,-these are examples from the history of
the first four emperors of ladies tried and punished
for-this crime.*  At the end of the second century
an emperor of strictness and energy-Septimius
Severus-endeavored to give effect to the laws
against adultery, and Dion Cassius says, that,
when he himself was consul, he found when looking over the register of cases that three thousand
processes for adultery were instituted in this reign,
but the war against manners was ineffectual, and
the emperor, getting tired of his efforts on behalf
of morality, stopped the prosecutions.t
The penalties for adultery: continued until the
* See Rein's Criminalrecht, 850-856.
f Dion Cass., 66, ~ 16.: It may need to be said that only a crime to which a married
woman was a party could be called adulterium. The Romans
held that the jus tori pertained to the husband. He could not
commit this crime against his wife.




AND IN THE CHRISTIAN CHURCH.     91
time of the Christian emperors, much the same as
they had been constituted by the laws of Augustus.  The principal penalties we have already
mentioned as being relegation and a loss of property.  The woman convicted of the crime lost
half her dower, and a third of her goods; and from
her paramour half his property was taken away.
They were banished to different islands. Besides
these leading penalties the woman lost her right
of marrying again, although she might sink to
the condition of a concubine. Sle could no longer wear the matron's stole nor appear as a witness
in the courts. The man also lost the right of testimony, and, if a soldier, was shut out from the
army. The Christian emperors increased the severity of punishment for this offense, following
herein, it would seem, the example of some of
their predecessors, as well as influenced by the
spirit of Christian morality.  Constantine the
Great imposed death with confiscation of goods
on the adulterer. His sons punished the adulteress
with burning and took away from her paramour
the privilege of appeal, but this seems to have
been only a case of extraordinary and temporary
legislation. Under Valentinian the guilty woman
was again sentenced to death. Justinian's legislation shut up the woman in a cloister, making it
illegal for her husband to take her back within
two years. If the parties were not reconciled at
the end of this term the marriage was dissolved,




92  LAW OF DIVORCE IN THE ROMAN EMPIRE,
and the woman's imprisonment in the cloister was
perpetual.  As for the offending man, he was visited with death, but not with confiscation of goods,
if he had near relatives in the direct line."'
The legislation of Augustus in regard to divorce
remained nearly unaltered until the times of Constantine. It was, however, a very feeble barrier
against the disposition to break the marriage tie,
and it read no moral lesson on the sanctity of
that union. For, in the first place, 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 (poens vinceulo
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,
* See Rein, u. s., 848-852, and Novell., 134, ~ 10, which renews Constantine's legislation.




AND IN THE CHRISTIANE CHURCH,        93
(pacta ne liceret divertere non valere).*  In the
second place, the laws affected but a small part of
the population of Rome. Slaves could contract
no marriage. Concubinage became exceedingly
common, it is probable, among the lower classes,
and to this condition the law of divorce did not
apply. The limited range of the law seems to be
shown by the fact that for the legal formalities the
presence of a freedman of the divorcing party was
necessary.  It is true that a freedman of a near
relative was held to be essentially a freedman of the
party giving the notice, but how many thousands
of married people, or at least of Romans living together as man and wife there must have been, who
could not provide a freedman for this formality.
Did these classes furnish no cases of divorce, or
were they overlooked by the law?  We must conclude that they were never legally married, or that
the law was intended to preserve a sort of decency
of life in the upper classes, while the lower freemen were left to do as they pleased.  Such was
the freedom of divorce when it took place by the
consent of both parties. It was equally free, a few
cases only excepted,t where one of the parties terminated the union without the consent of the
* Paulus in Dig. xlv., 1, 134; Cod. viii., 39, 1. 2, de inutil. stip.
f These were adultery,-where a man was obliged on penalty to
dismiss his guilty wife;-the case of a freedwoman married to her
patron who could not separate from him although he might from
her; the captivity or insanity or certain bodily defects of one of
the parties.




94  LAW OF DIVORCE IN THE ROMAN EMPIRE,
other, 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, le 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 jidiciubnm 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 whatif
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.
It will not be strange if examples of the infamous
freedom of divorce continued to occur through
this period, until the first Christian emperor ascended the throne. Caligula sent away his wife
and married another, whom he took from her husband on the wedding day, then after two months
banished her from the city and united himself to
a third, whom he dismissed on account of barrenness. Claudius repudiated four wives, and the
fifth by taking poison escaped a similar lot. Nero
and Domitian supply us with instances of divorce.




AND IN THE CHRISTIAN CHURCH.        95
Elagabalus got rid of his first wife because she
had a mole on her body, then, married a vestal
virgin-an unlawful thing-and then after sending away a third, fourth, and fifth, returned to the
vestal. But the doings of the miserable Carinus
(about 284 A. D.), who married and divorced
nine wives-pulzss 8plerisqzue p)raegynantibus, as
the historian Vopiscus writes-are not easily
matched, unless by the feats of those Roman ladies
of whom Juvenal says, (vi. 229):
" Sic fiunt octo mariti
Quinque per auctumnos;
or that other in Martial's epigram, (vi. 7):
" Aut minus, aut certe non plus tricesima lux est
Et nubit decimojam Thelesina viro."
Martial atones for many bad things by the words
which follow:
" Quae nubit toties, non nubit, adultera lege est."
But even Christian emperors practiced divorce,
either on political grounds, as -Honorius, or for
private reasons, as Valentinian I. and Theodosius
II., the latter because his sister and his wife were
at variance.
With Constantine begins a strife between the
stiffness of the principles of Roman law and the
propensities of corrupt society on the one hand
and the interests of religion and morality on the
other. The vicissitudes - of the contest show how
hard it is to introduce legislation founded on
hiher principles into a demoralized society, half




96  LAW OF DIVORCE IN THE ROMAN EMPIRE,
heathenish, and with unbroken precedents in
favor of looseness in the marriage relations. Marriage had been a mere civil contract: the halfmeasures, the indirect ways of legislation, the ease
with which they were overturned, from this point
of time onward for more than two centuries,
show that the world was still half, or more than
half pagan. Christianity was doing something on
behalf of humanity, something on behalf of justice, something on behalf of the sanctity of marriage throughout society, but we believe also that
it could not have given new life to Rome, that
when it shattered and dissolved the empire, this
was a beneficent work, necessary for the greater
sway of Christian ideas in future ages. It was
the stone that was cut out without hands, and it
smote the image upon his feet of iron and clay
and brake them to pieces.
Neither Constantine, nor any of his successors
before Justinian, attempted to interfere with divorces by consent of the parties. I-is legislation
went no farther than to fix the cases in which the
parties could without fault separate from one another. There were three for the woman, namely
when the man was a homicide, a poisoner, or a
violator of sepulchers; and three for the man,
namely when the woman was an adulteress, a
poisoner, or a procuress. This enactment belongs
to the year 331. In 337 the wife had permission
to put away her husband for the fourth reason,




AND IN THE CHRISTIAN CHURCH.     97
that he, being in the army, had given her no news
of himself for four years.
If either of the married partners separated from
the other without the justification furnished by
the above-mentioned crimes, they were visited
with penalties of a severity unknown before in
similar offenses to Roman law. The wife who
forsook her husband lost her dower " to the very
last mite," and was banished to an island. The
husband who sent away his wife without cause
was bound to restore her all her dower at once,
and was forbidden to marry the second time.
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. Of Constantine's penalties for adultery we have already spoken.
We add, as shewing the spirit of legislation
under Constantine, that he struck a side blow at
concubinage by granting legitimacy to children
already born in that kind of union, whose parents
should contract legitimate marriage, and also by
forbidding fathers to give any thing to such children or to their mothers in the way of donation
or testament. But this last law was overturned
by Valentinian I. and was not restored afterward
in its full severity until the Emperor Leo, the philosopher (in Cent. 9), abolished concubinage in
the East. Justinian extended the principle of
legitimation introduced by Constantine to the




9S  LAW OF DIVORCE IN THE ROMAN EMPIRE,
children of concubinage in general. Such a tough
life did this degraded caricature of marriage have,
although abhorred by all the Christians in the
world.
The divorce laws of Constantine were abolished
by Julian (A..  363), who brought things back,
as far as he could, into their old pagan channel.
From that time for about sixty years there seems
to have been no change in the law. Honorius, in
A. D. 421, returned in a degree to the principles
of Constantine's legislation, but united with them
the old principle of Roman law, which Julian
had recalled, of a one-sided separation for lighter
faults, with retention of more or less of the dower.
Theodosius II. in 439 abrogated earlier ordinances
-probably those of Honorius-and after ten
years of experiment, in which divorces had alarmingly increased, gave out another law, which laid
down the causes for which one party might lawfilly separate from the other. The woman was
authorized to do this if the man had been guilty
of certain crimes, among which are murder, poi.
soning, 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




AND IN THE CHRISTIAN CHURCH.            99
house, or of visiting the theater, circus, or other
public place against his will. Both the laws of
HIonorius and those of Theodosius had their penalties for unlawful divorce which we cannot stop
to notice.
We go down to Justinian who, after tinkering
on various occasions with this title of the laws,
promulgated an important law in 536 (Novell.
xxii.), and another in 542 (Novell. cxvii.).  Of the
last of these alone will our limits allow us to
speak.   This statute abolished for the first time
divorce ex conmmuniT consensui, with the single
exception that the married pair might give each
other leave to go into a convent or take a vow of
chastity. This was a most important step, and
no Christian   emperor had ventured to take it,
although the contrary has, we believe, been asserted. As late as Anastasius, the second emperor of the East before Justinian, there seems to
be no scruple about divorces by consent of the
parties, and a woman so divorced is allowed to
marry after one year.*    This statute of Justinian
* This in fact appears from the law itself (Novel. 117, ~ 10),
" Since many hitherto have dissolved marriage by agreement,
we allow this to take place in no case hereafter," [except on
account of chastity].-Comp. Cod. v. 17, 1. 9.
It is remarkable that until the Novella 134 was issued in A. D.
556, there was no penalty attached to divorce ex conmuni consensu. Now the penalty for both parties was, to be shut up in a
monastery and to lose their property. But if persons attempting
to separate from one another in this way recalled their act be



100 LAW OF DIVORCE IN THE ROMAN EMPIRE,
again defined the justifiable causes of divorce,
which were nearly the same as those that the law
of Theodosius had laid down.    In these cases the
culpable party sustained a pecuniary loss by the
separation, and might suffer also for his or her
crime. Besides this kind of divorces, another,
called divorce bona grcatia, was allowed in special
cases due to no fault of either party.  The cases
were impotence, captivity, and the choice of a
monastic life —not by both consorts, which was
provided for in another chapter of the law, but
by either the wife or the husband.   Lastly, there
might be divorce without good reasons (citra ontnem causacm), which was visited with special punishments, especially with pecuniary loss.*
Some of the later laws prohibited remarriage
to the party whose faults furnished ground for the
divorce, or who dissolved the union without reason.   The later legislation is also noticeable for
another principle-the prohibition of marriage to
a culpable party for a certain period.
This imperfect sketch is sufficient, perhaps, to
present to our readers the leading features of
divorce legislation under the empire. As a summing up of what has been said we remark:
fore going into the monastery, they might escape from these penalties. Agents in the transaction, such as notaries, were to be
corporally punished and sent into exile.-Justin, in Novel 140
(A. D. 566), restored divorce by common consent.
* See note 2 to chapter 3 in the Appendix.




AND IN THE CHRISTIAN CIIEURCH.  101
1. That divorce ex commani consenseu kept its
ground all the way down to Justinian, and was
attended with liberty of remarriage.
2. That divorce on account of adultery affected
the dower and other property, and that the punishment of adultery increased in severity under
the Christian emperors.
3. That divorce for greater or less fault of one
of the parties was visited on the faulty party in
the shape of retention of dower from the woman
in whole or in part, and of payment of the dower
in whole or in part by the man. At length some
restrictions were put on the remarriage of the
culpable partner.
4. Much the same may be said of groundless
divorce in its consequences to the party which
initiated it.
5. The Roman law during the empire did not
to any extent prohibit divorce, but only made its
consequences unpleasant; nor did it, except in a
few cases, prohibit remarriage.
6. We see then that the influence of Christian
views, which were already matured and vigorous
in a theory of marriage, produced but little influence in changing the traditional principles of
Roman law on this important department of the
marriage relations.
But what were these Christian views in regard
to divorce, which for a time conflicted with the
principles of Roman law, and at length gained a




102 LAW OF DIVORCE IN THE ROMAN EMPIRE,
victory over them? To understand fully the state
of Christian opinion in this respect we ought to
trace the doctrine of the church on marriage in
general, from  its beginnings derived from  the
Gospel or some other source, until it grew into a
vast body of canonical law. But we have no room
for such an exposition. We can only mention the
sources to which this doctrine is to be referred.
Of these there were two, a new conviction of the
sanctity and closeness of the marriage relation,
and a feeling that marriage, though a good and
lawful state, was not the best or highest form of
life.  The conviction was founded on Christ's
teachings and other passages in the New Testament, and on the spirit of Christianity which
harmonized entirely with express declarations.
Mlarriage now was God's ordinance, and at length
was grouped together with some other important
religious transactions of life in a class not very
logically coherent, to wAhich the name of sacraments was attached. The beautiful analogy traced
by the apostle between Christ and the church on
the one hand and the husband and wife on the
other helped to secure for marriage a place among
the sacraments.
But there grew up also at an early age of the
church an opinion that a single life,-a life of
chastity as it was called, just as many in the
United States call abstinence from spirituous drinks
a life of temperance, was best for the interests of




AND IN THE CHRISTIAN CHURCII.    103
the soul. This opinion was partly due to Gnostic
or ascetic doctrines that crept in, partly it was a
reaction against the deplorable licentiousness of
heathenism, and it found a degree of support in
passages of Scripture.  Such were our Lord's
words in Matthew xix. 12, several passages of
Paul in 1 Cor. vii., and the place in Revelations,
xiv. 4, where " virgins," understood of men, was
supposed to commend celibacy. But the Fathers,
as a body, held marriage in honor, as an institution
of God. A Tertullian, after he slipped into Mlontanism, almost deserted this position, when he inveighed against second marriage as a sin. A
Jerome writing against Jovinian, who had asserted
that virgins, widows and wives, had equal merit,
might say, " Si bonum est mulierem non tangere,
malum est ergo tangere.  Si autem mnalum est et
ignoscitur, ideo conceditur, ne malo quid deterins
fiat."  But his logic came back to him when he
grew cool, and in general the doctrine that marriage was an evil was left for heretics animated by
an evil spirit " forbidding to marry.'
To these sources, in whole or in part, must be
ascribed the encouragement given to vows of virginity, to professions of widowhood, and to a solitary or social life of abstinence from marriage.
Hence too the discouragement, in the case of laymen, of a marriage subsequent to the first,
toward which such dislike was sornetimes felt,
that a Father of the second century could call




104 LAW OF DIVORCE IN THE ROMAN EMPIItE
second marriages,  specious adultery," and fourth
marriages, together with third in some cases, were
afterward prohibited by law in the Greek empire.
Hence also the early ban put on second marriages
of the clergy.  Hence the long struggle against a
married clergy, which in the western church was
so far successful at length as to separate a married
man wishing to become a priest from his wife, to
make marriages after ordination void and punishable with a loss of office, and to extend the prohibition of them to all but the lowest servants of
the church.*   Hence, finally, the hindrances to
marriage from blood and affinity, which reached
in their operation to a wide circle of relations.
The doctrine of the ancient church on divorce
was tolerably well established long before marriage came to be regarded as a sacrament in the
more modern sense of that term. At the same
time   the  sacramental  character attached   to
marriage strengthened the view which Scripture
authorized of its fixed and indissoluble nature.
Even death was held by some, although never by
the prevalent opinion, to be no dissolution of the
bond. The original source of the doctrine was of
course the declarations in the gospel, which were
honestly and laboriously interpreted with a pretty
* Much as Jerome disparaged marriage, he freely admitted, as
did most others, that any number of successive marriages was
not unlawful. " Non damno bigamos, imo nec trigamos et si dici
potest octagamos." Ad Pammach. Apologet. c. Jovin.




AND IN THE CHRISTIAN CHIURCH.    105
uniform result long before the doctrine of the
sacraments was developed. This doctrine did not
first teach the unlawfulness of dissolving the
marriage tie, but took that view from the Scriptures and from the firm prevalent opinion already
spread through the church. Afterward, however,
the sacramental nature of marriage without doubt
acted back to give more of rigor to marriage and
to impede its dissolution. With this and before
this the Christian spirit of forgiveness had an important influence on opinion in regard to divorce.
The high sin of either party against the union
might be repented of and God could forgive it.
Why should not the parties be reconciled also?
But for this it was necessary that they should remain unmarried. When forgiveness and restorations ad integrurn became canonically lawful, there
was naturally less need of relaxation in favor of a
final separation with liberty of remarriage. These
three then, Christ's law in the Gospel and as explained by Paul, the sacramental quality of marriage, the Christian duty of forgiveness, gave the
shape to the doctrine of divorce in the ancient
church. If the marriage had not been a Christian
one, that is, had had no sacramental character, a
complete divorce might take effect in the following cases, and in these only. In the first place
an infidel converted to Christianity was to put
away all his wives but the first. As however in
this instance there was no true marriage according
5*




106 LAW OF DIVORCE IN THE ROMAN EMPIRE,
to Christian doctrine with any but the first wife,
there was no real divorce in ceasing to have any
relation to the others, who were merely concubines.
Secondly, a converted infidel, who had put away
his wife and married another, was required to take
back again the first, even if she should have contracted a second marriage. Here again there was
no true divorce, for the divorce and remarriage of
both the parties was regarded as unlawful. _TzirdlJ, if an infidel became a convert to Christianity,
and his or her married partner was unwilling to
keep up the marriage relation on any terms, or at
least not without blaspheming God or leading the
other into mortal sin, the Christian might be separated from the infidel so as to contract a new marriage.@  This decision of the church was based on an
interpretation of 1 Cor. vii. 15, concerning which
we refer our readers to what was said in our last
chapter.  And here only have we an instance of
true divorce. All other cases, such as marriage to
a Jew of a person already a Christian, marriage
of a Catholic to a heretic, or schismatic, either
rendered the marriage void ab initio-which is not
divorce in the proper sense-or merely justified a
separation a rzensa et toro, if even that were
allowable. t
* The opinion of Innocent III. in the Decretals of Gregory IX.,
~~ 7, 8, de divortiis iv. 19, may be consulted here in lieu of every
thing else.
f In the Greek church, marriage between the orthodox and




AND IN THE CHRISTIAN CHUITCH..            107
A very early and important passage on divorce
is contained in the Shepherd of Hermas (ii. Mandat. 4, ~ 1).   We will give it in English.       " And
I said to him, Master, let me ask thee a few things.
Say on, says he, and I said, If any one had a wife
faithful in the Lord, and found her in adultery,
would tle man sin if he lived with her?        And lie
said to me, As long     as he is ignorant, the man is
without crime, if he lives with       her.   But if the
man had known that his wife had offended, and
the woman had not repented, and if she remains
in her fornication, and the man lives with her, he
will be guilty of her sill and partaker of her adultery.  And I said to him, What then if the woman
persist in her vice.   And he said, Let the man put
her away, and stay by himself, [i. e. remain uinheretics was forbidden and declared null, although in Russia
since 1719 members of the established church may marry members of other confessions. In the Latin church marriage with
infidels or Jews has long been considered invalid. But for Catholics and baptized Protestants to intermarry is allowed, if they
pledge themselves to educate the children in the Roman faith.
Otherwise the priest may not celebrate the nuptials. But in
modern times, even if such guaranties should not be given by the
parties, the Catholic pastor may be present and record the marriage without blessing it: a singular compromise, as if the church
were uncertain whether the transaction were concubinage or not.
And in the Netherlands, since the papacy of Benedict XIV.
(174G-1758), as well as in the western Prussian provinces since
Pius VIII. (1829 onward), mixed marriages, celebrated not according to the form prescribed by the Council of Trent, but in
one sanctioned by the law of thie land, are regarded as real valid
unions. (Walter, Kirchenr., ~~ 300, 318).




108 LAW   OF DIVORCE IN THE ROMAN EMPIRE,
married.] But if he put away his wife and take
another, he too commits adultery himself. And I
said to him, What if a woman, when put away,
repents and wishes to return to her husband, shall
she not be taken back by her husband? And he
said to me, Verily, if her husband do not take her
back, he sins, and allows himself to commit a
great sin; he ought to take back the sinning woman
who has repented; but ought not to do this often.
For there is one repentance for the servants of
God.    On   account of repentance therefore the
man ought not to marry.     This conduct is incumbent on both man and woman.           Nor is there
adultery only, said he, if one pollutes his own flesh,
but also when any one does things like to the Gentiles he commits adultery.   Hence, if one persists
in such things also and repents not, withdraw from
him and live not with him. Otherwise thou too
art partaker of his sin. For this was the command given to you to remain by yourselves,
whether man or woman, for in things of this sort
there can be repentance."@
* In the Greek texts, as restored by Tischendorf, in Dressel's
edition, and lately by Hilgenfeld, for " the sinning woman who
has repented," of the Latin text, appears " him who hath sinned
and repented."  The words there is one repentance, etc., seem to
mean that only once and not more than once after baptism, a sin
ner who has committed an act of open deliberate immorality can
be received back as a penitent into the church. To give a sin.
ning wife a motive for repentance and not to drive her to despail
-this is what is meant by " on account of repentance a man ought
not to marry" another woman. The indulgence of Hermas in




AND IN THE CHRISTIAN CHURCH.         109
In this passage it is distinctly asserted that a
man who puts away an adulterous wife, and marries another woman, commits adultery; and another reason is given for his remaining unmarriednanely that he may be in a condition to receive her
back on her repentance.  But such indulgence cannot extend beyond the first transgression.   Here
the foundation on which the first assertion is built
is, no doubt, the words of our Lord, as limited by
the Apostle in 1 Cor. vii., " let her remain unmarried, or be reconciled to her husband," and
Hermas conceived that the reconciliation there referred to was to follow a separation on account of
the adultery of the husband.    He reasons fairly,
as others have done then and since, that if this be
a command for the wife, it is such also for the husband.   Thus his injunctions are all scriptural,
according to his understanding of Scripture.  He
may have been weak-minded, he may have misunderstood Scripture, as we think that he did,
but he represents an opinion that must have been
extensively held, and at length became the ruling one, and all this long before the doctrine of
the sacramental character of marriage obtained
currency.
allowing that there could be any second " repentance," was exceedingly distasteful to Tertullian, after he became a Montanist.
Comp. his de pudicitia, ~~ 10, 20, where he has the words "scriptura Pastoris quse sola moechos amat," and thinks that the author
ought to have learned the opposite from the Apostles, referring
to Hebrews vi. 4-6.




110 LAW OF DIVORCE IN THIE RO3MAN EMPIRE,
In the next three centuries many other witnesses
appear on the same side. Clement, of Alexandria,
says (Strom. ii., 23, ~ 144), that Scripture " regards
marrying again to be adultery, if the other divorced partner is living;" and again, a little after
(~ 145), not only does he who puts away a woman
cause her to commit adultery, but he who receives
her also, as giving her opportunity to sin. For if
he did not receive her, she would go back to her
husband,"' where reconciliation is thought of as
possible and desirable, whatever the woman had
done to occasion the divorce. Origen seems to be
of the same mind, where he says that some rulers
of the church have permitted a woman to marry,
while her husband is alive, contrary to what is
written in 1 Cor. vii. 39, and Rom. vii. 3."  That
Tertullian could be of another mind would be
strange, when his opinion on second marriages in
general is taken  into account. In the fourth
century, near the end, Augustin did more than
any other man to establish the same opinion. He
advocates it in several places. His treatise, de
conjZGYiis cad'ltelrinis, to which we have already
referred, was written especially to show that 1 Cor.
vii. 11, "let her remain unmarried, or be reconciled to her husband," can be understood only of
a wife who has withdrawn from her husband on
account of his unfaithfulness, and he reasons pow* Origen on Matthew xix. 8, in the ed. of Lommatsch, vol. 3,
p. 320. For Tertullian, see do Monogam., ~g 9, 10.




AND IN THE CIRtISTIAN CHURiCH.       11l
erfully, if inconclusively.  His friend Pollentius
had maintained that in this passage she was to remain unmarried, quce sine cacusa fornicationis discessit a viro, thus interpreting it correctly, as Chrysostom did, of separation not amounting to formal
divorce for causes short of the husband's crime.*
Augustin maintains, as he had done many years
before in his exposition of Matthew, that they were
commanded to remain unmarried, q pbC a viris snis
ea causa recesserint, qnce solac pe7mnissa est, id est,
fornicationis. Pollentius thought also, consistently
with this his opinion, that marriage is dissolved by
adultery just as by death, and absurdly supported
his cause by an appeal to Rom. vii. 2, "if her
husband be dead she is no adulteress, though she
be married to another man," on the ground that
the criminal husband was to be regarded as if he
were dead, and that therefore it was lawful tanquan post nmortem, itacpostfornicationem conjatgis,
alteri copulari.  In this work Augustin     comes
on ground where Hermas stood. Thus he says
to his friend, " what seems hard to you, that
one of the married pair should be reconciled
to the other after adultery, will not be hard
if faith is there.  For why do we still regard
as adulterers those whom     we believe to have
* Chrysost., Horn. xix., on 1 Cor. vii., where the causes of the
separation, which the distinguished interpreter conceives of, are
"continence, and other pretexts, and pettinesses," or comparatively trifling reasons.




112 LAW OF DIVORCE IN THE ROMAN EMPIRE,
been washed by baptism or healed by repentance?"
Jerome, a contemporary of Augustin, is also
decided in his opinion on the same side, as may be
seen in his commentary on Matt. xiv. 9.*         A
letter of his to a friend, Oceanus, is deserving'of
mention, as giving us the case of a divorce and remarriage of a Christian lady of high condition.
Fabiola had a worthless, licentious husband.   She
had a right, says Jerome, to repudiate him, although not to marry again.     The sexes ought to
be equal in their rights. What is allowed to the
man ought to be allowed to the wife. But Fabiola,
young, rich, as yet not thoroughly       Christian,
thought, because her husband was rightfully put
away, that she might marry another. She had not
as yet known the " vigor of the Gospel," " n quo
nubendi universa ccassatio, viventibus viris, femi-.%is amputatur; so while she avoided many wounds
from   the devil, she incautiously received    one
wound."'    The monk makes the best excuse for
her that he can.   "If she is blamed because when
her husband was divorced she did not remain unmarried, I will readily admit her fault, while I ad* Ubicumque est igitur fornicatio et fornicationis suspicio libere
uxor dimmittitur. Et quia poterat accidere ut aliquis calumniam
faceret innocenti, et ob secundam copulam nuptiarum veteri
crimen impingeret, sic priorem dimittere jubetur uxorem, ut
secundam prima vivente, non haberet. Here, it would seem, if the
crime was manifest and confessed, his objections against a
second marriage would be nugatory.




AND IN THE CHRISTIAN CHURCH.       113
mit her necessity." This lay in her youth, her position, her temptations. She married therefore, but
after her second husband's death took such a view
as Jerome and the times demanded, of her conduct.
She openly professed repentance: sic dolebat pzasi
adulterium commisisset.  She abounded in good
works, and died, as Jerome thought, a most holy
woman.*
From this time onward the rule became more
and more established, that remarriage after separation was unlawful in the Christian Church, that
only separations a mensa et toro were possible.
The proofs of this are abundant, but they are needless, as the fact of a prevailing, and at length a
universal opinion in the direction named is unquestioned.t  No doubt the development of the
sacramental theory contributed to the consolidation of this opinion. "A true marriage," says
Innocent III., " can exist between infidels (a mact-.imobizm verum), but between the faithful marriage is both true and fixed (verumn et ratuzm), because the sacrament of the faith which is once received is never lost."  And yet the teachings of
the New Testament, as they were understood by
the early church, gave this shape to the sacrament
of marriage, so that as far as divorce is concerned,
* Epist. 77 of the Venice ed. of 1766.
jf Consult the decree of Gratian, Caus. xxvii., Quaest. vii., a
number of the Canons, Walter's Kirchenrecht, ~ 313, and the long
note of Cotelerius, Patr. Apostol. 2, 88 (ed. Amstelod., 1124).




114 LAW OF DIVORCE IN THE ROMAN EMPIREE,
nothing essentially new was deduced from the sacramental theory.
While in the Western Church marriage became rigidly indissoluble, and civil law was shaped
in conformity with ecclesiastical judgments,* in
the East the case was otherwise.  Some of the
Fathers looked with indulgence on the remarriage
of the innocent party, and, on the other hand, the
law of the Greek Church permitted separation
only when the wife and not when the husband had
been unfaithful. But the civil law did not conform itself to the law of the Church and of the New
Testament, as understood by the Church', but in
some respects to the laws of Rome under the emperors. For a time even the principle of divorce
by consent of the parties, which Justinian had
abandoned, was again introduced. Remarriage
was allowed somewhat freely, and to this legislation
the practice in the church was accommodated.t
Nor ought it to be supposed that in the Western Church opinion in regard to the lawfulness of
remarriage after divorce ran altogether in one direction.  The " leaders of the church,"' to whom
Origen refers in a passage we have cited, held
that an innocent party might remarry when divorced on account of the adultery of a wife or
* "The stricter rule of divorce, on the ground of adultery
alone, was first introduced into Italy [i. e. into state law] by
Charlemagne and the Emperor Lothaire." Gans, Erbrecht iii., 180.
t Walter, u. s., ~ 315.




AND IN THE CHRISTIAN CHIURCH.    115
husband.  Lactantius seems to hold the same
where he expresses the Christian doctrine thus
(Inst. vi., ~ 23), "that he is an adulterer who
marries a woman put away by her husband, and
he who, except for the crime of adultery, puts
away his wife to marry another."  So thought
also the friend of Augustin, Pollentius, to whom
we have adverted. Even Augustin had occasional
doubts whether the innocent party, after putting
away the adulterous one, might not marry again.
In his treatise defide et operibus, iv. 19, after saying that a man putting away a wife detected in
adultery and marrying another ought not to be
placed on a level with one who should do the
same without the ground of adultery, he adds,
" and in the expressions of the divine word it is
so obscure whether he, who has an unquestionable right of putting away an adulterous wife,
ought to be accounted an adulterer for taking
another, that, as far as I can see, in this case any
person may make a pardonable mistake (venialiter ibi quisque fallatur).*  The same thing is
taught so far as the innocent husband is concerned, by Ambrosiaster, as he is called, who is
generally thought to be Hilary the Deacon.
After citing 1 Cor. vii. 11, ending with, " and let
not the husband put away the wife," he adds " except for the cause of fornication must here be
* Cited by Richter, Kirchenr., ~ 282.




116 LAW OF DIVORCE IN THE ROMAN EMPIRE,
understood. And for this reason Paul does not
subjoin concerning the man what he had said before concerning the woman, because for the man
it is lawful to marry another woman after putting
away a sinning wife; for the man is not so bound
by the law as the woman is, since the man is the
head of the woman."  From this reason, to say
nothing of the conclusion, most of the church
writers would entirely dissent. Thus Lactantius
(u. s.) blames the one-sided Roman view of adultery, according to which "socla mulier adultera
est, quce habet alizrn, maritus autem, etiamsi plures habeat a crimine adulterii solutus est."  And
Augustin held to the parity of the sexes in their
marriage rights and obligations, saving that the
sinning husband ought to be more heavily punished than the sinning woman.'  To those who
held the freer opinion that marriage was in one
case dissolved, may be added the Council of Vermerie of the year 752, who decided that in case
a woman could be proved to have plotted her
husband's death, he might put her away and, if
he desired, might marry another. Here the crime
must have been regarded as equivalent to aduitery.t But none of these opinions carried any
weight with them, the stream of doctrine ran
quite the other way, and at length the council of
Trent only confirmed and reasserted what had
* De conjug. adult. i., 8, ii., 8.
f In the decree of Gratian, Caus. xxxi.. Quaest. 1, c. 6.




AND IN THE CHRISTIAN CHURCH.    117
then been long admitted without dissent for ages,
when it enacted the seventh canon on the sacrament of marriage, of which we gave the leading
part in ourlast chapter.*
A word or two ought to be added in regard to
the attitude which the church took toward the
parties who had been separated from one another
on account of crime. The marriage being dissolved only by death, the intention of the church
was to excite repentance in the guilty partner,
and after a probation to permit their reunion.
The penance was a long one. In the time of
Pope Stephen V. (Cent. 9) the husband could
decide whether he would receive back a guilty
wife after she had undergone seven years of penance or be separated from her altogether. To become thus reconciled was taught to be the duty
of a Christian, according to the words of Christ,
"neither do I condemn thee, go and sin no more."
During their separation the pair were to have no
intercourse as man and wife with one another;
and for the violation of this rule a severe penance
was inflicted on the innocent party. When the
marriage was terminated by death and the adulterous partner was the survivor, Canon law was
not so strict as Roman law. The adulteress for
instance could now marry her paramour unless
she had plotted against the life of her husband,
* See Appendix note 3.




118 LAW OF DIVORCE IN THE ROMAN EMPIRE,
or had promised marriage to the partner of her
guilt during the life of her husband.*
We should now close our brief sketch of divorce,
as it was looked at by the early and the mediaeval church, were it not necessary to speak for a
moment of another kind of transactions which
are sometimes called divorces, but are quite unlike
those of which we have been treating. We refer
to the separation of parties who have been living
together in marriage which is not really such, and
who therefore, when thus disjoined by the proper
authority, may be free to marry again. Such
cases our Lord did not have in his mind when he
gave out his law of divorce. But under every
civil law there must be such cases. Under the
canon law   of the mediaeval church there were
many such cases. When they are brought before
the court of the country or of the church it declares the marriage invalid; it pronounces a
decree of nullity; it declares that the parties
cannot lawfully live together hereafter, and possibly imposes penalties on them for so doing.
The canon law, which had marriage and divorce
under its control, acted in regard to such cases as
the Romans or any municipal law       would. Its
* Comp. Decret. Gratian. Caus. xxxiii., Quaest. 2, c. 8, Caus.
xxxi., Quaest. 1, several canons. Of course if the criminals
were within certain degrees of relationship, there was another
barrier in the way of their union. Caus. xxxiii., Quaest. 7, c.
19, 20.




AND IN THE CHRISTIAN CHURCH.     119
peculiarity was the number and complication of
these cases, and the snares which it laid, so to
speak, for married persons by its strict rules of
prohibited degrees. This again led to dispensations and to a gainful traffic in sacred things.
The impediments to marriage which went beyond putting off its solemnization, and which without vitiating the contract, did more than to render
it improper for the priest to unite the parties in
wedlock, were such as fraud, force, or serious mistake as the procuring causes of the consent, impuberty, impotence, a previous marriage, the vow at
ordination or in entering a monastic order, difference of religion, and a certain closeness of relationship. The most of these we pass over in
silence. By difference of religion is intended
marriage of a believer with a Jew or an infidel,
not marriage with a heretic or schismatic baptized person; and the case where one of two Jewish or infidel married partners becomes a believer
is subjected to other rules founded on 1 Cor. vii.
12-16. The impediments from nearness of relationship, making or capable of making marriage
void, grew up by degrees into a most intricate
and cumbrous system  from comparatively small
beginnings.  First the degrees of consanguinity
within which marriage was unlawful were greatly
extended. Next, on the principle that husband
and wife are one flesh, the blood relatives of each
were counted as relatives of' both, and from this




120 LAW OF DrIORpE IN THE ROMAN EMPIRE,
source might arise impediments to a second marriage of either of them. And not only this, but
it became unlawful for certain blood relatives of the
two parties to intermarry with one another. The
rites of baptism too and confirmation introduced
a spiritual relationship, as in the case of a godmother and a godson or his father, which was an
obstacle in the same direction. So also adoption
might present a hindrance of a similar kind.
In regard to consanguinity the canonical law
went no farther at first than the Roman, which
prohibited marriage between the immediate descendants of the same ancestor, as a brother and
sister, and between one immediate and one
more remote descendant, as an aunt and a nephew
or a great-uncle and a grand-niece. In the reign
of Theodosius the Great (A. D. 385), marriage
between first cousins was forbidden. The church,
starting from this point, gradually extended the
prohibited circle until it included those who were
within the seventh degree, that is, sixth cousins,
according to a computation which counted the
immediate descendants of a common ancestor the
first degree, first cousins the second, and so on.
This rule was authoritatively settled in the West
in the eleventh century by Pope Alexander II.
(A. D. 1065), although it had prevailed, more or
less, long before. Being however not a rule of
strict morality but of church practice, it could be
dispensed with or suspended. Thus Gregory the




AND IN THE CHRISTIAN CHURCH.           121
Great (A. D. 601) writes to his missionary in
England, Augustin, permitting       persons of the
fourth and fifth degrees of relationship* to intermarry in that country, intending, as he says,
that they should be, when more confirmed in the
faith, bound by a stricter law. In this letter he
makes the remark that Roman law allowed own
cousins to marry, but says, "experimento didicintus ex tali conjugio sobolemr   non posse succressere." But the rule of the seventh degree having been   found   inconvenient and not capable,
absque gravi dispendio, of being observed, the
sound sense of the great Pope, Innocent III., led
him to bring about an alteration of the rule in
A. D. 1215, at the fourth Lateran council. The
new  rule is this: prohibitio    copulce conjugalis
qua'turn   consanguinitatis et affnitatis ygradum
non excedat, which was so modified by Gregory
IX. who had the decretals compiled, that a person in the fourth and one in the fifth, or third
and fourth cousins, might be united in lawful
marriage.t    The same decree confined the ban
of affinity to the fourth remove, which before had
the same sweep with consanguinity to the sev* I. e. second and third cousins. See the passage in Gratian's
Decree, Caus. xxxv., Quaest. 5, c. 2. It is Alexander's edict.
The genuineness of Gregory's letter has been doubted. Compare
Richter, ~ 168.
f A reason alleged for this was that quatuor sunt humores in
corpore, qui constant ex quatuor elementis. Decretal. Greg. iv., 14,
cap. 8.
6




122 LAW OF DIVORCE IN THE ROMAN EMPIRE,
enth degree. In the Greek Church the blood relatives of the married pair were considered to
have contracted affinity with one another, but not
in the Latin, except that the children of a woman's second marriage were looked on as standing toward her first husband's relatives within
the prohibited circle, but this impediment again
was taken away by the legislation of Innocent
III.  There was again an impediment from illicit
intercourse which was brought within the narrowest limits by the Council of Trent. Still another
from the relation of the godparent was so far
removed by the same council, that it affected only
the godparents, the child and its parents, and the
baptizer.  And the same analogy applied to the
parties at a confirmation.    Finally  betrothal
involved a ban against marriage for each party
with the relatives of the other, but the Council
of Trent restricted its effects to the first degree."
In all cases, where a prohibition of marriage rested on other than fixed moral grounds, the pope, or
others acting with derived authority, could dispense with the rules of the church, and this was
done frequently, with or without reason.    The
Council of Trent makes the general order that dispensations are to be given beforehand either not
* Comp. Walter u. s. ~ 303-308, and Gaoschen inm erzog's
Encycl. iii., p. 667 et seq. The leading canons may be found in
the Decretals iv., 13 and 14, and in Sessio xxiv, cap. 2-4 of the
Council of Trent.




AND IN THE CHRISTIAN CHlURCH.     123
at all or rarely, and, if at all, for good cause and
gratuitously. There are to be no dispensations between parties standing in the second degree, nisi
inter maynos principes et ob p6ublicam catasam.
Another declaration of the council in regard to
the extent of the dispensing power is worthy of
notice here. " If any one shall affirm that only those
degrees of consanguinity and affinity, which are
expressed in Leviticus [xviii. 6, seq.] can prevent
the contracting of marriage or separate it when
contracted, or that the church cannot give a disp2ensation in regard to some of them, or enact that
others besides shall not prevent and separate, let
him be anathema."  If the reader will consult the
passage in Leviticus, he will find that all the cases
there mentioned are beyond the precedents of dispensation, and would be regarded as obstacles of
an absolute and moral nature, except that of a
brother's wife, in verse 16. Is not this then a sort
of ex post facto justification of the action in regard
to the marriage of Henry VIII. with his deceased
brother's wife?
When a marriage had been consummated with
the proper formalities, and there appeared afterward good reason for believing that it was an unlawful one, the case was brought before an ecclesiastical court. Where the impediments were of a public character, a public authority alone could institute a process of nullity, but where the impediments affected especially the private interests of




124 LAW OF DIVORCE IN THE ROMAN EMPIRE,
one of the parties, the injured party could bring a
complaint. If a decree of nullity was given by the
judge, it had no effect on the condition of the
children, nor yet on that of the parties up to
the time of the sentence, if they had acted
with good faith; and in any case the form
of the marriage protected the children.  The
parties after the decree were permitted to contract marriage with other persons, but the validity of the first marriage was always an open
question, and new evidence might at any time
reverse the decree.  In this case the second
marriage would be a nullity and the first would recover its obligatory force, so that now two separations, it might be, would be demanded by canonical law. The separations by sentence of nullity
were formerly called divorces as well as the separations a mensa et toro on account of adultery, but
a modern distinction of some Catholic writers between annullatio and separatio removes all ambiguity."
We may sum up what has been said of the separation of married partners during the early and
medieval periods of the Christian Church in the
following simple statements:
1. The prevailing and at length the unanimous
opinion in the church was that no crime of either
of the consorts, being baptized persons or Chris* Come. especially Goschen in Herzog, u. s., 697-G70,




AND IN THE CHRISTIAN CHURCH.       125
tians, justified the other in marrying again during
the life of the offending party.
2. When an infidel deserted his or her Christian consort, the latter was allowed to proceed to a
second marriage.
3. The development of the theory of the sacrament, as far as divorce was concerned, accepted
conclusions already drawn from Scripture.
4. As no crime entirely released the married
pair from their relation to one another, and as forgiveness and reconciliation, being Christian duties,
could now be exercised, consorts separated on account of adultery could come together again. For
a time rigid penance kept the offender from the
innocent party, and penance also was inflicted on
the innocent party who strove to renew intercourse
before the Church was satisfied.
5. In many cases where marriage was prohibited by canonical law, a sentence of nullity left
them free to unite themselves to other persons.*
* Comp. Walter u. s. ~ 303-308, and Gsschen in Herzog's
Encycl., iii., p. 667 et seq. The leading canons may be found in
the Decretals, iv., 13 and 14, and in Sessio xxiv., cap. 2-4 of the
Council of Trent.




126 DIVORCE AND DIVORCE LAW IN EUROPE
CHA PTER       IV.
DIVORCE AND DIVORCE LAW IN EUROPE SINCE THE
REFORMATION.
THE Catholic doctrine of marriage and divorce
was settled long before the Reformation, and was
only reaffirmed by the Council of Trent. The
nations which retained their allegiance to the old
church did not, so far as we are informed, make
innovations in the law of divorce, but continue
until now under the system handed down from
the middle ages. Far different has been the history of legislation in most Protestant countries,
and in that Catholic land which broke away at
once from the old religion and from all faith in
the Scriptures. The leaders in the changes of
matrimonial law were the Protestant reformers
themselves, and that, almost from the beginning
of the movement. It will be our endeavor in this
chapter to exhibit briefly the prevailing opinion at
the Reformation in regard to divorce, and then to
give a sketch of the law as it has shaped itself in
some of the principal countries of Europe, especially in Prussia, France, and England.
The reformers, when they discarded the sacra



SINCE THE REFORMATION.        127
mental view of marriage, and the celibacy of the
clergy, had to make out a new doctrine of marriage and of divorce. That doctrine was honestly
derived from the words of Christ and of Paul.
They saw, as they thought, in the rule of celibacy the source of boundless profligacy, a clergy
all over Christendom living in secret sin and hypocrisy, or under the burden of a broken heart.
They observed how the strict rules of the church
were neglected in the case of the great by pliant
priests, and how concubinage was almost tolerated.  To this the doctrine that no crime dissolved marriage, that adultery only separated the
marriage pair without giving relief to the innocent party, almost forced the church. Adultery,
too, as a part of the same system, seems not to
have been visited with severe church censures in
the later centuries; we are led to judge that it
was very common in the highest and the lowest
classes; and to have an unfaithful wife was a matter to call rather for ridicule than for condemnation. The old Catholic theory of marriage, in
short, was practically a failure in all its parts, in
its ascetic frown on marriage, in its demand from
the clergy of an abstinence not required from the
Christian laity, in teaching that nothing but death
could release a married pair from their obligations.
When it sought for impracticable virtue, and forbade to some what God had allowed to all, it
opened a fountain of vice with the smallest in



128  DIVORCE AND DIVO(CDE LAW IN EUROPE
citement to virtue. Besides this, it received, they
thought, as far as divorce went, no countenance
from the Scriptures. Christ had made a special
exception allowing the innocent party to put
away his wife on account of her crime and to
marry another, while Paul, according to the interpretation of Chrysostom and his school, released,
as they claimed, the deserted believer from all
ties to his or her unbelieving partner. Thus they
needed to have no fear of changing the law of
divorce. Marriage, second marriage, marriage of
priests had become honorable; marriage was no
more a sacrament; why should its dissolution in
cases provided for by the Scriptures be doubted?
If to all this we add the minor considerations that
Roman law, which allowed great freedom    of
divorce, must have grown in its authority as canon law became disregarded, and that the northern
nations, where Protestantism spread, are probably
less capable than the southern of being retained
by such rules as the church had enacted, we shall
have mentioned the leading influences which
affected Protestant legislation on the subject of
marriage and divorce.
The opinions of the reformers it is sometimes a
little difficult to -ascertain, as they seem to contradict themselves in different passages of their
works. Thus Luther in his sermon on marriage,
delivered at Wittenberg in 1525, uses the following language: "that [Matth. xix. 9] is a blunt,




SINCE THE REFORMATION.       129
clear, plain text, which says that no one, either on
account of leprosy or stinking breath or other
defect, shall forsake his wife, or the wife her husband, except on account of whoredom and adultery.'or only these causes separate man and
wife. Yet it must be satisfactorily proved before
separation, as reason demands, that adultery and
whoredom have occurred." But in other places
Luther's opinion is most openly expressed that
malicious desertion may be followed by a divorce
a vinculo. In an opinion of the year 1525, given
to the council and clergy of Domitsch, he writes
thus: "since a certain preacher's wife has dealt
so dishonorably with him, I cannot make his
rights longer or shorter than God has done, who
through St. Paul, 1 Cor. vii. 15, in such cases pronounces the following decision:'if the unbelieving depart, let him depart; the brother or sister
is not bound in such cases.' So say I, too. Whoever will not stay, let him be off. The other party
is not bound to stay unmarried, as I in a little
book on that chapter have written more at large,
to which I refer you. If, then, he cannot remain
without a wife, let him wed another in God's
name, because this woman will not be his wife."
An opinion of 1535, signed by Luther, Cruciger,
Major, and MIelancthon, allows a woman of Nordhausen, whose husband had absconded several
years before, to marry again, according to "the
decision of Paul, and according to the former
6*




130   DIVORCE AND DIVORCE LAW IN EUROPE
practice in Christendom, as a similar case cited by
Eusebius from Justin, and the example of Fabiola
show.'   The instances here adduced, by the way,
are not in point, for they relate to adultery, and,
moreover, Fabiola deeply regretted her step and
is praised by Jerome for so doing.     Again, in
his sermon " von ehzeliczen Leben,' belonging to
the year 1522, Luther mentions three causes justifying the dissolution of marriage, of which the
first, existing already before marriage, is a reason
for a sentence of nullity, and therefore has nothing to do with divorce proper; the second is adultery; the third is, " when one of the parties withdraws from the other, so that he or she will not
perform marital duty, or lead a common life with
the other." Thus, says lie, " we may find an obstinate woman who stiffens her neck, and if her
husband should fall ten times into unchastity,
cares nothing about it.  Here it is time for a man
to say,' if you won't, another can be found that
will. If the wife will not, let the maid come.'
Yet so that the husband give her two or three
warnings beforehand, and let the matter come before other people, so that her obstinacy may be
known and rebuked before the congregation.    If
she still will not, let her get herself gone, and
* The other instance is from Justin, Apol. ii. ~ 2, where a
Christian woman divorced herself from a husband "who tried
ways of pleasure against the laws of nature and against right."
Nor is any thing said of her marrying again.




SINCE THE REFORMATION.         131
procure an Esther for yourself and let Yashti be
off, as Ahasuerus did,"-a queer example without
doubt to give to Christians. It is evident that
here the refusal of connubial duty is thought of,
although malicious desertion may be involved."
The leaders of opinion in the Lutheran Church
followed the first reformers in their doctrine of divorce.  We cite but one,-Chemnitz-who in his
examination of the Council of Trent, sums up a
discussion on the sixth canon of matrimony in the
following language: "' We have, then, two cases in
Scripture where the bond of matrimony is dissolved-not as by men, but by God himself. 1.
On account of adultery a man lawfully, rightfully,
and without sin, can repudiate his wife. 2. If an
unbeliever will not cohabit with a believer but deserts, dismisses, and repudiates her, without charge
of adultery, and only on account of her faith, the
unbeliever sins indeed against God and against
the law of marriage, but the innocent, deserted
party is not under bondage, but is free from the
law of her husband, so as not to commit adultery if
lawfully wedded to another man. And these two
cases Chrysostom also has noticed on 1 Cor. vii.' Both unbelief,' says he,'gives cause [for divorce]
and so does fornication.' "t
* These passages are all found in Walch's ed. of Luther's
works, vol. x. See pages 797, 886, 884, 721-727.
f Examern Coznc. Trid., ii. 430, of the Frankfort ed., 1615. We
do not find the passage here cited in Chrysostom's Homily on this
chapter.




132  DIVORCE AND DIVORCE LAW IN EUROPE
Nor did the doctors in the reformed churches
differ in their opinions or in their interpretation of
Scripture from the Lutherans. Zwingli, in fact,
with his characteristic audacity seems to have
gone much farther than any one else. In the
Zurich marriage ordinances of 1525, adultery, malicious desertion, and plotting against the lifi 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.*
It seems to have excited some discussion in that
age whether elephantiasis or leprosy-a disease
then not so rare as now in Europe-could be a
cause of separation from the bond of matrimony.
Luther, in a passage already quoted, Calvin, in
one of his epistles, and elsewhere, and Beza, in his
treatise on divorce, all decide in the negative.t
The views of Calvin are somewhat obscurely
expressed in his annotation on Matt. xix. 9, occurring in his commentary on the harmony. After
speaking of the cause of divorce there contained in
Christ's words, he condemns the opinion of those
who hold elephantiasis to be another cause, " as
* Comp. Hcrzog's Enycl., article Ehe, vol. iv., written by Goschen, professor of law at Halle.
+ Calvin, Eppit., pp. 225, 226, of the Amsterdam ed. of his
works, last volume.




SINCE THE REFORMATION         133
being wiser than the heavenly master," and then
speaks of the passage in 1 Corinthians in words
like these: " When Paul mentions another cause,
-namely that the believing brother or sister is
not under bondage, where it happens that a consort is cast off by an unbeliever from a hatred of
religion-he does not differ from the mind of
Christ. For he does not discourse there on a justifiable cause of divorce, but only whether the
woman remains bound to her husband when she
has been impiously cast off from a hatred of God,
and cannot return into favor but by denying God.
Whence it is not strange that he prefers separation
from a mortal man (dissidium cum homine mortali) to alienation from God."' Here it might be said
with reason that a case of desertion of a wife by an
unsteady, dissipated husband, who had no objections to her religion, would not be covered by
Paul's words, as Calvin interprets them. There can
be, however, we conceive, no doubt that he would
stretch his rule to include such cases. For the
" ordonnances ecclesiastiques "of Geneva, enacted
in general assembly, Nov. 20, 1541, some two
months after his return from banishment, must
have had his concurrence, and divorce a vinoulo is
there expressly allowed in cases of malicious desertion.  " If a man," it is there said, "being
* He returned from Strasburg, Sept. 13th, 1541, and the ordinances were passed Nov. 20th following, and went into effect
Jan. 2d, 1542.




134   DIVORCE AND DIVORCE LAW IN EUROPE
debauched, abandon his wife without the said
wife's having given occasion or being culpable
therefor, and this has been duly known by the
testimony of neighbors and friends, and the woman
has brought a complaint in demand of a remedy,
let her be admonished to make diligent search in
order to ascertain what has become of him, and
let his nearest relations or friends be called to get
news of him.   Meanwhile, let the woman wait until the end of a year, if she cannot find out where
he is, and let her commit herself to God. At the
year's end she may come before the consistory,
and if it appears that she needs to marry, let the
consistory, after giving her exhortations, send her
to the council to be sworn that she does not know
where her husband has betaken himself, and let
the same oath be taken by his nearest relatives
and friends. After this, let such proclamations be
made, as have been spoken of, in order to give
liberty to the woman to marry again. If the absent man return afterward, let him   be punished,
as shall be judged reasonable."'
With Calvin, his disciple Beza agrees in his opinions concerning divorce.   In his note, indeed, on
1 Cor. vii. 15, he says, " non hie conceditur divor* For this extract and for all other references to early Protestant church ordinances on divorce, we are indebted to a program me
of Prof. Goschen of Halle, " doctrina de matrimonio ex ordinationibus ecclesiae evangelicse seculi decimi sexti adumbrata."
Halle, 1847. In his article, "E Ee e" in Hlerzog's Encycl., the same
learned lawyer gives again some of the same matter.




SINCE THE REFORMATION.          135
tium, sed desertse tantum consulitur," which might
leave us in doubt how ihe explained Paul's words.
But in his treatise, rle divortiis, he examines the
case spoken of by the Apostle, and having asked
the question, Whether it is right for the deserted
person, while the deserter is alive, to contract a new
marriage, answers most expressly that she is entirely free to marry if she will. And in a letter to
the churches of Neufchatel, in reply to the question whether leprosy is a valid ground of divorce,
while he denies that it is, he reaffirms the doctrine
taught in his treatise.*
The Protestant commentators of the sixteenth
and seventeenth centuries, or the large majority of
them, draw the liberty of remarriage after desertion
from the word of Paul.    Thus Paraeus: " she is
free not only c toro et mnen.sa but also from the
marriage tie to the deserter."' Aretius of Berne
on Mlatth. xix.: " This one cause of lawful separation [viz. adultery] Christ lays down; but the
Apostle on 1 Cor. vii. 15, allows another cause,
arising from  unequal marriage.   Other causes,
besides, we have pointed out in treating of the
subject of divorce, to which we refer the reader."t
So in century seventeenth, Grotiis: " She is not
bound to remain unmarried and to wait for or to
seek for reconciliation.  Christ's law is of force
* Beza de relpudiis et divortiis, Op. ii. 94, 95, Genev., 1582, and
Epist. x., in vol. iii., 215.
t He means apparently his theoloqie problemata,or loci communes.




136  DIVORCE AND DIVORCE LAW IN ETUROPE
when the parties are his disciples." Calixtus:
" She is not bound to cohabit or to remain unmarried."  MAilton's views are well known.    The
Puritans seem to have followed this interpretation.
But the interpreters within the English church
were not all of this mind. Wlitby, as nearly as
we can understand him, is on the other side, and
Iammond, who has no commentary on Paul's
verse, in his paraphrase of it condemns marrying
again in the case specified. Later still, we find
several annotators of the eighteenth century disagreeing with the current Protestant interpretation.@
It is not strange that the ecclesiastical ordinances, which are platforms of discipline, and in some
Protestant territories took the place of the old canonical law, by sanction of the civil power, should
express the reigning opinion. A few of them, it
is true, permit divorce proper for a single crime
only: thus the " renovation" of the church in Nordlingen speaks thus: " In the matter of divorce we
follow our Lord Jesus Christ, Matth. xix, not permitting true divorce, as far as it depends on us, except for the cause of fornication, nor without the
production of witnesses and before a magistrate,
that we may not, by furnishing occasion for fraud,
add the force of malice to evils already existing.
But in other things we follow the Apostle Paul, 1
* See Wolfius, Curce philolog. on the passage in Corinthians,
where they are spoken of at large.




SINCE THE REFORMATION.       137
Cor. vii., and allow persons who seek a divorce to
be separated by authority of the magistrate, but on
condition that they remain unmarried, according
to the precept of Christ, IMatth. xix." So the
" church-order of the N etherlanders at London" 
(1550): " from all these words of the Lord one may
easily perceive that the marriage bond is exceedingly strong, and that it can be broken only by
death and whoredom.n" So the " sacred liturgy of
the church of the foreigners at Frankfort " (1554)*
says that " they whom God has joined together,
can never be separated but on account of fornication, or for a time by mutual consent, that they
may give themselves to fasting and prayer."
But the great majority of the ordinances add
malicious desertion to adultery as a second ground
of divorce. So those of Liibeck (1531), of Goslar
(same year), of Lippe (1538), of Geneva, already
mentioned (1541), Calenburg-Gottingen (1542),
Brunswick-Luineberg (1543), Brandenburg (1573),
Mecklenburg   (1570), Brunswick-Grubenhagen
(1581), and Lower Saxony (1585). The last but one
of these uses the following words: " By no means
shall any divorce be allowed or procured except in
two cases which Christ and Paul have allowed in
the gospel. As namely and in the first place,
when one of the parties has been satisfactorily
proved guilty and jurally convicted of adultery,
* That is, as we suppose, the church of the English, which had
its difficulties in that year.




133 DIVORCE AND DIVORCE LAW IN EUROPE
and the innocent party will not or cannot at all
become reconciled to him, in such case at length
the sentence of divorce shall be pronounced according to Christ's words, M/atth. xix.... In the
second place, in cases of malicious desertion, runiing away and abandonment, of which St. Paul
speaks, 1 Cor. vii." And the last-mlentioned ordinance says that " whatever besides these two causes
[adultery and desertion] has been brought in by
some emperors, as Theodosius, Valentinian, Leo,
Justinian, to justify divorce, cannot be sufficient
for that purpose.'"?
One or two only of the ordinances of this period
extend the permission beyond the two causes of divorce so often spoken of. Those of Zurich we have
already mentioned. A Prussian consistorial ordinance, in cases of cruelty after fruitless attempts
to reform the man by discipline, allowed a separation from bed and board not exceeding three
years, after which the parties might be united
again, on the offender's giving sufficient security
that he would not repeat his misdeeds. If after
this, there should be an attempt by either party on
the other's life, by poison or otherwise, they might
thereupon be divorced, and the guilty party be remitted from the matrimonial to the secular court.
The question was discussed among the reformers whether the adulterous party ought to be
* All these instances are from Prof. G6schen's programme.




SINCE THE REFORMATION.                 139
suffered to marry again during the life-time of the
other consort. Luther 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.t
The church laws of the seventeenth and eighteenth centuries in     Germany very generally concede divorce only in the two cases already named,
* Luther's words are (Walch, x. 724), " but if the civil authorities are slack and negligent, and do not kill the adulterer, he may
flee to a distant land and there marry, if he cannot be continent.
But it were better he were dead and gone, to prevent evil examples (aber es ware besser todt todt mit ihm, etc.)."
So Calvin in a letter (Epist., p. 225, Amsterd. ed. of his works,
last vol.) says that " because the punishment of adultery has not
been as severe as it ought to be, so that they do not lose life who
violate the faith of wedlock, it would be hard that [a man or woman who had thus sinned] should be prohibited from marrying during life-time. Thus it is necessary that one indulgence draw with
it another. Yet it seems wisest not to let the guilty woman do
as she will in regard to marrying at once.  Such permission
should be delayed, whether by prescribing a certain time or by
waiting until the innocent party has contracted a new marriage."
In his note on Matth. xix. 9, Calvin expresses the same opinion in
regard to the deserts of the adulterous wife or husband, and
the " perverse indulgence of magistrates. "




140   DIVORCE AND DIVORCE LAW IN EUROPE
but the Wirtemberg ordinance goes farther than
this; it adds as grounds of divorce impotence
supervenient on marriage through the fault of
one of the parties, and obstinate refusal of matrimonial duty.
Meanwhile, a new turn was given to opinions
concerning divorce toward the end of the seventeenth century. Thomasius (ob. 1728), a professor of law at Halle; an audacious but superficial
thinker, gave the direction by leaving out of sight
the religious and moral side of marriage, and looking at it only as a civilian.*
He had vast influence on his age and many followed in his steps. Thus Kayser, afterward a
professor at Giessen, in a disputation of the year
1715, regards as good grounds for divorce, incompatibility of temper, contagious disease, cruel treatment, irreconcilable animosity; and other grounds
rarely or never held to be sufficient before. MAarriage is now coming to be regarded as a contract
for attaining merely outward ends, as an institution to be shaped and modified by the state, according to its views of expediency and its opinions
as to the best means for securing civil happiness; it
is putting off its religious and moral character.
These new views, which tallied so well with the
shallow spirit of the eighteenth century, found
* For Thomasius, see Tholuck's Article on him in Hcrzog's
Encyclop., vol. xvi., and his " Preliminary History of Rationalism,"
ii., 2, 61-76.




SINCE THE REFORMATION.          141
their expression first in the legislation of Prussia.*
In 1749, 751, part of a project of general code
for the Prussian states was published by Cocceii,
the chancellor under Frederic the Great, and the
divorce regulations which formed a portion of this
project, although this, as a whole, never acquired a
legal existence, passed by degrees into the law of
a large number of the provinces composing the
Prussian kingdom. In this project the innovations
are chiefly the following: first, that consent of
the parties can dissolve marriage, although a term
of a year's separation from bed and board is required to give opportunity for reconciliation.
Should they at the year's end still persist in their
decision, divorce may now be granted. Secondly,
divorce is allowed on account of " deadly hostility " between the parties, and is made to depend
on a variety of indications, as when blows are
given by one of the parties, or he has an infamous
disease, or he plots against the life of the other, or
is condemned to an infamous punishment. To
this, it is added, that complaints may be made for
smaller faults, as the cruelty (ssevitia) of the husband, the extravagance or drunkenness of the
wife. Here, too, a probation of not more than a
year's separation must precede a sentence of full
* For the legislation anterior to the introduction of the Prussian
Code or "Allgemeizes Landrechf." we rely on an Essay by Savigny,
entitled " Reform of the Laws concerning Divorce," in his Miscell.
Works (Vermischt. Schrift.), v. 222-414.




142   DIVORCE AND DIVORCE LAW IN EUROPE
divorce. One of the provinces, a little after, did
away with this probation in the case of " deadly
enmity,"' and authorized divorces on this ground
to be granted at once.
Then came a reaction. The king-still Frederic
the Great-while on a journey in Pomerania, in
1782, had his attention drawn to the frequency of
divorces, especially in the lower classes. HIe therefore issued an edict complaining of the frivolity
with which divorces were sought, the readiness to
contract inconsiderate marriages, the evils to families, etc.; and the chancellor was required to
amend the legislation. In the edict published in
consequence of this movement,divorce by consent of
parties was restricted to cases where the marriage
had been without children for several years, and
the judge was to be satisfied that the divorce was
sought by both parties freely, and after mature
consideration.  Divorce for fault of one of the
parties is granted on account of those same crimes
and differences between the parties, which the
law of 1749 regarded as justifying reasons. Soon
after this a project of a general code was made,
out of which the code of 1791 grew. Here divorce
by mutual consent is admitted only when the
parties have been four years without children, or
when for other reasons there is no prospect of any.
Divorce for deadly hatred is still admitted, but
the law adds that no marriage shall be dissolved
on account of invincible disinclination avowed by




SINCE THE REFORMA.TION.        143
one of the parties. The proofs of hatred as they
appear in former laws are now made distinct
grounds of divorce from the hatred itself.
We next come to the code or " Landrecht"
which is still in force for the kingdom of Prussia.*
Here the grounds for divorce involving wrong of
one of the parties are, first, adultery, sodomy, and
other unnatural vices, and suspicious intercolurse
especially after prohibition by a judge, attended
with a violent suspicion of adultery (668-676).
Next comes malicious desertion, of which quite
a number of cases are given.  For example, if a
woman leave her husband without cause, the judge
may require her return.  If she refuses, her husband may sue for divorce.   A husband is not
bound to take back a wife who has left him until
she proves the correctness of her life while away.
If a person is away on urgent and lawful business,
his act is not desertion exactly, but his consort
must wait ten years, and then sue for a judicial
declaration of his death (676-693.)  Persistent
refusal of marriage-intercourse is regarded as
equivalent to  malicious  desertion  (694 —695).
Plots or practices, endangering the life or health
of the other party, together with gross injury to
the honor or personal freedom of the same, are
sufficient grounds for divorce. But persons of
lower condition shall not have divorce granted to
* Preuss. Landrecht, II., part I., chiefly @ 668-834. We quote
the sections.




14:   DIVORCE AND DIVORCE LAW IN EUROPE
them on account of threats or abuse with the
tongue, nor for injurious acts and outrages, unless
these are causeless and maliciously repeated. Incompatibility of temper (unvertraglichkeit); and
quarrelsomeness are good grounds only when the
innocent party's life and health are endangered
(699-703). Gross;crimes, for which a disgraceful
punishment is slffered, furniSh ground for divorce.
So, also, when one party falsely accuses the other
of such crimes, or intentionally puts the other in
danger of losing life, honor, office, or business, or
enters into a disgraceful employment (704-707).
Drunkenness, extravagance, or a loose manner of
life (unordentliche wirthschaft) may be followed
by divorce, if not corrected by steps which the
judge takes on application from   the innocent
party (708-710).  So also failure to support a
wife, caused by crime, dissipation, or loose living,
entitles her to divorce, when after arrangements
made by the judge for her divorce the husband
persists in his conduct (711-713).  In all cases
the judge must take pains to restore a good understanding between the alienated parties (714).
The causes for divorce which may be referred to
accident or visitation of providence are these: incurable impotence supervenient after marriage, together with other incurable bodily defects exciting
disgust or preventing the fulfillment of the ends
of the marriage state (696-698), and insanity
lasting over a year without prospect of cure (698).




SINCE THE IEFORMATION.       145
The causes depending on the will of both or of
one of the parties are these: " Marriages without
children can be dissolved by mutual consent, if
neither frivolity nor haste nor secret force on
either side can be discovered. But mere disinclination of one party toward the other, not sustained by positive acts, is ordinarily no cause of
divorce, and yet in'special cases it may become
such, where the alienation is deep, violent, and
irreconcilable."  But in such cases the party urging this plea against the other's will must be declared to be in fault, and is liable to the penalties, or disadvantages in regard to property,
spoken of in a subsequent portion of the law (716
-718.) Where the reasons alleged for divorce are
of less weight, and hope of reconciliation exists,
the judge can delay making known his sentence
for a year, pending which time the parties may
live separated, and the judge must decree in
regard to questions of property and children. At
the end of the term a new attempt at reconciliation must be made, and if this is ineffectual, sentence can then be given (723-731).
No divorce shall be granted where one party
has brought the other to the commission of the
misdeeds on which the complaint is based.  So
condonation is an estoppal to suits arising out of
the crime forgiven. Cohabitation for a year after
knowledge of the crime implies condonation.
No separation from bed and board is allowed if




146   DIVORCE AND DIVORCE LAW IN EUROPE
one of the parties is a Protestant. If both are
Catholics, such separation has all the civil effects
of divorce. And it is left to the consciences of the
parties concerned to decide what use they will
make of their separation in the matter of contracting new marriages (733-735).
The consequences of divorce form an important
branch of the Prussian law.  Divorced persons
may in general marry again whom they will. But
a person divorced for adultery may not marry the
partner of the crime. Nor may they who have
been divorced on account of suspicious intercourse
marry those who have been connected with them
in their suspicious acts, and have produced a variance between the consorts (25-27).  Divorced
persons, like others, contracting a new marriage,
must prove the dissolution of the old one to the
clergyman who publishes and solemnizes the nuptials (17), and if there are minor children of a
former marriage, must exhibit a legal composition
with them in regard to property, or at least a
permit of a court of wards, before the new union
can be celebrated (18).  As for the rest, no delay
is imposed on the divorced man's remarrying, but
the woman must wait according to circumstances,
from three to nine months (19-23).
In the bearing of divorce upon the property of
the parties, the Prussian law seems to have followed to some extent the provisions of the Roman
code. At the time of the process it must be deter



SINCE THE REFORMATION.        147
mined by the judge which party is to blame for
the divorce, or which is more so, if both are in
fault. Wrongs directly violating marriage duty
are more blameworthy than such as do this indirectly. Intention also, and lightness of mind must
be taken into account in reckoning the fault.
This being ascertained, the case may be that neither
party is declared guilty, or that one is or is principally so, and provisions are necessary, according
as the property was held separately or in common.
In the first case, where neither party is pronounced
guilty, and the goods were not held in common,
they follow the rules prescribed for separation by
death. If there was a community of goods, each
takes the part contributed by him or her to the common stock before marriage, or added since. But in
the case of persons from whom a divorce is obtained on account of certain visitations of Providence, the other party-the sane party for instance
-must support the unfortunate one according to
their condition in life, if the latter has not the
means of support in his own hands. In the other
case, where one of the parties is pronounced guilty,
the rules in regard to the division of property run
into details too long to be described. The general
principle is that the guilty party, whether husband
or wife, shall suffer in property, as a sort of compensation to the other for crime or indiscretion.
Thus, if no community of goods had existed, the
party whose conduct caused the divorce is consid



148   DIVORCE AND DIVORCE LAW IN EUROPE
ered civilly dead, and all the advantages conceded
by the law to a surviving consort are granted
to the innocent partner. If community of goods
had existed, the innocent party can choose whether
to take half of them, or to demand a division. If
they are divided, the portion of the guilty party is
liable for the same satisfaction or compensation,
as if there had been no community of goods.
This satisfaction, if divorce grew out of the grosser
offenses named in the law, and there had been no
bargain, amounts to one-quarter of the property
of the guilty party, and if the offenses were less
gross, to one-sixth. Instead of this satisfaction,
the innocent wife can demand alimony on a
scale suitable to her condition in life. And if the
innocent husband, through age, sickness, or misfortune, is not in a condition to earn his living, he
can, instead of a satisfaction, choose alimony to be
paid out of his wife~s property. But if the guilty
party can give neither compensation, nor satisfaction, nor support, he or she must for the offenses
occasioning the divorce be imprisoned, or be put
to penal labor, for a time varying from fourteen
days to three months (T45-823).
Marriage in Prussia, as in most other Christian
countries, requires certain religious formalities in
order to be valid. If a Catholic curate hesitates to
publish and solemnize a marriage allowed by the
laws, because the dispensation of his superior has
not been asked for or has been refused, he must




SINCE THE REFORMATION        149
allow another clergyman to perform these services
in his place. For Protestant ministers there is, we
believe, no such indulgence. And hence, those
who regard the Prussian law of divorce as heathenish and unchristian, who scruple to unite a woman
divorced without adultery to another husband and
to say that God has joined them together, must
occasionally be brought into extreme perplexity.
The only way of preventing such outrageous
tyranny is to put them on a level with Catholic
priests, or to introduce the French civil marriage.
It is natural that the complaints against the
Prussian law should be great. Not only has it
dissatisfied numbers of the clergy, but some also
of the most eminent jurists have desired to see
it modified.  Savigny (u. s. 353-414) gives us
two such documents, containing projects of new
divorce laws framed by two commnissions, the one
in 1842, the other in 1844. HIe must have been
in the counsels which originated one or both of
these. We have no room to describe their provisions, except to say that they both exceedingly
abridge the causes of divorce. Both pronounce
against mutual consent, violent contrariety of
temper, deficient proof of innocent life on the part
of a woman separated before divorce from her
husband, disease and defect caused after marriage
by visitation of Providence, and suspected intercourse contrary to the order of a court.  Besides
these, the first commission of 1842 eliminates mad



150   DIVORCE AND DIVORCE LAW IN EUROPE
ness, refusal of connubial duty, injuries to the
honor or freedom of one of the parties by the
other,-unless they run into prolonged and gross
outraages,-quarrelsomeness, danger to life, honor,
office, or business b)y unpermitted actions, unless
these furnish reason for divorce of another kind;
together with drunkenness and other loose living,
and failure to furnish support, excepting the case
w~hen through crime, drunkenness, or dissoluteness
a man has taken away from himself the power to
maintain his wife, in which case divorce may be
allowed. It is a decisive condemnation of the law
that jurists of the highest eminence were found
ready to make such sweeping changes in the code.
But the attempts to change the law were ineffectual, nor have others since made, unless we are
deceived, been more successful.
The provisions of the Austrian code applicable
to non-Catholics and the church-ordinance of
Baden approach nearest in point of laxity to the
Prussian law. All the other States of Germany
confine divorce to cases of guilt, although they
generally go, in their enumeration of the kinds of
wrong-doing which furnish ground for divorce,
beyond the legislation of the age of the reformers.
From Prussia we turn to France, where the experinents in divorce legislation coincide nearly
with the phases of political revolution. The old
system, conformable to the ecclesiastical law of divorce, was overthrown by a new divorce law passed




SINCE THE REFORMATION.        151
Sept. 20, 1792, at the opening of the National Convention. In this new law three causes of divorce
are allowed, mutual consent, allegation of incompatibility of temper brought by one of the consorts,
and certain specific or determinate motives derived
from the condition or conduct of either of the married parties. These last are derangement of reason,
condemnation by a tribunal to a painful or infamous penalty, crimes, cruelties, or grave injuries
of either party toward the other, notorious licentiousness of morals, desertion for at least two
years, absence for at least five without sending
news, and finally emigration from France in certain cases, which was naturally a transitory
measure. Separation of body, or divorce a menac
et toro, was to be hereafter abolished, and separations already decreed by process at law could be
turned into divorces. The divorced parties could
marry one another de novo, and could marry other
persons after a year, in cases of divorce for incompatibility or with mutual consent. When the divorce was granted for a determinate cause, the wife
must wait a year before marrying, except in the
case of the husband's absence for five years, when
she is allowed to marry immediately after obtaining her divorce.
So far the new law went back to the loose Roman practice, but the mode of procuring divorce
was somewhat original. In case the steps for this
purpose began in mutual consent, a family coun



152  DIVORCE AND DIVORCE LAW IN EUROPE
cil of at least six relations or friends was to I
convened by the parties, half chosen by the huhband, half by the wife. When after a month's
warning the council should meet, it was to hear
the reasons of the parties who had desired divorce,
and to make observations on the case. If not
reconciled, the parties were now to present themselves, from one to six months after the meeting
of the council, before the proper public officer of
the husband's domicil, who, without entering into
the reasons of the case, was to grant the divorce.
If the parties neglected to take this step within six
months after the meeting of the council, they
would need to go through the same formalities
again after the same intervals. If they were
minors, one or both, or had children, the delays
were to be doubled.
In cases where one of the consorts demanded divorce on the ground of incompatibility of temper,
the steps were the same as those already described,
with this difference, that there were to be three
assemblies of the family council at certain fixed
intervals.
Where a specific ground for divorce was alleged
by one of the parties, if it were absence without
news for nine years, or judgment for crime, the
public officer could grant the suit at once, unless
indeed the nature or validity of the judgment
were contested by the other party, in which case
the tribunal of the district must first decide the




SINCE THE REFOtMATION.       153
disputed point. If the specific ground were any
other, as derangement, profligacy, desertion, injury
of the consort, the demandant had first to bring
his case before family arbitrators " in the form prescribed for suits between husband and wife." If
they regarded his demand as founded in fact, the
divorce could be granted by the public officer of
the husband's domicil, but there might be an appeal
by the defendant from the arbitrators' sentence,
which appeal was to be decided within a month.
This law opened a wide door to divorce, and in
so doing disregarded the feelings and habits of the
devout Catholics still remaining in France, by
banishing all separation a mzensa et toro from legislation. But the door was not yet wide enough
for a " wicked and adulterous generation.' It
needed the additional clauses passed by the National Convention on the 8th of Nivose, An 2Sat., Dec. 28, 1793-and on the 4th of Floreal of
the same year-Wed., April 23, 1794-to become
perfect of its kind. The first addition, brought
forward by Merlin of Douai, who said that it was
conformable to a provision of a civil code then in
the hands of a revising committee, enacted that
a divorced husband might marry immediately
after the divorce was pronounced, and the wife
after an interval of ten months. The second, a
far more immoral enactment, declared that a separation in fact of a married pair for six months,
even though proved by common fame only, should
7* 




1 4  DIVORCE AND DIVORCE LAW IN EUROPE
be cause for pronouncing them divorced without
delay, if one of them demanded it. The document
certifying such common fame should be given by
the council of the commune on the attestation of
six citizens. The demander of the divorce, if a
resident for six months in a new commune, could
cite the other partner before the public officer of
his actual domicil. But no citation was necessary,
if one of the pair had abandoned the commune
where they lived without giving news of himself
afterward.  The divorced woman could marry
after a certified separation in fact of ten months,
but an accouchement in the interval would render
such delay unnecessary. Finally, divorces effected and authenticated before Sept. 20, 1792 [and
therefore with no law to authorize them], on the
ground that marriage is a civil contract, are confirmed in their legality.
These final strokes of the law belong to the
worst times of the revolution. A reaction showed
itself in the autumn of 1794, and these two last
laws were suspended on the 15th of Thermidor, An
3,-Sunday, Aug. 2, 1795.   The representative
Mailhe, who moved the suspension, remarked that
by these laws the hasty outbursts of passion became irreparable, and took from their unhappy
victims the refuge even of reflection and repentance. He then goes on to say that the law of 4th
Flor6al, making separation in fact for six months
a ground of divorce, was forced on the legislative




SINCE THE REFORMATION.         155
committee of the Convention by a " decemvir,"
meaning, we suppose, a member of the Committee
of Public Safety, who had under his protection
the wife of a man shut up in one of the " bastiles
of terror," and wished to secure her for himself
without loss of property, which would be sequestrated if her husband was condemned before her
divorce." "A decree of exemption might have
unmasked this new Appius. It was thought better to propose a general law."  "You know in
fact," says he, "that the decemviral oppression
weighed on the committees, and on the Convention generally. Into how many families have not
these laws [of 8 Nivose and 4 Floreal] brought
dissolution and despair.  How much at this moment do they not aggravate the condition of those
who are detained for reasons of general security
[who may be separated in fact six months by imprisonment, and so lose their wives by these laws].
You cannot too soon stop the flood of immorality
which these disastrous laws are rolling on us."
Thus the law of Sept. 20, 1792, alone was now
in force, and continued to govern in cases of divorce for some eleven years.t
The last form which the law of divorce took in
* We are not sure that we have seized the sonse here.
+ The laws mentioned above may be found in the "reimpression de l'ancienl Moniteur," generally a few pages after the date of
their enactment. The remarks of Mailhe we have extracted from
the same journal. See Vol. 19, 69; 20, 297; 25, 403.




156   DIVORCE AND DIVORCE LAW IN EUROPE.
France before the restoration of the Bourbons,
was that which appears in the Code Civil des
Frangais, or as it was subsequently called the Code
Napoleon. From the year eight of the Republic,
corresponding with parts of 1799 and 1800, a project of a code had been sent to the superior courts
for examination, and then-their observations being placed in the hands of the Council of Statethe section on legislation within the council made
a new project, which, after discussion in the council, resulted in the Code Civil. These discussions
are of high interest, as indicating a reaction from
the views of the revolution concerning divorce, and
we should be glad to quote from them at large if
we could afford the space.* The title on divorce
was decreed March 21, 1803, or 30 Ventose, An
11, and continued to be law until the fall of Napoleon, with very slight changes due to the imperial system. The differences between this law and
that of Sept. 20, 1792, are chiefly these.  The
system of family councils is abandoned.  The formalities in cases of divorce by consent of both consorts, or complaint of one, are such as to retard the
decision considerably, and give time for reflection
and the spirit of reconciliation. The limits within
which divorce by mutual consent is confined show
* We use the " discussions " as arranged by Jouanneau and
others according to subjects. Paris, An xiii. (1805). The chief
speakers are Portalis, Boulay, Berlier, Emmery, Tronchet, the
First Consul Bonaparte, and the Consul Cambac6res.




SINCE THE REFORMATION.       157
a feeling that the license in this respect had gone
too far. In case of adultery the, offending party
could contract no marriage with his or her partner
in guilt, and the adulterous wife was subjected to
confinement in a house of correction. A divorced
couple could never be united together again in
marriage. Separation "de cor8ps " or a mensa et
toro is restored to legislation.for the sake of the
Catholics.
A long discussion took place in the Council of
State on the question whether incompatibility of
temper, or in other words mutual consent should
be admitted at all as a ground of divorce. The
distinguished lawyer Portalis was against divorce
for incompatibility of temper.  There was no
reason for it in the nature of marriage as a contract.  This was not an ordinary contract. No
legislator would endure such a thing as a marriage
for a limited term of years. It subsisted for society, for children; and the interests of the wife
repelled divorce for indeterminate reasons. The
granting of such divorces multiplied their number,
and tended to demoralize France. Others agreed
with him, and all the tribunals had been of the
same opinion, or like that of Paris, had demanded
that the incompatibility should be proved by facts.
The First Consul, whose vigorous thinking is continually manifest, replied that mutual consent
was a way of hiding shameful family secrets from
the public gaze. Tronchet replied'hat the malig



15S   DIVORCE AND DIVORCE LAW IN EUROPE
nant would say that the pretext of incompatibility
had been employed to conceal more shameful
reasons. Portalis, too, said that a wife would say
to the legislator, "you dishonor me by concealing
the true cause of the divorce; you give room to
all sorts of suspicions; whilst my husband who
repudiates me quits me only because he is hurried
away by a shameful passion." " And what inconvenience," adds he,' would there be in accusations
for adultery being made public. It is the crime
which makes the shame, and not the accusation.
If we look within we shall find that the only fear
that agitates us is that of ridicule; for, we must
confess it, in the present state of our morals we
seek to save ourselves more from ridicule than from
vice itself.' These views did not prevail. The
council, notwithstanding the arguments against
mutual consent as a ground of divorce, introduced
it into the law; and principally for the purpose of
covering up specific causes of divorce, which it
might be disgraceful to have known. Some of
those who were consulted in framing the law proposed that this kind of divorce should be interdicted to consorts who had children, but the proposal was rejected-one member of the council
remarked that children were thus spared the shame
of having the scandalous conduct of either parent
spread abroad.
To come now to the law itself (Code Civil, Tit.
VI., Art. 229-311), the causes of divorce are the




SINCE THE REFORMATION.        159
following: 1. for the husband, the wife's adultery;
2. for the wife, that gross form  of the husband's
adultery when he has kept a concubine in the common dwelling; 3. for either consort, outrages,
cruelties, or grave injuries inflicted by the other
(exces, sevices, injures graves); 4. for either, the
condemnation of the other to an infamous punishment (peine infamante). 5. " The mutual and persevering consent of the consorts expressed in the
manner prescribed by law, under the conditions
and with the proofs which it establishes, shall be
sufficient evidence that a common life is insupportable to them, and that there exists in their case
a peremptory reason for divorce."
These grounds for divorce are divided into determinate or specific, and indeterminate, or those
which rest on no specific act or series of acts. In
assigning these grounds the law stops short of the
freedom of the Roman law, which it in some respects follows,-for instance, in making ordinary
adultery on the part of the husband no cause for
the separation of the parties. Under No. 3, the
expressions may include a wide range of actions,
and much was left to the discretion of the judge.
Here, if anywhere in the law, must come in malicious desertion under the head of cruelties or
grave injuries.
In a second chapter, the law treats of the forms
of divorce for a determinate cause; of the provisory measures to which the suit for divorce for a




160  DIVORCE AND DIVOCEE LAW IN EUROPE
determinate cause can give rise; and of the pleas
in bar of action in such cases. The provisions are
careful and minute, such as to guard against any
improper haste or advantage of the complaining
party. We cite only one or two particulars from
this chapter. The demandant of the divorce must
always appear in person through the stages of the
cause, and with counsel if he wishes; but his counsel
cannot supply his place. When the plea for divorce is based on outrages, etc. (No. 3, above), the
judges are not permitted, although the case may
be clear, to decree the divorce directly. The woman is authorized to quit her husband's company,
and entitled during the interval, until the case be
decided, to receive alimony from him, if she have
not herself sources of supply for her wants. Then,
after a year of " trial " (epreuve), if they are not
reunited, the original demandant can make a new
citation of the other consort, and the case can go
on. When the case has passed onward to its final
stage, the demandant is obliged to present himself
before the civil officer, for the purpose of having
the divorce pronounced, having summoned the
other party for that purpose.  This must take
place within two months after the final judgment,
and if such party neglects to have the other summoned, the proceedings are to go for nothing, and
he cannot bring a suit for divorce again except on
some new ground. Other articles allow the woman, in all causes where specific grounds for di



SINCE THE REFORMATION.          161
vorce are alleged, to quit her, husband's domicil
for another indicated by the judge, and to receive
alimony proportionate to his means, until the case
is settled.
Some of the provisions of the chapter on divorce
by mutual consent are worthy of note, as showing
the anxiety of the redactors of the law lest this
principle should multiply divorces greatly. No
mutual consent should have any force unless the
husband were over twenty-five and the wife at least
twenty-one, and under forty-five years of age;
unless they had lived together two years, and had
not lived together twenty; and unless their mutual
consent were authorized by their fathers and
mothers, or by other living ascendants according
to the rules prescribed in the law concerning marriage.+ Then the parties are required to reduce
to writing their proposed arrangements in regard
to alimony and the guardianship of the children,
and to present themselves before the judicial officer
of their arrondissement together and in person, in
order to make before two notaries a declaration of
their will. After the judge shall have made to
them such representations and exhortations as he
shall think fit, and shall have read the fourth chapter of the law relating to the effects of divorce, if
* That is, if.no father and mother can give their consent, a
grandfather and grandmother must do it, or if they, being of the
same line, disagree, the grandfather's consent is enough. Code
Civ., 145-150.




162 DIVORCE AND DIVORCE LAW IN EUROPE
they persist in their resolution, they are required
to produce before him an inventory of their goods,
their arrangements already spoken of, certificates
of their birth and marriage, of the birth and death
of all the children born of their union, and of the
consent of the proper relative in the ascendingline
to their divorce. A proces-verbal is to be drawn
up, into which all these acts are introduced, with
a notice to the wife to reside in a house agreed
upon, apart from her husband, until the case be
finished. The declaration of the parties touching
their mutual consent shall be renewed with the
same formalities in the first half of the fourth,
seventh, and tenth month after the first proceedings, at which times formal proof must be adduced that their relatives continue to give their
assent. At the expiration of a year from their
original declaration they are required to appear,
supported each by two friends of fifty years old
and upward, before the judicial officer of the
arrondissement, in order to present to him the acts
drawn up on the four occasions already mentioned,
and to demand of him separately, yet in the presence of each other and of the four friends, a decree
of divorce. Then the reports of all the proceedings
hitherto are to be submitted to the " ministere
pu2bic," who, if he finds all the formalities of the
law complied with, shall give his conclusions in
the form " la loi permet," and shall refer the matter to " the tribunal." If the tribunal is of opinion




SINCE THE REFORMATION.              163
that the parties have satisfied the law, it shall allow the divorce and send the parties to the civil
officer in order to have it pronounced; otherwise
the tribunal shall declare that the divorce cannot
take place, and shall draw up the reasons for such
a conclusion.   The parties are to appear before
the officer authorized to pronounce the divorce
within twenty days after the decree of the tribunal, failing to do which they render the decree of
the tribunal without effect.*
The next chapter on the effects of divorce will
show more clearly still, by several of its provisions,
the intention, already made apparent, of putting
as many clogs on divorce by mutual consent as
possible.   This chapter prescribes that divorced
parties shall never marry each other again; that
when the divorce is for a determinate cause, tell
months must elapse before the woman can contract a second marriage; that the guilty partner,
where adultery is the cause of divorce, can never
* These provisions of the Code Civil were reproduced in a Rheinische Gesetzbuch, a code founded on the Code Civil, we believe,
and controlling a part of the Rhenish provinces of Prussia. That
divorce by mutual consent is there unfrequent is shown by the
fact which Savigny mentions, that in thirty-six years only seventeen such divorces took place in a population of more than two
millions, of whom about a fifth belonged to the Evangelical Church,
(Reform of the laws on divorce, u. s., v. 282). Probably, however, the Catholic habits of a good part of this population ought
to be taken into consideration in explaining this fact, and to this
Savigny does not advert.




164  DIVORCE AND DIVORCE LAW IN EUROPE
marry his or her accomplice; and that the woman,
if an adulteress, shall be shut up in a house of
correction for not less than three months, nor more
than two years. When the divorce is by mutual
consent, the parties cannot marry again during
three years after the pronunciation of the divorce,
and half of the property of each of them, from the
day of their first declaration of their purpose to
procure a divorce, shall be transferred to the offspring of their marriage in full right-they themselves having the enjoyment of the property during the minority of the children, subject, however,
to the proper charges for the children's maintenance and education. In all other kinds of divorce, except for mutual consent, the party against
whom the divorce has been obtained shall lose all
advantages conceded by the other consort, whether
by contract of marriage, or since its consummation; while, on the other hand, the party who has
obtained the divorce (the innocent party) shall continue to enjoy the advantages conceded by the other
party, whether originally reciprocal or not. Power,
also, is given to the courts to grant to such innocents
party, if not already having the means of support,
an alimony from the revenues of the other party,
not exceeding a third part of them, and revocable
when no longer needed. Of the arrangements
in relation to the children, we omit to speak.
The last chapter of this divorce law relates to
separation, " de corps,' or a mensa et toro. This




SINCE THE REFORMATION.        165
cannot originate in mutual consent, but only in
some determinate ground. If it is obtained on
account of the adultery of the wife, she shall be
shut up in a house of correction for the term
already mentioned, but the husband may terminate the effect of this penalty by consenting to
take her back again before it has expired. A separation for any other cause except a wife9s adultery, after it has lasted three years, may be converted into divorce by a court on the demand of
the party who was originally the defendant, provided the original demandant does not consent to
put an end to the separation at once.
Here, as we have said, the authors of the law
went back upon Catholic principles, which knew
no other separation of a married pair, and never
dissolved marriage; it agrees, again, with the old
ecclesiastical usage in shutting up for a time the
woman guilty of adultery, and it thus contemplates, as the church did, a reconciliation; but its
peculiarity consists in converting the separation
into full divorce after a term of years. There
must be a limit of time after which the party sinned
against in the first instance shall decide whether
he or she will receive back the other, or shall put
it into the other's power to marry some other person. The law, although it runs athwart of the
Catholic doctrine of the indissolubility of marriage,
yet does no hurt to tender Catholic consciences.
For the divorce on petition of the original defend



166  DIVORCE AND DIVORCE LAW IN EUROPE
ant-who might be a Protestant or of no religion
-while it allows the other party to marry, does
not force him or her to swerve from the strictest
principles of his religion.  It only says that he
shall not by hisbitterness of spirit put an obstacle
in the way both of reconciliation and of the other
party's remarriage, except in the case of his wife's
adultery, when his refusal to take her back can
make the separation perpetual. The guilty woman
might thus be placed on worse ground by this
process of separation than by divorce, for the law
lays no impediment in the way of her remarriage after divorce when her time of imprisonment is served
out, except that of marrying the partner of her
crime. In the draft of the chapter on the effects
of divorce submitted to the council of state, it was
provided that the adulterous woman could never
marry again, but on the remark of IM. Tronchet,
that this prohibition would have a dangerous influence on morals by furnishing an excuse for the
lewdness of such a woman, the clause was struck out.
This law of divorce continued in force until the
fall of Napoleon, when with the Bourbons the old
order of things was restored. It was natural, or
rather necessary, that an attempt should now be
made to alter the law by abolishing divorce altogether. Of this important change the excellent
historian of the restoration, Louis de Viel-Castel,
thus speaks (Hist. de la Restauration, iv., 486.):
"The only proposition which did not meet with




SINCE THE REFORMATION.        167
serious opposition was that which had for its aim
the abolition of divorce. On this point the Assembly was unanimous, and it represented, if not
the unanimity, at least the general sentiment of
France. M. Trinquelague, the organ of the committee to which the examination of the question
had been referred, developed, in a carefully written report ideas similar to those set forth by M.
Bonald.  He showed that the proposition made
no attack on the religious liberty of the Protestants, since, if their religion permitted, it did not
prescribe divorce. He indicated the arrangements
to be made in order to remedy by legal separation
some of the inconveniences which the authors of
the Code Civil thought they saw in the indissolubility of marriage, and thus to determine in case
of separation the condition of wives and children.
The project of a resolution, voted without being
opposed, was sent to the Chamber of Peers. Two
bishops spoke there in its support. Another member, although he adhered to its principle and
made no formal amendment, asked whether divorce could not be allowed to non-catholics for
determinate causes, but that idea was set aside,
and the resolution was adopted by one hundred
and thirteen votes against eight. Transmitted
then to the government, and by it reduced to the
project of a law, it was definitively sanctioned by
the two chambers. The majority in the Chamber of Deputies was two hundred and twenty-five




18G DIVORCE AND DIVORCE LAW IN EUROPE
against eleven. In the hurry of accomplishing
what was regarded as a work of moral reparation,
time enough was not taken for regulating all the
difficulties to which separation substituted for
divorce would give rise."
In 1830 an attempt was made without success
to alter the law of divorce. Of this A. L. Von Rochau thus writes (Gesch. Frankreichs von 1814
bis 1852, 1, 329).: " Some other projects of law,
accepted in the Chamber of Deputies, met in
the Chamber of Peers with unexpected opposition. The first of these propositions aimed at the
reintroduction of divorce, which, under the Restoration, in mockery of sound reason and sound morals,
had been unconditionally prohibited in the name
of the interests of Christianity, the demoralizing
separation from bed and board being put into its
place, which leaves behind only the name of marriage, or rather a bald lie."  We are not aware
of any new attempt to alter the law since the discussions on this project, which were protracted
through several years, and ended in the retention
-the final retention, says our author writing in
1858-of the prohibition of divorce.
We close the present chapter with a brief sketch
of the history of divorce in England.
In the times when England was under the'Roman Church, the ecclesiastical courts had cognizance of marriage and its dissolution.  No
separations except a mensa et toro were known.




SINCE THE REFORMATION.          169
The same rules in regard to annulment of marriage prevailed, which are still in force in the
Catholic countries. The rupture of Henry VIII.
with Rome, and the subsequent progress of the Reformation, made no change in the law of marriage
and in the courts to which its execution was confided. Catharine of Aragon was set aside by sentence of an ecclesiastical court, because her relation
of sister-in-law  to the king was claimed to have
rendered their marriage null ab initio.  Anne of
Cleves was put away after betrothal, but without
consummation of marriage as it is alleged, on the
ground of precontract. Anne Boleyn and Catharine Howard were executed for treason, the treason
consisting in adultery, which dishonored the king's
person and injured the succession. About the
same time, the sister of Henry VIII., Margaret of
Scotland, got from Rome a separation from her
second husband, the Earl of Angus, on the pretext
of a precontract between him and another lady.
There came in, however, with the Reformation
and with the denial of the sacramental character
of marriage, an opinion that it was right in cases
of adultery for the innocent party to marry again.
In 1548, Queen Catharine Parr's brother,* the
Marquis of Northampton, wished to contract a
* Burnet's History of the Reformation (vol. ii., p. 56 of the
2d folio edition) gives a history of that affair, and an abstract of
Cranmer's investigations into the opinions of the fathers. A
number of questions were put to learned men, and their answers
are given in the collections, No. 20, in the same volume.
8




170   DIVORCE AND DIVORCE LAW         IN EUROPE
second marriage after the decision of the ecclesiastical court separating him    from  his first wife, a
daughter of the Earl of Essex, on account of her
elopement or adultery; and a commission was issued to Cranmer and others to inquire into the conformity of such a step with the Scriptures. Cranmer, having largely      examined    the matter, was
inclined to allow remarriage in such a case to an
innocent party.     A   few years after, in   1552, the
reformatio legum'ecclesiasticarum, drawn up principally by Cranmer, and approved by a commission
of divines and lawyers, proposed remarriage on
the ground of adultery and several other offenses,
but did not have the sanction of law, perhaps
because the Catholic reaction came on the next
year with the accession of Mary.*        The Puritans
in the church would have favored this change in
* Not having access either to the original edition of this code
of canon law published in 1571, under the oversight of Archbishop
Parker, nor to the Oxford reprint of 1850, we are compelled to resort to second hands. Lingard says that it allowed divorces on
account of adultery, desertion, long absence, cruel treatment, and
danger to health and life, and separation without liberty of remarriage on account of incompatibility of temper (iv., chap. v., p. 284).
Hallam (Const. Hist., i., p. 140) affirms that Lingard turns capitates inimicitice into incompatibility, which it certainly is not. The
code also punished adultery with imprisonment or transportation
for life, and in the case of the offending wife with forfeiture of
her jointure and of all advantages which she might have derived
from the marriage, while the offending husband was to return to
her her dower, adding to it one-half of his fortune. The clergyman gailty of this crime was to lose his benefice and his estate,




SINCE THE REFORMATION.         17'
the laws both then and afterward. Mieanwhile,
Northampton, having actually taken a second wife,
was at first parted from her, then was allowed by
sentence of a court to live with her, and finally had
his union legalized by act of Parliament. From
this time on, we believe, the received doctrine was
that a sentence of an ecclesiastical court could only
separate from bed and board, and that a special
act of Parliament was needed to authorize remarriage.
But for a number of years, although remarriage
after divorce was null and void, so that the issue
would not be legitimate, no civil penalties were
attached to it, and it was punishable only by ecclesiastical censures. Accordingly, many without
scruple married again after obtaining divorce in
the reign of Elizabeth. In the first year of James
a statute made remarrying, while a former husband or wife was living, a felony, and yet a provision of this act declared that it was not to extend
to any, who, at the time of such remarriage, had
been or should be divorced by sentence of an ecclesiastical court. At the same time several canons touching this matter were enacted by royal
authority, one of which provided that no persons
separated a toro et mnensa should, during their
joint lives, contract matrimony with other persons, and that the parties requiring the sentence
IHallam thinks that it was laid aside because public feeling was
against it.




172   DIVORCE AND DIVORCE LAW IN EUROPE
of divorce should give sufficient caution and security into the court that they would not transgress this restraint. Another canon required the
judge who should grant divorce, without observing these rules, to be suspended for one year by
the archbishop or bishop, and declared his sentence utterly void.*
A very remarkable case of remarriage, in defiance of these laws, occurred in 1605, between
Penelope Devereux, Lady Rich, and the Earl of
Devonshire, before known as Lord Montjoy. She
had had an adulterous connection with Montjoy,
and had borne him several children while the lawful wife of Lord Rich. Then, by an amicable arrangement between the parties, an ecclesiastical
court separated her from her husband, and she
immediately   married her paramour.      William
Laud, then the Earl's chaplain, solemnized the
marriage. Laud must have done this against his
own convictions of duty, and he kept the day as
a time of fasting afterward.t
The special acts of Parliament enabling a party
to marry again, while a former husband or wife
was living, were generally preceded by the decree
of an ecclesiastical court, but this was not always
* See " The Romance of the Peerage," by Prof. Craik, vol. i.,
Appendix, which rectifies several mistakes on this matter, and
from which we have drawn freely. For the case of Lady Rich
and the Earl of Devonshire, see the same work, vol. i., 273.
The same work notices the absurd plea made for Laud by Heylyn.
f For Foljambe's case see note on Chapter 4, in the Appendix.




SINCE THE REFORMATION.          173
the case. The Duke of Norfolk, without any such
prejudgment in Doctors' Commons, was, in 1700,
by act of Parliament, after evidence had been submitted, released from all connection with his wife,
having vainly endeavored to effect the same thing
eight years before, when his case seems to have
been made a party question. This adulterous wife,
after the dissolution of marriage, was married to
her paramour. There had been but one act before
this enabling an innocent husband to marry again.
The case was that of Lord Ross or Roos, afterward
Earl and Duke of Rutland. Here the sentence of
the ecclesiastical court had preceded the divorce
by act, the proceedings on which, begun in 1666,
were not dispatched until four years afterward.
Bishop Cosin seems to have aided the passage of
this act by several speeches in the House of Lords,
the substance of which is given in the State
Trials.*
It may be added that the House of Lords, in
trials before it, has not necessarily respected the
decisions of the ecclesiastical court. In the noted
trial of the Duchess of Kingston in 1770, she was
found guilty of bigamy, after her marriage to the
duke wearing that title.   This decision of the
Lords invalidated or overrode a decree of an ecclesiastical court, which, in a process of jactitation 
* Vol. xiii., pp. 1332-1338, where the proceedings in the Duke
of Norfolk's case are given on his last attempt to get an act for his
divorce. The proceedings in 1692 are found in vol. xii.




174: DIVORCE AND DIVORCE LAW IN EUROPE
of marriage, had long before restrained Augustus
John Hervey, afterward Earl of Bristol, from giving hilself out as her husband; for only on the
fact of a marriage with him her bigamy depended.
And in truth the decrees of the ecclesiastical courts,
being often made on mere ex parte evidence, or
procured by collusion, were deserving of no great
respect.
For a long time the Parliament was called on
merely to declare children born of an adulteress
illegitimate,* or far more frequently to dissolve
marriage on account of a decision in the court;
until in 1857 the law was remodeled and the jurisdiction in cases of divorce was changed.  The law
is quoted as 20 and 21 Vict., cap. 85, and was
amended, but not essentially, in 1858 and 1860
(21 and 22 Vict., cap. 108, and 23 and 24 Vict.,
cap. 144).  We have these laws before us, and
their leading provisions in regard to divorce are as
follows:
1. All jurisdiction of ecclesiastical courts in regard to matters matrimonial is henceforth to cease,
except so far as relates to marriage licenses, and
a new court is created, consisting of the Lord
Chancellor, the Chief Judge, and Senior Puisne
Judge of the three Common Law Courts, and the
* A case of an early date, where the injured husband asked
only this, is mentioned in State Trials, xiii., 1348.  Also Lord
Ross got such an act, before he obtained the other dissolving his
marriage. -Ibid.




SINCE THE REFORMATION.         175
Judge of her Majesty's Court of Probate.  Three
or more of these judges, of whom the Probate
Judge is to be one, shall hear and determine all
petitions for the dissolution of marriage, and applications for new trials of questions or issues before a jury.  This court is to be called the court
for divorce and matrimonial causes.
2. A sentence of judicial separation, superseding but equivalent to the former divorce a mensa
et toro, may be obtained by husband or wife on
the ground of adultery, or cruelty, or desertion
without cause, for two years and upward.  Then
follow provisions in regard to the way of obtaining
such a sentence; to the court, its rules and principles, which are to conform to those of the ecclesiastical courts; to the alimony of the wife, and her
status during separation; to the reversal of a sentence obtained during the absence of the other
party, etc.
3. Dissolution of marriage may be obtained by
the husband for the adultery of his wife, and by
the wife not for simple adultery, but for " incestuous adultery, bigamy with adultery, rape, sodomy
or bestiality, or for adultery coupled with such
cruelty as without adultery would have entitled
the wife to a divorce a mensa et toro, or for adultery coupled with desertion without reasonable
excuse for two years and upward.?" The case is
* Incestuous adultery is defined in the act to mean " adultery
with a woman with whom, if his wife were dead, the husband




176   DIVORCE AND DIVORCE LAW IN EUROPE
to come before the court on petition of the innocent party, with statement of facts; the alleged
adulterer is to be a correspondent to the petition,
if presented by the husband, and the alleged
partaker of the husband's crime is to be made a
respondent to the petition, if presented by the
wife, unless in such case the court order otherwise.
If the facts are contested, either party may have
a right to a jury-trial.
4. The court being satisfied of the facts, and that
there has been no condonation, collusion, or connivance at the crime on the part of the petitioner,
and no collusion with a respondent, shall decree a
dissolution of the marriage. But the court shall
be under no obligation to pronounce such a decree,
if it finds that the petitioner himself or herself has
been guilty of adultery during the marriage, or of
unreasonable delay in presenting the petition, or
of cruelty, or of desertion before the adultery, or
of misconduct conducing to such crime.
5. Appeal may be made from the Judge Ordinary to a full court, and from  such court to the
House of Lords, each within three months, unless
the recess of the house make a short extension of
the term for the final appeal necessary. When no
could not lawfully contract marriage, by reason of her being
within the prohibited degrees of consanguinity or affinity."
Bigamy is marriage to any other person during the life of the
former husband or wife, wherever that marriage shall have
taken place.




SINCE THE REFORMATION.       177
appeal is made within the prescribed term, or, if
made, effects no change in the original decree,
the parties may marry again, that is the innocent
and the adulterous party both; but no clergyman
of the Church of England and Ireland shall be
compelled to solemnize the marriage of persons so
divorced.
6. Several other provisions of the act are worthy
of mention. We have room only for the following: The old action of a husband for criminal
conversation is declared to be no longer maintainable, but the husband may claim damages from
the alleged adulterer, and the damages, or a part
of the damages recovered by verdict of a jury, may
be applied by the court for the benefit of the children of the marriage, or for the maintenance of
the wife.  When such an adulterer shall have
been made a co-respondent, and the guilt shall have
been established, the court may make him pay the
whole or any part of the costs. When the wife
is the guilty party and is entitled to property in
possession or in reversion, the court, at its discretion, may settle such property or any part of it
on the innocent party or on the children of the
marriage.
This law it will be observed, grants separation
for a small number of specific acts, and dissolution
of marriage for all adultery of the wife, but only
for adultery attended with aggravating circumstances on the part of the husband. In cases of
8*




17S  DIVORCE LAW SINCE TIIE REFORMATION.
separation it allows the possibility of renewed cohabitation by mutual agreement, although of this
nothing, we believe, is said. In cases of dissolution
of marriage it allows both parties to marry again
at once, and the guilty one to marry his or her
paramour, putting a premium thus on adultery,
unless the injured party is determined not to sue
for a divorce. In allowing the court to settle a
guilty wife's property on her husband or children,
it approaches a principle of the Roman law concerning dower. But it falls below the Roman law
in making adultery no civil crime, but only a private injury. It respects the consciences of clergymen in not requiring them to solemnize marriages
regarded by them as unlawful.   On the whole,
with serious defects, it seems to us to be an excellent law; it does honor to the Christian country
where it is in force, and it is certainly a great improvement on the former mode of regulating divorce in England. May the door never open
wider in England for the more censurable kinds
of divorce, nor the sanctities of domestic life
lose that reverence which they now possess!




DIVORCE LAWS IN THE UNITED STATES.  179
CHAPTER V.
DIVORCE AND DIVORCE LAWS IN THE UNITED
STATES.
WE propose, in the present chapter, to give some
account of the state of divorce in our own country.
A full view of this subject would embrace the law
of divorce, the procedure of the courts in such cases,
and the statistics of the subject. The last head
ought to include the number of applications granted, the causes for which they were granted, and
and the number refused. In this broad field the
materials are either too many or too few, or lie
outside of our appropriate province. The law of
divorce must be gathered from the statutes of a
great number of independent law-making bodies,
which are not unfrequently changing their legislation, so that supplement after supplement must be
consulted to find out what is the last wisdom of the
representatives of the people. The procedure of the
courts belongs chiefly to the domains of lawyers, and
is of use in our investigations only so far as it
affects the facility of obtaining divorce and opens




180       DIVORCE AND DIVORCE LAWS
a temptation to discontented husbands or wives.
The statistics are meagre; there are none known
to us of the number of rejected petitions save in a
single instance; and few of the States have published tables of the applications granted. The
great State of New York, for instance, still allows
this information to lie buried in the offices of the
clerks of sixty counties. It will not be strange
then, especially as statistical science is as yet new
and imperfect in this country, if our exhibition of
this part of the subject, although presenting some
important results, shall be judged to be iunsatisfactory. It is so to ourselves, and we regard
this essay rather as breaking a path for others,
than as having in itself a permanent value. May
we not hope that some member of the new and
vigorous society of Social Science will take up
this subject and bring to light something more
complete.
The first point to which we call attention, is
the divorce laws of the several States of the Union.
Here to avoid endless repetition we shall endeavor
to bring the necessary details under a few heads,
not feeling ourselves bound to do more than to
give examples from classes of States, so far as they
can be classified. No such details are furnished to
us from others, except the scanty ones in the notes
to Chancellor Kent's 27th lecture (vol. 2, 95-128).
Mr. Bishop, in his standard work on marriage
and divorce (4th ed., 1864), declines setting out




IN THE UNIrED STATES,        181
" in extenso the statute laws of our several States,
relating to marriage or relating to divorce. Should
this be done,' says he, " a great number of our
pages would be occupied with the work, while
very little benefit indeed would result to the reader. But it is observable," he continues: "that the
statutory law of this country, relating to this subject, seems in general to have been drawn up by
men who either did not possess much knowledge
of the unwritten law which governs it, or did not
regard such unwritten law as worthy to be considered by them in framing the statutes; and who,
moreover, gave but little thought to the matter of
the practical working of the statutes. The interpretations of these enactments, therefore, becomes
a subject of great difficulty."'  One of his proofs
of the truth of these remarks is taken from the
general statutes of his own State, Massachusetts,
where there is a provision (chap. 10T7 ~ 6), that a
divorce from the bond of matrimony may be
decreed for adultery or impotency of either party.
But impotency, to justify divorce, must be according to common law an impediment at the commencement of marriage, rendering it voidable but
not void, while adultery anterior to marriage is no
cause of divorce at all.  And again a sentence of
divorce on the former ground declares that the
marriage was originally void, but one on the latter
assumes that the marriage was originally valid.
Here there is a jumbling together of causes annul



182       DIVORCE AND DIVORCE LAWS
ling and causes dissolving marriage; and the same
is true of the laws of many of the other States
which speak of impotency barely, while other laws
are careful to define it as existing before marriage. I-How could such a provision be interpreted without a knowledge of common law? For
under some codes impote/ntica superveniens may
dissolve marriage, and more frequently a previous adultery renders remarriage unlawful, or
at least unlawful during the life of the innocent
party.
Coming now to the laws of the several States
we shall find that in some of the oldest ones their
origin has had important influence on legislation
down to the present time. iThe Puritans brought
English law with them, but separated from it in
the matter of divorce, by following, as they supposed, the rules of the NTew Testament. Adultery
and desertion were thus the only causes of divorce,
and from this beginning their legislation, following the analogy between desertion and certain
other kindred offenses, degenerated -until it lost
sight of the New Testament entirely. Other colonies adhered more nearly to English law, or, as
]laryland, may have been influenced by the
Poman Catholic doctrine of marriage and so confined divorce within narrower limits. Louisiana
has been subject to varying forces in the transition
from a dependency of France and Spain to the
complete American character.   In the newer




IN THE UNITED STATES.         183
States various concurrent influences may have
shaped the divorce laws, such as the views of some
prominent man among the earlier settlers, and the
origin, foreign or domestic, of large classes of
their inhabitants.
At first divorces were mainly, if not exclusively,
granted by an act of a colonial legislature in accordance with the practice then and until recently
existing in England. In the " general laws and
liberties of the Massachusetts colony" printed in
1672, there is no mention made of divorce. In
the laws published in 1699, the only provision we
find in relation to divorce is that all controversies
concerning marriage and divorce shall be heard
and determined by the Governor and Council.
Kent states in regard to more recent times, that
-the  constitutions of Georgia, Alabama, and
Mississippi allowed divorce only by vote of twothirds of each branch of the legislature after trial
and verdict of a superior court, or a court of chancery. But later constitutions have, in all these
States, rendered such actions of the law-making
body unnecessary, if not forbidden its exercise altogether. lie adds that in Maryland, Virginia, and
South Carolina, the legislature and not the courts
had power to decree divorce. In Connecticut and
New York, where the courts had jurisdiction, it
was not exclusive, but the legislatures of these
States occasionally made use of this power down
to 1839-1840. "In 1836 divorces a vinculo were




184        DIVORCE AND DIVORCE LAWS
granted by the legislature of Illinois, without any
cause assigned, and in 1837 by that of Missouri."
But the evils and the questionable right of such
special legislation have in great measure put an
end to it. Such special legislation is now prohibited by the constitutions of at least twentythree of the States, among the rest by that of
New York framed in 1846; and almost all the
recent constitutions contain similar restrictions.*
Yet this way of granting divorces has not wholly
disappeared. In 1865 an act of the loyal body
then claiming to represent Virginia divorced a
woman in Norfolk County from her husband; the
same thing took place in Maine last year (1867);
Pennsylvania still adheres    to  such  legislation,
within the limits of a constitutional provision
"that the legislature shall not have power to
enact laws annulling the contract of marriage, in
any case where by law the courts of the commonwealth are, or may be hereafter, empowered to
grant divorce;" and while we write there is a
petition before the General Assembly of Connecticut, to dissolve marriage in a case not included
within the general statute.   Such acts have occupied the ground as well of sentences of nullity as
*New York (const. of'46), N. Jersey ('44), Maryland ('57),
West Virginia ('61-3), Florida ('65), Alabama (?), Mississippi ( 32),
Louisiana ('64), Tennessee ('39-66), Texas ('66), Michigan ('50),
Minnesota ('57-58), Wisconsin ('48), Indiana ('51), Illinois ('47-48),
Iowa('57), Missouri ('65), Kentucky ('50), Kansas ('59), Nebraska
('67), Nevada ('64), California ('49), Oregon ('57).




IN THE UNITED STATES.           185
of divorce proper and of separation from bed and
board.  This is a broader field than the English
parliament went over in their special acts of divorce legislation, which never provided for any
other dissolution of marriage than the absolute
one. And yet in England the occasion for this
kind of legislative intervention was greater, and
the power to exercise it clearer. It has been contended that such acts violate the Constitution of
the United States by impairing the obligation of
contracts, that they are retrospective, and that.they confound the functions of the law-mnaker with
those of the judge. But if they merely declare a
contract broken, they do not impair the obligation
of contracts nor take the shape of ex post facto
legislation; and if they are confined to cases of an
extraordinary character, where the courts could
not well provide a remedy, they involve no confusion of governmental functions. Still they are
on more than one account undesirable.*
The States of the Union, if looked at with
reference to their divorce laws, may be divided
into those which provide both for absolute divorce
and for separation from  bed and board, and those
which know nothing of the last-mentioned proce* Chancellor Kent, Mr. Bishop, and others hold the doctrine
here given. Mr. Bishop (vol. 1, ~ 690) teaches that while such
acts are constitutional for the main act of divorcing, they can inelude no collateral matter, such as a direction for the payment
of alimony.




186       DIVORCE AND DITVORCE LAWS
dure. They may also be loosely divided into those
which have more closely followed English law,
and those which have multiplied the causes of
divorce without any precedent drawn from the
fatherland, if they did not long ag, start from a
standing point which was not English. Some influence on legislation in certain States may be due
to Scotch law, which grants divorce in cases of
desertion, and some perhaps to the laws of Germany. Louisiana has a position of its own, as
showing a marked influence of French law, which
is shaped to suit its peculiar condition.
We have examined the statutes of about twentythree States, including nearly all the older ones,
and in sixteen of these both absolute and qualified
divorces are now authorized. The States which
know nothing of separation from bed and board,
such as Connecticut, Ohio, S. Carolina, Indiana,
and, if we are not in error, Illinois and Missouri,
represent the earlier usage of the older colonies.
This separation by the civil code of Louisiana (ed.
of 1857) is necessary as a forerunner of divorce
proper, in all cases except where adultery or sentence of infamous punishinent is the ground for
the petition to the court. In some States separation from bed and board may be pronounced by
decree of court temporary or perpetual; it may
be revoked by a formal judicial act; it is generally
confined to certain crimes, such as cruelty or
drunkenness, or neglect to maintain a wife; but




IN THE UNITED STATES.         187
in other States, such as Rhode Island and Kentucky, it can be granted for any crime which is a
cause of divorce a vinczuo, if the parties desire it
and the court think fit, and for other causes according to the court's discretion. It may also be
followed in some States by divorce ca vinctlo, if
the parties are not reconciled within a certain
period, as five or ten years. These separations,
on the whole, must form a small part of the entire
number annually granted: in Massachusetts they
constituted, between 1861 and 1865, about onefourteenth of all the divorces, and they grow in
great measure out of the misconduct of husbands.
Of course the laws make provision for the support
of wives and children in such cases, but in some
States, as New York, Ohio, and North Carolina,
alimony can also be allowed to a wife without a
legal separation.  The laws of the last-named
State authorize the courts to decree divorce or
separation from bed and board, or alimony if no
more be demanded, whenever any just cause of
divorce exists, thus constituting a third grade of
release from married society as one defacto, without bringing it into the forms of jural separation.*
We proceed now to give a sketch of the leading
provisions of legislation in this country with regard to divorce in general, beginning with those
States which have kept closest to the English
* See Bishop, Book V., Chap. 30 and 31.




188       DIVORCE AND DIVORCE LAWS
usage. Here South Carolina may stand at the
head, a State in which no case of divorce ever
came before the courts, and no divorce was ever
granted by the legislature, and which, having had
with its old established church no ecclesiastical
courts, never granted separation from bed and
board. This state of things has continued until
the present time.  The new constitution, now
before Congress for its approval, ordains that
" divorces from the bond of matrimony shall not
be allowed but by the judgment of a court, as
shall be prescribed by law." As the structure of
society has undergone a vast change since the
outbreak of the rebellion, the State will ere long
probably differ but little in its legislation from its
neighboring sisters. The causes of the past attitude of South Carolina in regard to divorce have
been the original form of civil government, the
old established church, and State pride, which
long manifested itself in unwillingness to follow
the lead of others, rather than any strong religious
feeling or regard for the supposed doctrines of the
New Testament. As a slave State it has winked
at concubinage, and the white wife has often had
to endure the infidelity of her husband, as something inevitable, which no law could remedy, and
which public opinion did not severely rebuke.
"Not only is adultery not indictable there," says
Mr. Bishop, "but the legislature has found it
necessary to regulate by statute how large a pro



IN THE UNITED STATES.        189
portion a married man may give of his property
to his concubine" (i. ~ 38). From the same author
we quote the following words of Judge Watts, of
the State Court, delivered from the bench, showing that the jurists do not regard the system as
wholly good, and as deserving of all the boasts
which have been spent upon it. "In this country,
where divorces are not allowed for any cause
whatever, we sometimes see men of excellent characters unfortunate in their marriages, and virtuous women abandoned or driven away houseless
by their husbands, who would be doomed to
celibacy and solitude, if they did not form connections which the law does not allow, and who
make excellent husbands and virtuous wives still."
Here the law of 1 James I., making marriage,
while a wife or husband is living, felony, which
was adopted and inserted among the old laws of
the colony, is practically disregarded. Probably
this State has been freer than many northern
ones from those offenses against the laws of marriage in which the wife is a guilty party, for the
reason that the pistol or the dagger can work out
its own justice; but there has, beyond question,
been a plentiful crop of those other offenses on
the part of married men, in which persons of the
inferior race have been partakers and victims.
New York is another of the States which has
adhered somewhat closely to English law in regard
to. marriage and divorce.  Whether before the




190       DIVORCE AND DIVORCE LAWS
transfer of New Netherlands by the peace of Breda
from the Dutch to the English in 1671, the Dutch
law, allowing divorce for adultery and desertion,
was put in practice, we are unable to say, but from
that time until the rex olution no divorce was granted
in the colony, which had now come under English
law and the influence of the English Church. For
a dozen years from the declaration of independence
the legislature of the State had alone the power,
after the manner of the parliament of England, to
dissolve the marriage tie by an act of special legislation. In 1787 a law was passed authorizing the
chancellor to declare marriage dissolved, but only
in cases of adultery.  Afterward divorces from
bed and board were introduced: we find them
mentioned in the laws of the State published in
1813. The legislature still intervened by special
acts, but this power was taken away by the third
State constitution framed in 1846.  Amid the
changes in the laws and in the courts of this State,
the law of divorce and the procedure for dissolving the marriage tie has continued with very little alteration until the present time. Meanwlile
English law has been essentially altered, but the
changes have brought it into near resemblance to
the law of New York in almost all essential features.  Both still treat adultery as furnishing
ground for private action only.  But the New
York law has a decided advantage in the way of
protecting public morals over the English, as it




IN THE UNITED STATES,         191
prohibits the defendant found guilty of adultery
from marrying during the life-time of the innocent
complaining party.
Chancellor Kent has given us in his lucid and
attractive way an exposition of the law and procedure in cases of divorce, as they came before the
Court of Chancery, where he so ably presided.'We borrow from him and from the revised statutes
(5th ed.) those particulars which it seems important for our purpose to mention. 1. If the offense
of adultery is denied there must be a jury trial;
if the defendant suffers the bill to be taken pro
confesso, a referee must be appointed by the court,
and the cause must be heard on the proof taken by
him and on his report. 2. If the parties were
married out of the State, it must be made to appear that they were inhabitants of the State at
the time of the commission of the adultery, or that
the commission took place within the State, and
that the injured party was an inhabitant when the
complaint was brought. If the parties were married within the State, it must appear that the complainant was domiciled in the State at the time
of the offense and of bringing the suit. Other particulars, such as the actions of the complainant
which may be a bar in the way of the petition being granted, and the effect of the divorce on dower
* He died in 1847, shortly after the Court of Chancery, as distinct from the common law courts,'ceased, according to the constitution of 1846, to have existence




192        DIVORCE AND DIVORCE LAWS
and on the husband's right in his wife's estate, reappear in the laws of many other states and
need no especial mention.
The causes for which divorce from bed and board
may be granted are cruelty toward the wife, conduct rendering it unsafe for her to live with the
husband, desertion, willful desertion and refusal
to make provision for her support.     The cornplaints of the wife must be specific, and may be
dismissed if the defendant can bring forward her
ill conduct in justification so as to satisfy the
court.* If the court separates the parties, it may
provide for the support of the wife and children
out of the husband's estate, and even if no decree
of separation be made, such order for the wife's
support may be passed.   The decree may be perpetual or for a time, and may be revoked by the
court on joint application of the parties upon evidence of reconciliation.
The other States, which seem to have followed
English-or it may be Catholic-views of divorce,
such as Maryland and Virginia, do not now differ
essentially from the mass of their sister States; we
pass them by therefore to say a word in regard to
the state of divorce in Louisiana, as it is laid down
in the civil code (edition of 1857).  The code de* The husband may sue for divorce on the ground of the wife's
cruelty, but the New York revised statutes of 1830 gave this
remedy to the wife alone. But as the statute was not repealed,
it has been held to remain in force. Bishop, i., ~ 761.




IN THE UNITED STATES.        193
dares that " the law considers marriage in no other
light than as a civil contract," meaning by this we
suppose that it has nothing to do with the moral
and religious aspects of the institution. But when
it goes on to say that marriage is a contract intended at its origin to endure until the death of
the contracting parties, it seems a little inconsistent with itself, for whence can this indissolubility
be derived but from moral and religious considerations. If the law will regard nothing to be marriage but such a permanent relation, it must be
because concubinage for a time, although agreed
to by contract between the parties, has an immoral
character.  The law itself has these peculiarities,
that any offense for which divorce may be granted,
may also be the cause of separation from bed and
board; and that for every offense, excepting two,
this separation must precede divorce proper by a
certain length of time. These two causes of immediate divorce are adultery and sentence of infamous punishment; and by adultery in the case
of the husband is intended, as in the French code,
his keeping a concubine in the house, or openly and
publicly elsewhere. In other cases two years must
have elapsed, since the sentence of separation without reconciliation of the parties, before divorce can
be granted. The remaining causes of separation
mentioned in the code are cruel conduct, making life insupportable, abandonment, defamation,
and attempt of either party on the life of the other.
0




194       DIVORCE AND DIVORCE LAWS
A statute of 1827 ordains that no divorce shall
be granted except for adultery, infamous punishment, cruel conduct as above, and abandonment
for five years, in which case a summons to return to
the common dwelling must be made one year before application for the divorce. Are we then to
understand that defamation and attempt on life
can separate for a time, but not dissolve the marriage tie? As for the party guilty of adultery, it
is provided that he or she can never marry the
partner in crime, without incurring the penalty of
bigamy, and having the marriage pronounced null.
We pass now to the laws of the great majority
of the States, the leading characteristics of which
are to grant divorce, or it may be separation, for
a great variety of offenses, to take no account of
religious considerations, and thus to aim at removing difficulties, which arise between partners
in marriage, in a way which is revolting to the
mass of Christian people. Add to this, to a considerable extent, a great looseness of procedure, which,
in the extreme instances of it, opens the door to
greater evils than the laws themselves, if severely
applied, would produce.
These laws furthermore do not fairly represent
the original plan of colonial legislation. The older
States have in the course of time fallen far below
the strictness of their ancient laws, and the new
have started from the lower position on a downward road. It was natural for Maryland at first




IN THE UNITED STATES.        195
to be under the influence of the Catholic doctrine
of divorce, and for Virginia to follow the model
of England.  The Puritan colonies began their
legislation with two causes for divorce, adultery
and desertion, holding in common with their Scotch
and Dutch brethren, and indeed with the Reformed
Churches generally, as well as with the Lutheran,
that the New Testament recognizes both of these
as sufficient grounds for the dissolution of marriage.
Desertion at that time was a very different thing
from that which it is now. To go to some remote
colony, or to the West Indies, or to the old country,
from disaffection of mind, or with the spirit of
a vagabond, implied lifelong severance of family
ties,, and the probabilities were great that such a
step involved adultery also. To these two causes
was added absence for seven years in parts unknown without being heard of, which, in a law
of the Massachusetts colony passed in the 5th of
William and Mary, ismodified to suit certain hard
cases, into " three years' absence for one gone to
sea, the ship not being heard of for three years,
when a voyage is usually made in three months."
But this is not really a third cause of divorce; it
is only a declaration that the probabilities of death
were so strong that a new marriage after that
lapse of time ought not to be regarded as bigamy.
And, indeed, a law of the first year of James the
First, which lays down this same principle, and
fixes on this very term of years in applying it,




196       DIVORCE AND DIVORCE LAWS
must have furnished a model and an authority to
the colonists.  Such was the early legislation,
which continued substantially unaltered until after
the revolution shook and broke off the old traditions, and a new development of society began.
When now marriage came to be looked upon
more and more as a mere contract, when religious
and moral considerations were kept apart from
political, when legislation, perhaps in inexperienced hands, set about removing palpable evils without looking at remote consequences, when cities
with their peculiar vices and their low population
grew in size and number, when an emigration
from the Eastern States gave up its lands and
homes to an inferior class of society, and in the
West many of the foreign settlers had been trained
up under loose laws of divorce-when such causes
as these were acting, it is not strange that laxer
principles, touching the sanctity of marriage, crept
in and expressed themselves in legislation. But
aside from these social causes of change in the laws,
we must admit that there was a kind of logical
necessity for a broader system of divorce. If desertion was a good ground for divorce, it might be
asked why should not neglect to provide for a
wife, or refusal of cohabitation be such also, which
are kinds of desertion, or imprisonment for crime,
which is enforced desertion. Why should not
cruelty and intemperance be good grounds, which
practically break up the family union? And as




IN THE UNITED STATES.        197
there are other actions which lie on the borders of
these, why should not they be good grounds for
divorce, if the sufferer desires it? And so, for
aught we know, by and by, it may be argued that,
as the essence of the marriage, considered in its
spirit, is love, when this ceases, there is no good
reason why marriage should not cease at the pleasure of the parties. Thus we come to the Roman
practice, to the conception of marriage as a mere
contract, and to the principle that incompatibility
of temper or a new passion may legitimately put
an end to what even the Roman lawyers called the
individza vitce consuetudo.
It would be a dreary and profitless task, if we
were able to undertake it, to give even an abstract
of the laws relating to divorce of a large number
of separate commonwealths. All that we shall
attempt is to enumerate the causes, which authorize the dissolution of marriage in any of those
States of which we have not already particularly
spoken.
1. Adultery. This can be followed by divorce
everywhere, and the definition is substantially
the same throughout the States. It is, as the
statutes of Rhode Island define it, illicit intercourse of two persons, one of whom is married.
Certain States, as Alabama and Mississippi, in
their criminal laws punish living together in open
and notorious or continued adultery rather than
a single, act if brought to light; but we suppose




i Il 8    DIVOERCOE AND DIVORCE LAWS
that they would not depart, in the practice of the
court, from the ordinary definition of this country.
It is a singularity of the laws of one State that
the cohabitation of divorced persons subjects them
to the penalty for adultery.
2. Desertion. This offense is called by several
names, as " abandonment," " utter,' "malicious,"
" wilful and continued," "continued and obstinate"
desertion, —" absellce without good cause,"  abandonment and desertion."   The sense in all the
forms and expression is no doubt the same. Absence from the common dwelling and the society
of the wife or husband, not for the purpose of
business, but with the evil or " malicious intent
of not fulfilling conjugal obligations," and that
absence, not interrupted by occasional visits, but
continued long enough to test the disposition of
the offender, may be said to constitute the offense
thus described in different words. What the time
of continued absence shall be is generally indicated in the statutes. In Indiana it is " one year,
or less,"' if the court is satisfied that reconciliation is improbable, and in Mlissouri two years
without good cause. In four or five other States
it is two years (Pennsylvania, Michigan, Illinois,
Alabama, Tennessee), and three years in seven
others (Maine, New Hampshire, Vermont, Connecticut, Maryland, Georgia, Mississippi), while
* But by an act of 1859, "or less" and what follows is strickpe
out.




IN THE UNITED STATES.           199
five years-the prescribed time in Massachusetts,
New    Jersey, Virginia, and   Louisiana-is the
maximum fixed in any of our laws. The statutes
of Rhode Island prescribe five years or less according to the judge's discretion. In one or two
States there is no time specified, as seems to be
the case in New York and North Carolina.     In a
number of these States it is made to involve, if
proved, separation from bed and board, in others
divorce a viznelo, and in one or two the one or
the other according to the aggravation of the
offense as estimated by the court.  In Massachusetts desertion for five consecutive years may furnish cause for separation, and a libel in this case
is not defeated by a temporary return of the
deserting party, if it seems not to have been bona
Side but to have proceeded from an intention to
defeat the divorce. The wife, leaving the husband on account of extreme cruelty or neglect to
maintain her, does not desert him, and has her
remedy as an injured party. After separation
from  bed and board, if no reconciliation take
place, the originally innocent party can obtain a
divorce at the end of' five years, or either party at
the end of ten. *
* A curiosity of legislation is the act of Georgia, passed March
18, 1865, just before the Confederacy collapsed, to the effect that
divorce a vinculo, may be granted to loyal females whose husbands are in the service of the United States, or have been
voluntarily within the lines'of the enemy, giving them aid and




200        DIVORCE AND DIVORCE LAWS
3. Imprisonment for crime is absence or forced
separation, caused by the guilt of one of the parties, and preventing the filfillment of conjugal
and family duties.  For this reason, and perhaps
on account of the disgrace also, most of the States
regard this as cause for divorce or separation.
The length and the place of imprisonment and
the kind of crime are variously defined. In Massachusetts hard labor for five years or for life is a
good ground for divorce, and no pardon has any
effect on the sentence. In Maine imprisonment
for life dissolves marriage without legal process.
Vermont agrees with Massachusetts except in the
time of confinement, which is made to be three
years or more. In other statutes the punishment
authorizing divorce must be infamous, or for
felony, or in a penitentiary, and its length two
years, or not less than two, or for life.
4. In the statutes of a few States, as New Hampshire, Massachusetts, and Kentucky, joining a
religious society which holds marriage to be unlawful-together with refusal to cohabit with the
married partner for six months, as the law of
New Hampshire adds, in a somewhat ambiguous
construction of words-is made a ground for divorce. And accordingly there appears one case
of divorce from a wife for this reason in the lists
of divorces of Massachusetts during five years.
comfort. Compare what is said of a similar cause of divorce in
French law, in Chapter IV.




IN THE UNITIED STATES.        201
The law of this State prescribes that the membership in such a sect shall have lasted three years
before a libel can be presented, while that of New
Hampshire, if we understand it, reduces the time
to six months' refusal of cohabitation after joining
religionists of this description.
5. Neglect to provide for a wife's maintenance
or support lies between desertion and cruelty. So
this also is added in a number of statutes as a
reason for divorce, or for separation in those codes
to which separation is known. This is at one
time described as neglect or refusal of the husband to support the wife, when he has the ability
(Rhode Island), at another as a wasting of his
estate and neglect to provide for his family (Kentucky), or the refusal suitably to maintain a wife
(Massachusetts), or gross and wanton neglect to
maintain a wife (Michigan), or refusal to provide
for her (New York). This wrong of the husband
may involve separation in the last-named State,
in Maine, and in Massachusetts; separation, or, if
the court thinks fit, divorce in Michigan and Rhode
Island; and divorce in Kentucky.
6. Connected with neglect to provide for the
family and with cruelty also, are habits of intoxication, which are a cause of divorce or more frequently of separation in many of the codes. Sometimes this is described as habitual drunkenness
(New Hampshire and other States), sometimes as
gross and confirmed habits of drunkenness (Mlassa9*




202       DIVORCE AND DIVORCE LAWS
chusetts), while again we find in some codes a
specification of the length of time during which
the habit has lasted. It is three years' habitual
drunkenness in New Hampshire and two years in
Missouri. In North Carolina a statute authorizes
the court, if a man becomes a spendthrift or a
drunkard, to decree alimony without separation,
provided the creditors are not thereby injured.
7. In almost all the statutes which we have
consulted, cruelty, under some form of words or
other, is a cause for either absolute or qualified
divorce. Probably there is no code of any State
in which this does not appear. It is described in
such phrases as intolerable severity (Vermont),
extreme cruelty (New  Hampshire, Maine, and
other States), cruel and abusive treatment (Massacllusetts), intolerable cruelty (Connecticut), cruelty
and conduct rendering cohabitation unsafe for the
wife (New York); as cruelties endangering life,
and indignities making life burdensome (Pennsylvania), which the laws of North Carolina and
Tennessee substantially repeat, the first adding to
it turning the wife out of doors, the other, ejection.  Louisiana has much the same definition.
Tennessee further adds in her code attempts on
life by poison or other malicious means, which is
made a cause of divorce, while cruelties, indignities, and ejection are causes of separation.  In
Kentucky, the cruelty, or gross cruelty, is measured by the time: it must have continued six




IN THE UNITED STATES.        203
months; but another specification is added-cruel
beating or injury-to which no such continuance
is attached, so that a single act, for any thing that
appears, may be a sufficient cause of divorce.
In some statutes it seems to be assumed that the
husband only will be guilty of cruelty, as the
stronger party; in others, the expressions are indefinite, and may apply to both. What the view
of the courts is on this point may be learned from
Mr. Bishop's work (i., ~~ 761-763). In the list of
divorces granted during five years, published by
order of the legislature of Massachusetts, by the
side of one hundred and nineteen divorces or
separations, granted for cruelty of the husband,
there appear three for cruelty of the wife. Taken
in a wide sense, as including indignities and conduct rendering life unsafe, the remedy may be as
much needed in some cases by the one sex as by
the other.
Besides these causes for interference in the relations of married persons, some of the codes introduce others which occurred before the marriage,
and rendered the union either void and unlawful
altogether, or voidable if the complaining party
chooses to assert his or her rights. As these cases
have properly nothing to do with our discussion,
which is confined within causes for divorce oceurring after marriage, and as they are illogically
brought together with divorces proper, we may
pass them by. We may, however, notice those




204       DIVORCE AND DIVORCE LAWS
laws which prohibit marriage between a white
and a black person, or between a freeman and a
slave, as either now of questionable constitutionality, since the races are placed on an equality, or
as no longer having any application.
A few of the States have somewhat remarkable
provisions in their divorce laws, which deserve
particular attention, either as opening a wide door
of divorce or as putting the whole subject within
the discretion of the courts.  In the Revised
Statutes of Maine (1857), after causes for divorce
had been mentioned, as if the burden of specifying
numerous particulars was quite too great for the
law-maker or the codifier, we find it said that
divorce a vinculo may be granted by any justice
of the Supreme Court, at any term, in the county
of the residence of either party to the application,
" whenever, in the exercise of a sound discretion,
he deems it reasonable and proper, conducive to
domestic harmony, and consistent with the peace
and morality of society-if the parties were married in this State, or cohabited here after marriage."  In North Carolina, the statute, after
providing for certain special cases, adds, that if
6 any other just cause of divorce exists," the injured party may obtain divorce a vinczlo or
a mensa et toro, at the court's discretion, or a
decree of alimony only, if no more be demanded
(Revised Statutes of 1855). The law of Indiana
provides that divorce may be decreed by circuit




IN THE UNITED STATES.        205
courts, on petition of a ona fide resident in the
county, for certain causes, and then adds, and for
any other cause for which the court shall deem it
proper that a divorce should be granted. But the
action of the Circuit Court can be revised by the
Supreme Court (Revised Statutes of 1862). In
Iowa, the statute authorizes a divorce when the
fact appears " that the parties cannot live together
in peace and harmony, and that their welfare requires a separation."*  In Rhode Island, divorce
may be decreed for sundry causes, " and for any
other gross misbehavior and wickedness in either
of the parties, repugnant to and in violation of
the marriage covenant" (Revised Statutes). And
in Connecticut a well-known clause of a statute,
passed in 1849, allows divorce for " any such misconduct as permanently destroys the happiness of
the petitioner, and defeats the purposes of the
conjugal relation." The discretion given by some
of the laws in so important a matter must be very
embarrassing to the judge, and may result in the
most diverse usages, according as he has loose or
strict notions of the sacredness of marriage. The
looseness of others of these laws will, almost of
course, stretch the facility of granting divorce to
the extreme limit.
In Illinois,, the interpretation of the Supreme
Couit has taken away from the judges what seems
on the face of the statute to be a great latitude of
Bishop, I., ~ 832.




206       DIVORCE AND DIVORCE LAWS
discretionary power.  Besides the causes for divorce arising after marriage, which are fiveadultery, desertion, extreme and repeated cruelty,
two years' habitual drunkenness, and conviction
of felony or other infamous crime-the statute
empowers the courts to hear and determine all
causes of divorce not authorized by any law of the
State, and to decree a dissolution of the marriage
bonds, if judged expedient.  But the Supreme
Court has decided that the discretion given must
be limited to common law cases omitted in the
enumeration of the statute, viz.: precontract, and
ielation by blood or by marri'age. Applications
on these grounds are rarely made.*
A number of laws determine the time of residence in the State before a party can bring a libel
or petition for a divorce, and some others prescribe
what effect foreign judgments in certain cases are
to have within the jurisdiction of the States concerned. Both these points are of extreme importance, as emigration is so easy, and temporary residence in another State may be used for the purpose of obtaining a divorce not possible in the
State where the party had a previous domicil, and
to which he expects to return. The States are
naturally not willing to have their courts used by
foreigners, after a short sojourn, for the purpose of
effecting a divorce, and the difficulty of ascertain* A lawyer of Chicago, S. B. Perry, Esq., has kindly given me
this information.




IN THE UNITED STATES.        207
ing whether due notice has been served upon the
adverse party, when he is a non-resident, may
oftentimes be very great.  And, on the other
hand, as divorce is more subject to local law than
marriage is, so that by the law of nations noforum,
is obliged to recognize the validity of the divorce
law of a different religion or state of manners, it
will naturally come to pass that a State of the
Union will not feel itself obliged by courtesy to
allow a divorce granted in another State to have
effect within its territory, from which the parties,
being residents, or one of them, had gone abroad
for the purpose of obtaining the divorce. But
into the details of these matters we do not propose
to enter; they come within the province of the
courts, and the details into which they run must
be learned from extensive treatises built on the
decisions of courts, such as Mr. Bishop's commentaries. We only add, that a State like Indiana,
whose divorce laws are exceedingly loose, where
a year's residence qualifies a person to petition for
a divorce, where a case can be tried thirty days
after notices are published in a newspaper of tile
county where the suit is brought, and where
divorce fully frees both parties from the marriage
contract, opens a wide door as well for ex pacre
suits, where the defendant is ignorant of the proceedings, as for gross collusions, and loses its
reputation among its sister States. "' Nothing is
more common," writes a gentleman of high stand



208       DIVORCE AND DIVORCE LAWS
ing, living in one of the cities of Indiana, than
to form an acquaintance with some respectably
appearing gentleman or lady who has come a
stranger to our city, and learn soon after that the
object of the visit is to remain long enough to
apply for a divorce.  There is, however," he
adds, "a growing public sentiment demanding a
change."' The acts of 1859 indicate a slight influence of a better feeling. Abandonment is put
at one year, the clause'"or less, if the court is
satisfied that reconciliation is improbable " being
omitted. The petitioner must have resided-as
was said before-one year in the State; and
judgments concerning divorce are opened on behalf of non-residents.
Nor need we here do more than allude to the
obstacles put in the way of divorce by the laws
of many of the States, when some previous conduct of the petitioner furnishes a good reason for
the denial of his petition. Such conduct is-especially if adultery be the alleged cause of the
petition-the complainant's or petitioner's similar
infidelity, condonation, or indulgence shown in
cohabiting with the defendant after knowledge of
his or her offense, long delay to notice the offense
which is at length brought before the courts, or
connivance or collusion of the two parties. The
principles that dictate such provisions of law will
govern the courts where there are no express
statutes of such an import.




IN TiE UNITED STATES.             209
More important is it for our special object to
consider the results of divorce to the parties, the
liabilities or disabilities  and the  penal consequences, if any, which may follow the offense of
the guilty party.   Here, first of all, the way in
which the different States view tile sin of adultery
is deserving of notice.   Some, as New York and
South Carolina, have always followed England in
not considering it a subject of criminal punishment,
nor have we noticed it among thfe misdemeanors
mentioned in the statutes of Kentucky, of Tennessee, or of Louisiana.*    In some other codes
the penalty is very small-in Maryland it is a fine
of ten dollars; in Virginia, of not less than twenty.
In most of the States it is an offense subjecting the
parties guilty of it to fine or imprisonment, or
both, but the amount varies greatly.      The fine
generally falls between one hundred and five
hundred dollars; the imprisonment runs up from
confinement in a common jail of not more than
sixty days, as in Georgia, or not exceeding six
months as in Missouri and several other States,
to a year, which is the maximum     in most of the
codes, or even to five years, as in Vermont, Maine,
* In Mr. Livingston's code the guilty woman forfeits all matrimonial gains and certain leading civil rights. Her partner in
guilt is liable to a fine of between one hundred and two thousand
dollars, or to imprisonment not more than six months  A husband keeping a concubine is subject to the same fines, and loses
the right for a certain time of being a tutor or curator to his
children.




21]0      DIVORCE AND DIVORCE LAWS
and Connecticut. In a few States a repetition of
the offense increases the penalty. Alabama imposes in the first instance a fine of not less than
one hundred dollars, with imprisonment in a
county jail, or confinement with hard labor for
not more than half a year, while a renewed offense
between the same persons trebles the fine and
doubles the imprisonment; and a third transgression is visited with two years' hard labor in the
penitentiary. The laws of Illinois, again, which
impose on each party a fine of two hundred dollars, or six months' imprisonment for the first
offense, double or treble it for successive new
ones.
The feeling of the early settlers in some of the
older colonies was in striking contrast with the
tender treatment which adultery meets with from
existing laws in this country. The first laws of
Massachusetts made it a capital crime. By the laws
published in 1699, persons convicted of adultery
were set on the gallows with a rope round their
neck, one end of which was cast over the gallows,
then they were whipped on their way to the jail,
not exceeding forty stripes, and were obliged to
have a letter A, two inches long, "of color contrary to their clothes," sewed on the sleeve or back
of the outer garment, in open view. And if such
persons were found without the mark, they were
to be whipped not exceeding fifteen stripes for
each neglect to wear it. The Connecticut laws of




IN THE UNITED STATES.        211
1673 required the same brand to be burnt in on
the forehead, together with the wearing of a halter
and public whipping. In Rhode Island, in 1655,
a wife confessing her guilt was sentenced by the
General Assembly to pay ten pounds fine and to
receive thirty stripes in two installments.*  And
Vermont, although settled so lolig afterward, in
the original laws follows the older colonies of
Massachusetts and of Connecticut in its penalties,
which are thirty-nine stripes, or an A branded on
the forehead and the same mark on the clothes,
with a liability of ten stripes if the convicted person is found without it. In the statutes of 1787,
the brand on the forehead is omitted, but the
guilty persons are set on the gallows and are to
wear the mark on their clothing. So also in Pennsylvania, a law of 1705 exposed such persons to twenty-one lashes or a fine of fifty pounds for the first
offense, to the same number of lashes with seven
years' hard labor, or a fine of one hundred pounds
for the second, and for a third to a repetition of
the same penalties, besides the brand with the letter
A. In Virginia, again, by the law of 1691, a fine
of twenty pounds sterling was imposed for every
offense, but if the offender was unable to pay the
fine, thirty lashes on the back or three months' irnprisonment could take its place. In 1696 the
money fine disappears, one thousand pounds of
tobacco and a cask, or twenty-five lashes, or two
* Arnold's History of Rhode Island, i., 320.




212        DIVORCE AND DIVORCE LAWS
months' imprisonment being now the penalties.
In 1705 the statute omits imprisonment, but retains the tobacco and cask or the twenty-five
lashes.  Thus the Puritan, the Quaker; and the
Royalist colonies agree in the severity with which
they punish the crime of adultery.       But they
agree, also, in softening down their legislation on
that point. In Pennsylvania imprisonment for a
year, or a fine not to exceed five hundred dollars
now expresses the indignation of the community
on this point.  In Virginia, a fine of not less than
twenty dollars seems to be the entire penalty. In
Massachusetts, the crime is visited with a mulct
of five hundred dollars, or imprisonment in the
State prison for three years, or in a jail for not
more than two.     In Vermont the limits are five
years' confinement or a thousand      dollars fine;
while in Connecticut imprisonment for not less
than two or more than five years is the only penalty. It were well if these penalties were not
almost obsolete.  In the reports of the Commissioner of the State prison in Rhode Island, we find
in the course of twenty-eight years, one solitary
person imprisoned for that crime.*    And our impression is both that there is no peculiar slackness
* A gentleman writes from a State where the penalty for adultery is a fine not exceeding one thousand dollars, or imprisonment
not exceeding twelve months, as follows. " This offense is sometimes, but not often, punished by a nominalc fine, and in case of
negroes, I have known imprisonment added."




IN THE UNITED STATES.        213
in executing the laws in that State, and that everywhere public opinion does not den and the infliction
even of the pecuniary penalty. We are aware of
the difficulties attending conviction for this crime,
and the comparative innocence in some cases
of the nominally offending party; but surely
in the vast multitude of cases of divorce for adultery, many of which are blazoned before the eyes
of men with disgusting publicity, there must be
more deserving of punishment and capable of
being convicted than are ever brought to justice.
Meanwhile, private vengeance, unpunished and
excused, is taking the place of public law: it
would not be strange if more persons had been
put to death within ten years past by injured husbands than the law has caught with its very gentle
hooks. So it must ever be. Rude justice, violent,
lawless, excessive retribution fills a vacuum from
which the justice of society has leaked out. Let
society forbear to punish homicide, and bloodrevenge becomes an institution. Let it forbear to
punish adultery, and the aggrieved kill the offenders, not merely when caught in the act, which law
often authorizes, but on calculation and in cool
blood.
We are not aware that any other species of
injury done by one of the married parties to the
other is made penal, except so far as the same
kinds of wrong, on whomsoever inflicted, -re
punished by society.




214        DIVORCE AND DIVORCE LAWS
There are disadvantages in respect to property,
to which, especially when adultery is the ground of
divorce, the guilty party or parties, againlst whom
the divorce is issued, are exposed. Thus, according
to the law of Maine, when the wife is an adulteress,
the husband may hold both her personal estate
forever, and the real estate also of which she was
seized during coverture, it they had a living child
born during marriage, and if not, during her life,
in case he survives her.  But the court may grant
her so much of her real or personal estate as is
necessary for her maintenance.  Similar laws exist
in Miassachusetts, Rhode Island, and M:icligan.*
The law of Tennessee prescribes that the husband's
rights, if he is the complainant, to his wife's property shall be the same as if' mairriage had continued.  Others still leave the whole subject of
alimony to the judge's discretion, or fix a limit
beyond which it shall not reach, which limit,
where the husband is guilty, must not in Rhode
Island exceed half his real estate and half his personal. In Maine, if the husband is guilty, the
wife is to have dower in his real estate, as if he
were dead, and to have her own restored to her.
In regard to the power of the guilty party
to contract a new marriage, the States differ exceedingly. Some lay no restrictions whatever on
the liberty of divorced persons, so that, whether
* This law of Rhode Island refers to various kinds of offenses,
those of other States, we believe, to adultery only.




IN THE UNITED STATES.        215
complainants, or defendants, they are entirely free
to marry one another again the next day, and the
adulteress is free to marry anybody, even the partaker of her sin. Some of those States which in their
laws authorize separations from bed and board, leave
it to the parties-when the separation is perpetual
— to become reconciled and to come together,
while others put such reconciliation into the hands
of the court, as a formal and solemn act. The
following are some of the restrictions on the liberty of remarriage after divorce which we have
noticed in the laws of the older States. It is in
some of the States left to the courts to decide
whether the offending party shall marry again.
In Virginia a decree may forbid remarriage, but
may afterward be revoked for sufficient cause.
In Kentucky no such decree of remarriage can be
legally made within five years. In Mississippi the
law is as in Virginia, and in Missouri it is in any
case of divorce as in Kentucky, with the additional
proviso that the court may shorten this time of
probation, but that such order must be made in
a term subsequent to that in which the divorce
was granted. In several States cohabitation after
divorce brings on the parties divorced the penalty
due to adultery. This is the case in Massachusetts,
New Jersey, and Michigan. In others the offending party, or, it maybe, the offending party where
adultery furnishes ground for the divorce, cannot
marry during the life-time of the other party,




216         DIVORCE AND DIVORCE LAWS
Such a regulation we find in the laws of New York,
North Carolina, Georgia, and Massachusetts; in
which latter State such marriage, when unauthorized, ranks with polygamy in its penalty, but the
judges may give liberty of remarriage if they see
fit, on the petition of the guilty party, when the
crime is not adultery. Finally, Louisiana, following the French code, prescribes that the offending
party shall never marry the partner of his or her
guilt, on pain of bigamy and of having such marriage pronounced a nullity. On the other hand,
we have noticed no restrictions on the marriage of
divorced persons in the laws of Maine, New
Hampshire, Vermont, Rhode Island, Connecticut,
Pennsylvania, Indiana, Illinois, and Alabama,
while several of these States-Maine, Connecticut,
Indiana-expressly declare the parties free to
marry again.*
In looking back on the ground over which
we have thus far traveled in this Chapter we perceive that the number of causes for which divorce
may be obtained has been very considerably increased in modern times.    There is an increasing
* It is quite possible that errors may have crept into the sketches of divorce legislation which we have presented to our readers.
We have spent a good deal of time in consulting the complete
collection of statutes in the State House at Hartford, where the
State Librarian offers every facilty and assistance, but the hurry
of taking notes, without the facility of verifying them afterward
in cases of doubt, must bring with it more than one mistake.
We shali be happy if some charitable reader will set us right.




IN THE UNITED STATES.         217
desire to be free from the marriage bond on grounds
which were, of old, regarded as insufficient; and
an increasing willingness on the part of law-makers
to gratify such a desire, as well as an increasing
tendency to legislate on marriage as being a mere
contract, to the neglect of its moral aspect. On the
other hand, there is an impression in the mind of
many persons that divorces, at least in a number of
the States, are multiplying; that in a certain
stratum of society —shall we call it Protestant society? —the feeling of the sanctity of marriage is
passing away; that the highest crimes against that
covenant which stands as a symbol of the union
of Christ with his church, are either excused, or
regarded as things of course, or even laughed at.
Moral indignation, it is thought, no longer visits
the adulterer or adulteress; the more vulgar newspapers joke about the crime, and divorced persons
are no longer under that frown which met them
formerly, even when divorced for causes below the
greatest.
Is it true that divorces are increasingo  Is it
true that the number of them is at all equal to the
number in those states in Europe where they are
most freely granted? Is there any difference between the different States in the number of successful petitions for this privilege?
We propose to occupy the remainder of this Chapter with an exposition of the statistics of divorce
as far as the tables prepared in several of the States
10




2.18      DIVORCE AND DIVORCE LAWS
place them within our reach. We regret to say
that the materials are scanty. It is only of late
that tables of births, deaths, and marriages have been
begun in a portion of the States, while but a few
are going a little farther into social or moral statistics. Massachusetts has published one list of divorces for five years, which is clumsily prepared,
and leaves to the reader of it the work of counting
and registering. In Vermont and in Connecticut
the lists are more convenient, but in the latter
State the causes of divorce have not been published with regularity. In Ohio the eminent commissioner of statistics, who has recently been displaced,
Mr. Edward D. Mansfield, has prepared very useful tables. But in most of tile other States all
this information lies buried in the desks of the
county clerks, and no one, probably, has taken
the trouble to collect and make it known to
the world. Some tables may have been drawn up
with which we are unacquainted. Yet even ourinadequate materials will supply some valuable results.
In these comparisons we may as well confess
that we originally had the state of things in
Connecticut in view, and were desirous of ascertaining how far this commonwealth differed, in
one important department of morals, and in respect to one indication of social advance or decline, from its sister States. We were desirous,
also, of finding out, if we could, whether there
was any movement of divorce toward increase




IN THIE UNITED STATES.       219
or diminution in number, and whether the law
had any thing to do with such movement.  This
has been done once, and well done, by a friend of
ours, in an article in the New Englander, entitled "Divorce Legislation in Connecticut," published in July, 1866.*
At the risk of repeating what was there said
we must remind our readers that to the two original causes of divorce-adultery and desertionthere were added two others in 1843," habitual
intemperance and intolerable cruelty,' and that in
1849 a new batch of causes was superadded,
viz.: sentence of imprisonment for life, bestiality
or any other infamous crime involving a violation
of conjugal duty and punishable by imprisonment
in the state-prison, and-what we have already
spoken of-any such misconduct of the other party as permanently destroys the happiness of the
petitioner and defeats the purposes of the marriage relation. This last is generally known in
the State as the " omnibus clause." It appears
that after each of these advances in legislation
there was an increase of divorces, that the divorces
in 1864 were five times as many as in 1849,
although the population had grown by the addition of less than one-half, of which one-half Catholics, who did not swell the divorces, formed not
a small part; and that the " omnibus" clause,
* See note 5 on Chapter V., at the end of this volume.




220        DIVORCE AND DIVORCE LAWS
both directly and by its influence when other
causes were weak, aided the petitioners for divorces not a little.  Add to all this that after divorces are granted there is an unlimited license
of remarriage, and that there is little fear of prosecutions for adultery.  A  man and woman once
divorced may return to their old connection the
next day.* The adulterer and his mistress, the
adulteress and her paramour may be linked together in a union which they aimed, perhaps, to
make possible by their crime.   Herod and Herodias might live very comfortably under our laws,
unless the tetrarch Philip were malicious enough
not to sue for a divorce. Is it not time, if such
is the case, to see whether we ought to warn our
neighbors, or whether we had better advise them
to follow our example.   IHow, then do statistics
show that we stand?
The statistics we shall present under the heads
of the ratio of annual divorces to annual marriages, and, as far as we are able, to families and
to population, and shall then seek to gather any
lessons from them that they may convey.
In Vermont the ratio of annual divorces to annual marriages stands thus:
* A member of the committee raised to consider the subject
of divorces in 1867 stated that he knew a couple in a town near
his own who were divorced and married again a fortnight afterward, and obtained a second divorce on similar grounds with the
first in a very short time.




IN THE UNITED STATES.         221
Years.       Divorces.  Marriages.  Ratio.
1860,          94       2,179   1 to 23.2
1861,          65      2,188      "  33.7
1862,          94      1,962     "   21
1863,         102      2,00      "   20
1864,          98       1,804     "  18
1865,         122      2,569     "   21
1866,         155       3,001    "   19
Total,   730     15,710         21.5
In Massachusetts,
Years.      Divorces.  Marriages.  Ratios.
1861,         243      10,972     1 to 45
1862,         227      11,014      "  48.4
1863,         239      10,873      "  45.5
1864,         313      12,513          40
Total, 1,022     45,372      "   44.4
In Ohio (the years begin in July of the year
named).
Years.      Divorces.  Marriages.  Ratios.
1865,         837     22,198    1 to 26
1866,       1,169     30,479     "   26
1867,         975




222         DIVORCE AND DIVORCE LAWS
In Connecticut,
Years.        Divorces.  Marriages.    Ratios.
1860,           310       3,978     1 to 12.83
1861,           275       3,757       "   13.70
1862,           257       3,701       "   14.44
1863,           291       3,467       "   11.90
1864,           426       4,107       "    9.64
1865,           404       4,460       "   11.04
1866,           488       4,978       "   10.19
1867,           459       4,779       "   10.40
Total,      2,910     33,227           11.40*
From Prussia we have some materials for instituting a comparison between that country of notoriously loose divorce laws and the States named
abowse.   We   exclude the    Catholic  population,
which cannot be done with accuracy in the States,
* We give here from Rev. H. Loomis's article the divorces
from 1849 to 1859, with some other matter touching the state of
divorce in Connecticut. These tables are taken, as we understand, from the records in the several counties.
Years.    Divorces.       Years.   Divorces.
1849         91           1855       208
1850        129           1856       215
1851        165          1857        232
1852        159          1858        256
1853        186          1859        299
1854        216
In 498 divorces, 169 were granted on petition of the husband,
329 on that of the wife.
Of these 192 were granted before six years of marriage had
expired, 306 afterward.




IN THE UNITED STATES.        223
and thus the story which the tables tell is unfairly
in favor of the latter. For instance, in Connecticut, where the whole number of marriages was,
as before stated, 4,978 in 1866, the marriages, in
which both parties were of foreign birth, were
1,208. Now of these it is safe to say that twothirds, say 800, were Catholics, who rarely petition for divorce in this State. Deducting them
we have the ratio of one divorce to less than
eight and a half of so called Protestant or rather
non-Catholic marriages.
Prussia, in 1855. Marriages of non-Catholics,
8-,914; divorces, 2,937: ratio, 1 to 29.
Thus Connecticut is at the bottom of the list
altogether. The ratio of divorces to marriages is
here double what it is in Vermont, nearly fourfold that in Mlassachusetts, and much more than
double that in Prussia.  There are absolutely
more divorces in Connecticut, on the average, by
108 (viz.; 364 every year) than in Massachusetts, a
State with two and a half times as many inhabitants.
There were in 1866, more than half as many as in
Ohio, a State with almost five times the population.
It ought to be said that the divorces in several
of the States were unduly great in the year 1864,
and have been so since the war. The reason must
be that many hasty marriages were contracted by
soldiers; the motive being on the woman's part,
to get a share of the bounty, or the pension, if
the husband should be killed. But to counter



224       DIVORCE AND DIVORCE LAWS
balance this, the marriages, as always happens in
similar cases after a war have increased quite perceptibly, so that the ratio is not much affected.
In Prussia the comparisons are made between
the number of divorces and the whole number of
married couples, or between the divorces and the
whole population.  The statistics which have
fallen under our notice are the following, pertaining to 1838-1840.
Judicial district of Berlin,  57 divorces to 100,000 inhabitants.
"'    "    Frankfort, 30  "    ";
"  ";      Magdeburg, 35  "    "'
{'    u"   Konigsberg, 34  "   " 
(     "    Stettin,  36,  "    " 
"     "    Greifswald, 16  "   " 
In the Rhine provinces, among 600,000 Protestants, there were four divorces to 100,000 souls,
which last item shows that in a Prussian province,
where the general Code is not used, but the legislation is based on the Code Napoleon, and the
people have had a different juristic training, the
divorces are very few.  Or in other words the
Prussian divorce law encourages and multiplies
divorces. This is shown also by the tables for
other parts of Protestant Germany.   Thus, in
Saxony, in judicial districts, containing 900,000
inhabitants, taking the average of 1836-1840,
there were not quite 19 divorces to 100,000 souls.
In Electoral Hesse there were in 1835, 24; in
1841, 23; in 1851, 16; in 1852, 17; in 1853, 14




IN THE UNITED STATES.                225
divorces, which point to ratios varying between
less than 4 and 2 to 100,000.*
Our comparisons of these data with similar
ones in some of the United       States must be based
in part on estimates.      For Massachusetts, we follow Dr. Jarvis's estimates in the census of that
State for 1865 (page 206). Vermont adds to its
population so slowly that the United States census
of 1860 may be taken to represent the present
number of inhabitants. For Connecticut, we may
calculate on a yearly addition of two per cent.,
which is about the same increase which prevailed
between 1850 and 1860, but which may be too
small, so that the ratio would need to be slightly
reduced.t
* From Strippelmann's Ehescheidungsrecht, a valuable work
written by a lawyer at Cassel in Hesse, and published in 1854.
Our authority for the other German statistics is Viebahn's Statistik, part 2, published in 1862. The American authorities are the
annual reports of the Commissioners of Statistics in Ohio for
1855-57, a report submitted to the Legislature of Massachusetts
in 1856, embracing five years, from 1860 to 1864, the State Librarian's annual reports in Connecticut, which for several years
have by law embraced divorces also, and for Vermont the public
reports for 1860, 1861, and a manuscript detailed statement kindly furnished by Henry Clark, Esq., of Rutland, Clerk of the Senate of that State. Rev. W. W. Andrews and others have rendered us important assistance.
f This would give to the State nearly 5 28,000 inhabitants in 1867.
A calculation from the number of children in the school districts
for whom money could be drawn-of whom there were in 1860
105,460 to 460,147 inhabitants, and in 1867, 120,884-would give
about 537,000. But the ratio of children to the whole popula10*




226       DIVORCE AND DIVORCE LAWS
In Vermont, taking the average, as already
given, there is one divorce annually to 3,125
inhabitants, 33 divorces to 100,000.
In Massachusetts, there were, in
1861, 19.7 divorces to 100,000.
1862, 18.2    "        "
1863, 19.    "         "
1864, 24.8   " 8
In Ohio, in 1865, there were 33~ divorces to
100,000.
And in Connecticut, in
1860, 67.4 divorces to 100,000.
1864, 85.5;
1867, 87.5   "         "
But this, bad as it is, as we said, tells too good
a story, for our estimate of population embraces
all the Catholics.
In Prussia, again, as the following table shows,
the divorces are steadily decreasing, owing, as
Viebahn says, to the more " earnest treatment"
of divorces on the part of the civil and church
authorities. The table gives the number of divorces and of married couples at several intervals.
1818, 3,138 divorces, 1 to 517 existing marriages.
1822, 2,832  "     " 617 
1836, 3,291  "     " 593 
1839, 2,789  "     " 731 
tion is decreasing, hence the population may be regarded as
higher still in 1867. This would give about 85.5 to 100,000, instead of 87.5 for 1867, as stated in the text.




IN THE UNITED STATES.         227
1841, 2,714 divorces, 1 to 774 existing marriages.
1850, 2,920   "    "   798     "      "
1855, 2,937   "'   "   965     "      r
This, however, indicates not the married couples
among the Protestants, as it ought to do, but
through the entire population. To get at the
former, we should have to diminish the last list
in about the ratio of 16 to 10. Thus, in 1855, it
would be, instead of 1 to 965, 1 to 603.
We have no statistics of the number of married
couples in this country, but the number of families
is given in the last census of Massachusetts, and
the average there found, of 4.7 to a family, will
probably apply to the New England States in
general. Then we should have to deduct those
families at the head of which there is not a married pair, in order to make a comparison with
Prussia; but to perform this process we have no
data within our reach. The number of families,
however, in Massachusetts, in 1865, was 269,968,
and the ratio here would be for 1864 one divorce
to 862 families. In Connecticut for the same year,
there was one to less than 249 families.
Thus, Connecticut, according to all of these
measures of its position, occupies a bad eminence
among the States.*  We should be glad to have
* Indiana and Missouri certainly have no statistics of divorce,
and we suppose the same to be true of all the Western States.
A friend residing in Indiana estimates the annual divorces there
to be almost 2,000. If it be so, the ratio to the number of in



228        DIVORCE AND DIVORCE LAWS
it in our power to present more exact statistics
touching the ratio of divorce to families, for it is
the disease that undermines family life.    The
eminent commissioner of statistics for Ohio, in
his report for 1865, has some striking remarks on
this great social evil. The number of divorces for
that year was 837, which, says he, " at the present
population of the State, is 1 to 3,000 persons, and
1 divorce to 26 of the annual number of marriages. It is not a very pleasant thought, that,
when we look upon twenty-six couples of young
married people, we know that one of those couples
must be divorced. Yet such is the state of fact.
To begin with a marriage, we have these facts.
One of every 60 persons we shall meet on a road
will be married within a year. But as one-half of
the population are under the marriageable age,
and more than half the residue are married, it
follows that at least one in fifteen of all the marriageable people we meet will be married within a
year, or two persons out of each thirty of a
marriageable age, will be married in a year
-giving one marriage to each thirty.    Twentysix times that is 780; and thus two persons out
of 780, or one out of 390 of all the marriageable
habitants surpasses that of Connecticut. It has been lately
asserted in print that somewhat over 400 divorces were granted
in the city of Chicago within one year, 1868 we believe. This
is a great number; but the large towns far exceed the average in
this respect.




IN THE UNITED STATES.        229
people in the State, will be married and divorced
in a year. This is the ratio, although the actual
divorce will probably not take place for several
years."
A somewhat similar train of thought has occurred to us in regard to Connecticut, where, for
several years, one divorce has taken place to about
ten marriages. Deduct now the Catholics, deduct
also the better class of society, than whom a class
more observant of the family tie exists nowhere
on earth, and we shall conclude that out of every
seven couples that call themselves Protestants one
will be divorced, while according to Mr. Loomis's
tables in the New Englander, July, 1866, twothirds of the divorces will occur in less than six
years after marriage. And we believe that the
present law must bear the burden of this social
immorality.
But we cannot help adding one comparison
more. Dr. Dwight, in his sermon on divorce,*
says that when the flood-gates were opened at the
outbreak of the French revolution, there were,
according to the Abbe Gregoire, 20,000 divorces
granted in France in about a year and a half
Now, there were, it is said,in 1791, about twentysix millions of persons in France. Suppose now
that two-thirds of these divorces belonged to one
year. According to the rate in Connecticut in
1866, there ought to have been in France over
* Theology, Sermon 121.




230       DIVORCE AND DIVORCE LAWS
26,000, or according to the rate in France there
ought to have been less than 266 instead of 4S8
that year in Connecticut. If things go on so,
people will begin to wish that the lower classes,
among whom    now divorces principally prevail,
could come under Catholic influence.
We have little to add to this exposition. The
causes of divorce are given in the various reports
presented to the legislatures. Some of the information we annex. In Vermont, out of 571 divorces in five years, there were for adultery, 164;
willful desertion, 188; desertion, 60; intolerable
severity, 126; for refusal to support, 13; with 20
others, in most of which more causes than one
are mentioned. In Massachusetts, out of 1,294
divorces granted in about five years, there were
for adultery, 546, or 42.3 per cent.; for desertion,
589, or 45.6 per cent.; for cruelty, 122, or 9.4
per cent.; 15 for intemperance, and 21 miscellaneous. Here the large ratio for adultery is
startling. Can this represent the real state of the
case? In Ohio, out of 2,601 cases of which the
causes are particularly assigned, there were
granted for adultery, 935; for absence and neglect,
1,030; for cruelty, 440; for intemperance, 196.
For Connecticut, we add to Mir. Loomis's tables
those published by the State Librarian for 1866-7,
borrowing his remark in his report for 1866, that
the causes far exceed the number of divorces
granted. These causes are mainly




IN THE UNITED STATES.        231
1866.         1867.
Adultery,      158           118
Desertion,     193           153
Cruelty,        91            78
Misconduct,    177           190
Intemperance,   91            91
710           630' The foregoing table of causes is wholly unreliable," says the Librarian in his report of 1867, and
only so much seems to be deducible, that the cause
of " misconduct" under the omnibus clause of the
act of 1849, is exerting increasing mischief, helping out other grounds where they are weak, and
having a baleful because a most indefinite and
capricious influence of its own.
In Vermont, again, the husband is the libellant
in 266 and the wife in 315 cases; in Massachusetts,
if we have counted right, the husband in 428 cases
and the wife in 866; and in Connecticut in the
years 1866-67, the husband in just one-third, the
wife in two-thirds of the cases reported, which
were 810 in number.
Of the number of cases presented to the courts
and rejected-which if published might test the
strictness of the courts-we have no accounts, except that in Ohio, in 1867, 1,441 petitions canme
before the courts, of which 975 were granted, 245
dismissed, and 220 not disposed of at tie close of
the statistical year.




232         DIVORCE AND DIVORCE LAWS
Of the origin of the applicants for divorce we
have no items furnished to us, save that in Ohio
the counties where the Catholics form       a considerable part of the population fell below      their ratio,
while the'" Western Reserve counties have a much
larger proportion of divorces than the rest of the
State."   These    counties constitute    "New    Connecticut," the settlers of which came from the old
State.   The fact is significant.
IHas it not, we ask in closing, been made to appear that the laws of divorce in this country demand    a  thorough    examination, and, in      many
States at least, a thorough revision, but especially
in that State formerly the land of steady habits,
where    the   law  and the habits of the people
show the greatest degeneracy.* And are not all
the churches, all right-minded people, all Protestiants and Catholics, called upon to unite in a de* In 1867 a committee of the legislature of Connecticut reported an act touching divorce, which was not passed but referred
over to the next legislature as unfinished business. It contains
some remedies for the defects of the present law, but they touch
only minor evils. Section 1 requires, where the application for
divorce is ex parle, the testimony of two credible witnesses residing in the State, to the good character and residence in the State
of the applicant. Section 2 requires that no divorce cases shall
be heard in chambers or elsewhere than in open court and in the
regular court-room. Section 3 forbids granting divorce on the
ground of misconduct, until one year after the commencement of
the suit, and Section 4 forbids granting it for any other reason
until six months after passing the decree, which is to be void
unless the time for its taking effect be expressed therein.




IN THE UNITED STATES.        233
mand that there be some check on so great and
threatening an evil as that which we have spoken
of in this chapter. What the duty of Christian
churches is in regard to divorce, especially in their
discipline, and what are the leading features of a
good, or at least an endurable divorce law, we
intend to consider in our next and closing chapter.




234   DUTY OF THE CHURCH AS TO DIVORCE.
CHAPTER V1.
ATTITUDE OF THE CHURCH TOWARD DIVORCE LAWS:
PRINCIPLES OF DIVORCE LEGISLATION.
IN closing our essay on the subject of divorce,
we come to a very important field of inquiry; to
the relation, namely, between the view of divorce
taken by the law of the land and that which is
taken by Christian morals, and to the questions,
what are the obligations of the Christian Church
as to this matter, and what are the true principles of a healthy divorce-legislation. We shall
touch on these points in the order named with all
possible brevity, and not without the hope of
helping in some slight degree as well the cause of
sound morality as that of sound legislation.
Marriage, as the starting point of the family
and of the state,.s a divine institution established both in our nature and by positive precept,
and as involving the welfare of mutually dependent beings, has and must have important relations to religion, morality, and law. Religion
strives to throw a sanctity around it both by the
ceremonies with which it is solemnized, and by




PRINCIPLES OF DIVORCE LEGISLATION.  235
the guilt which is made to attach to adultery. In
other words, religion stands up in defense of the
morality of the family state, and this it does in
many heathen societies, as well as under the light
of Christianity. So also law starts from a feeling
of the sanctity of marriage; it is built on a moral
conviction at its very beginning. There are
sacred obligations which are violated by adultery
and must be protected. The question whether a
man can have more than one wife is determined
by the state of moral feeling in the community.
Divorce cannot in fact be separated from  the
ends and uses of marriage which lie within the
province of morals, and adultery cannot and never
has been regarded as a mere breach of contract.
And so the better the laws are, the more they
watch over and exact the fulfillment of those obligations to which marriage gives rise by bringing
new beings into the world.
Marriage is sometimes regarded as a contract,
and it is very common to draw false inferences
from the assumption that it is such. If it be only
a contract, it is natural to argue that it may
cease at the will of the parties, as for instance
after a certain number of years, or on failure of
having children, or when inclination for each
other has ceased; just as other contracts-those
of service, partnership, or loan for instance-take
the special form imposed on them by the contracting parties. Anid so, as contract is one of




236   DUTY OF THE CHURCH AS TO DIVORCE.
the commonest of the modes of intercourse, it has
been used to explain and to belittle both the
church and the state. It has entered into theology, and has put a covenant made by God with
Adam into the place of a great law of race and
a divine economy. The state has been built on
compact, made as if by men who had lived alone
before. In the case of marriage the particular
parties do indeed make a contract, but it contemplates an entrance into a special definite mode ot
moral and social life, which the contract cannot
essentially modify; just as the voluntary nature
of the church presupposes such an unalterable
type of church existence as Christ and the Apostles laid down, and as the state, in all its free
varying forms, presupposes the recognition of justice and the protection of the individual.
Marriage then is more than a contract, and
must be regarded by right law to have this nature.
So the Romans regarded it. The well-known
definition of Modestinus, the eminent scholar of
Ulpian at the beginning of the third century, as
well as the similar one of the Institutes which has
passed into canonical law, contemplates the perpetuity of the marriage union of one man and
one woman as essential to the nature of the institution. It runs as follows: Nuptise sunt conjunctio maris et fceminse et consortium omnis vitae,
divini et humani juris communicatio.*
* Comp. Inst. Justin, 1-9, ~ 2. "Nuptise sive matrimonium




PRINCIPLES OF DIVORCE LEGISLATION.     237
And from   the general principle contained in
this definition no legislation of Christian lands for
a long time together has diverged. It condemns
polygamy, it frowns on divorce.    The union of a
marriage pair must at least continue until a formal
act of the State shall pronounce it ended by some
misconduct of one of the pair toward the other.
But although Christian morality-and a state
where faith in Christ prevails will take fundamentally the   same view    of marriage, yet the
state may require in certain minor points that
which the church forbids, or forbid that which
the church either ordains or allows, or it may at
least allow that which the church disapproves.
The first procedure may be illustrated by the conflict between civil marriage and the sacramental
theory of the Roman Church.    The law of France,
and of other lands which have adopted French
views, requires all persons contracting marriage
to go through a form    of civil contract before a
magistrate, and then the marriage is legittinmum.
As for the rest, it leaves to their own consciences
whether they shall apply to the priest, the minister
of the sacrament, for the solemnization of their
union, so that it may be ractum  according to the
est viri et mulieris conjunctio, individuam  vits consuetudinem
continens." In the decree of Gratian, part 2, Cans. xxvii.,
Quaest. ii., c. 3, we have the definition " consensus ergo cohabitandi et individuam vitse consuetudinem retinendi interveniens eos
conjuges fecit. Individua vero vitse consuetudo est talem se in
omnibus exhibere viro, qualis ipsa sibi est, et e couverso."




238   DUTY OF TIHE CHUECH AS TO DIVORCE.
church view. The    Catholic Church has been
obliged to endure this, although it considers the
separation of the civil contract and the sacrament
to be inadmissible, since the contracting parties
are the administrators of the sacrament. And
with this feeling the Concordat between the Pope
and Austria, made a few years since, did away, we
believe, with the civil contract, which within this
present year the force of public opinion has restored to its former place in the laws.* So also a
state may prevent marriages which are valid
according to church law from  having validity
by civil law, as must happen if it admit into its
legislation a greater number of cases of nullity
than the ecclesiastical law recognizes.
But these cases of conflict between state and
church law are of minor importance, especially
in Protestant countries; the most common atti
tude of the state, outside of the thoroughly Catholic lands, is to sanction by its legislation that
which the doctrine of the New Testament and the
general sentiment of Christian churches condemns.
Here there is properly no conflict. The state says
to the church in regard to marriage and divorce,
you must take your own course and provide for
the purity of life and discipline by your own
measures. The state is not bound to extend its
legislation over all the departments of morality,
still less is it required to protect religion by puni* Comp. Richter Kirchenr., 6th ed., ~ 263.




PRINCIPLES OF DIVORCE LEGISLATION.  239
tive statutes. We do not, in societies which have
advanced far beyond the simplicity of the family
state, generally punish lying or drunkenness, or
filthy words or sabbath-breaking, or other outward offenses which a church may fairly notice
by its discipline.  Why is it obligatory on the
state in the case of marriage and divorce to follow
the strict rule laid down in the New Testament?
Were the state to require what Christian doctrine
forbids, or forbid what the church requires, it
would be tyrannical, it would be at war with a
power co-ordinate with itself, in the end it would
perish; but when it simply allows married persons to separate from one another for causes not
recognized by Christ, it lays no burden on tender
consciences, it comes into no conflict with religion,
it leaves the remedy against the evils of an imperfect moral code in the hands of the church, which
is the main support of morality in Christian lands.
We admit the justice of the position that the
state is not bound to forbid many things which
the individual may do in his outward actions
which are sins in the sight of God, and even injurious, on the whole, to society. There is a difference between doing this and legalizing what is
considered by Christian people to be contrary to
the law  of the New    Testament.   All that
they ask is, that, in the matter of divorce
the state should abstain from action; that it
should enact no laws making immoral separations




240   DUTY OF THE CEHURC  AS TO DIVORCE.
legal, and thus giving a bounty to immorality.
When the state imposes no penalty on drunkenness, or lying, or sabbath-breaking, its attitude is
simply negative. And here it does not cut off a
remedy, if, by either of these sins a man inflicts
an injury on others, as through violent assault,
or slander, or disturbance of the public peace.
But when it grants a divorce for a year's desertion,
for instance, or for misconduct destroying the
happiness of the marriage relation, its action is
positive. It removes from the obligations of the
marriage relation persons who otherwise would be
under them; it grants the power of marrying
again to persons who otherwise would have no
such power. Its action, therefore, is not at all
like its inaction in cases of individual immorality.
And there is, moreover, a difference between
the effects of the two. When sabbath-breaking
is not punished by civil law no one would infer
that the state thought it right, but, when divorce
is allowed for causes confessedly not sanctioned
by the New Testament, the state steps forward as
a teacher of an opposite morality from that of the
New Testament. Owing to the manifold relations
of marriage, as well to the civil condition as to morality and to religion, people will be very apt to feel
that divorce is perfectly right, and the influence of
bad doctrine thus taught by the state will run over
within the pale of the church, to divorce it from
Christ's law, to trouble it with many perplexing




PRINCIPLES OF DIVORCE LEGISLATION.  241
questions, to injure its discipline and its purity.
This must be true in Catholic lands, if the law of the
church and the law of the state are at variance;
how much more must it be so in Protestant or
mixed countries, where there is no such distinct
and sweeping law of church action as the Catholic
doctrine of the sacramental quality of marriage.
The law of the state, as it seems to us, can take
only one of two positions in regard to marriage:
either it must teach that it is neither bound nor
inclined to support Christian law, or that there is
such an inveterate leaning toward divorce, that
the evils from a stricter law would be greater than
those which attend the present loose one. That
this is a good ground for imperfect legislation, we
admit; but what a confession of impotence and of
a corrupt civilization to be obliged to go back to
the customs of a half-barbarous society like that of
the Jews under Moses, and to own that the ennobling conceptions of Christ, which must influence
law if they are generally entertained, have even
as yet no practical sway. Moreover, what if it
should turn out that the laws themselves, by their
own bad qualities, have multiplied divorces and
corrupted opinion. New York and Connecticut,
contiguous States, differ vastly in their divorce
legislation. Is there naturally any greater "hardness of hearts" on this side of Byram River to
account for this difference, or is it due to the unwariness and unskillfulness of legislators?
11




242   DUTY OF THE CHURCH AS TO DIVORCE.
But whatever be the attitude of the State, the
Church must stand upon the principles of the
New Testament as she expounds them, and apply
them to all who are within her reach. The minister, if his celebration of marriage be not a farce,
can no more join in marriage two persons who, in
his view, have no right to form such a union, than
he can aid any other immoral proceeding. Suppose the persons intending such a union to be a
woman put away for other cause than that of
adultery, and a man, whoever he be, to whom
our Saviour's words would have application"that he who marrieth her who is put away committeth adultery." How can the fact, that such a
union is legal, in the least degree justify a minister
of Christ in giving a religious sanction to an act
which he believes to be an adulterous one? Ought
he not to say, in solemnizing such a union, " whom
God hath not joinzed together let not man put
asunder."  Or can the minister take the ground
that he is merely an official person in solemnizing
marriage, whose duty extend only to the point
of throwing the influence of religion around the
commencement of a most important relation;
while the question whether the two persons who
ask for his blessing upon their nuptials have the
responsibility of deciding whether their union is
legal and Christian. But if he carried out this
principle he would be an official person, and
nothing more, in celebrating the Lord's Supper.,




PRINCIPLES OF DIVORCE LEGISLATION.  243
and thus any one who wished ought to have free
admission to the Lord's table. There could then
be no discipline, because, even in the case of gross
offenders, it must needs be left to themselves
whether they have repented or not. In the case
of celebrating marriage, the minister's duty is
comparatively easy. A specific act is requested
of him by persons whose past life is generally
notorious, whose former relations are matter of common fame, if there be any thing scandalous about
them. The question of what they think right is
of minor importance for him. He might as well
indorse a forged note on the ground that it must
be left to the conscience of the forger to decide
upon the morality of his act, as to help two persons
to enter into a union which he regards as adulterous, on the same ground. In the case of giving
access to all to the Lord's table, the principle in
question would be more justifiable, because in the
strictest churches much must be left to individual
consciences just at that point. But it is a false
principle in all ministerial acts, and would, if
allowed, destroy the purity, if not the life, of the
Christian Church.
The duty of the minister, in the case supposed,
seems to be clear. There is another and a more
important point to be considered in reference to
the duty of the Christian Church in the treatment
of those of its members, who, under the law of
the state, contract or dissolve marriages against




244   DUTY OF THE CHURCH AS TO DIVORCE.
the law of Christ. This we say, is the most important question, and it is so for two reasons.
The first is, that in all countries where a civil
marriage is required, or where-as in many parts
of this country-a marriage performed by some
civil authority, has the same validity as one celebrated by a minister of the gospel, the refusal
of the minister to act in a certain case has no
great bearing, since the civil authorities can take
his place. The minister satisfies his own conscience; perhaps he awakens discussion in his
parish, and that is all. But a loose, unchristian
habit of the Christian Church, or of Christian
churches in a community, in reference to marriage
and divorce, sets up an insurmountable obstacle
to the recognition and observance of Christ's law
of marriage. It excuses bad civil legislation; it
inculcates bad principles on the members of the
church; it fails to teach what it ought to teach,
what principles of discipline were designed to
teach. Practically it supports the state in its
attitude of disregard to Christian law. It thus
tends to break up the spirit of discipline, to put
to silence the voice of the church in favor of
holiness, and to take away its power of standing
up in the world as the main support of Christian
morals.
The other reason for the importance of this
inquiry in regard to the duty of the church, as it
respects divorce, is to be found in the occasional




PRINCIPLES OF DIVORCE LEGISLATION.  245
difficulty ot the questions which may present
themselves. Or, in other words, until state law
comes nearer to Christ's law, and until the churches
cease to regard the state law of divorce as their
standard of morality, multitudes of persons will
be entrapped into forming unions which Christ
forbids. These cases, and especially certain hard
cases, where the unchristian marriage was long
since consummated, may cause extreme perplexity
to such as desire to obey Christ, and at the same
time are aware how harsh and grinding invariable
rules of discipline must be, especially in a period
of transition from a loose neglect to healthy
observance of Christian rules.
We say " a period of transition," implying thus
that at present in this country Christian discipline
in the matter of divorce by no means attempts to
execute the law of the gospel. Is not this so?
HIas not the looseness in the matter of divorce
passed over from the state to the church? As
the one holds that its only concern in questions of
divorce is the maintenance of individual rights,
with a certain supervision of the welfare of society,
does not the other, to a great extent, refer such
questions to the consciences of the parties who
have, by divorce or by marrying divorced persons,
sinned against Christ's law? So far as we can
learn, all Protestant churches in this country are
loose and negligent in such cases. There are none,
indeed, that would not exclude adulterers from




246   DUTY OF THE CHURCH AS TO DIVORCE.
the communion, even though the State rarely attempts to inflict its slight penalties for this crime.
But there are few cases, we apprehend, where
persons legally married receive church censures,
however unchristian their relation mnay be, whether
judged by Christ's law, or by Paul's rule, as generally interpreted.  This slackness of discipline
may have arisen from the extreme rarity of such
cases among the members of the church: for a
long time there was no especial reason for deciding
what was the meaning of the commands given by
Christ or by his apostles,, since cases of divorce
within the church, if known at all, were for
adultery and desertion alone. Even after the state
abandoned the Christian position usually taken by
Protestants, the practice of divorce was confined
to the more unprincipled classes of society. The
church was thus taken unawares, and its lay
members, naturally thinking that divorce is a matter of state legislation, overlooking the religions
side of marriage and the precepts of the New
Testament, and regarding it in the light of a civil
contract, were prepared for any slackness of discipline which was not intolerable. The ministers,
we judge, are more enlightened than the laity,
and a reform in discipline may be more difficult
in those forms of Protestantism where " the power
of the keys " is intrusted to the congregation than
in those where the eldership and the minister, or
the latter alone, exercise this authority, according




PRINCIPLES OF DIVORCE LEGISLATION.   47
to a general law of the particular denomination.
Within a brief period, several cases have come to
our knowledge where ministers in Congregational
churches refused to sanction marriages of divorced
persons, and several others where the church sustained the looser view of divorce contained in
State law against the opinion of the minister, who,
in one instance, resigned his place on account of
the collision. In another case, an association of
ministers refused to recommend one of their number to another body, because, in their opinion, he
had put away his wife unlawfully. As the Congregational churches have always been comparatively strict in sustaining the discipline of the
New Testament, it is likely that they will be,
many of them, the foremost to restore it in case of
divorce, while others of them will be the last to
abandon a habit of slackness which the New
Testament condemns.
Our impression then is, that Christian churches
in this country do not stand where they ought;
that the cause of this, in part at least, is the insensible influence of bad State law; that the
ministers, as a body, are aware of the evil affecting
and threatening the purity and gospel order of
their churches, but that many of the laity within
the church overlook the law of Christ entirely.
It is cheering and a source of hope for the future
welfare of society, to observe that great bodies of
Christians are moving for reform and for return




248   DUTY OF THE CiHURCH AS TO DIVORCE.
to the old usage in respect to the discipline of divorce.  We have had occasion to know that for
some time many of the ministers of the Congregational churches in Connecticut have had their
thoughts turned in this direction.  The Episcopal
Convention of Connecticut held at Middletown,
in June, 1868, considered the same subject and
expressed their sense of the evil of existing State
legislation in decided resolutions.  The Methodist
Church, North, also, at their late triennial meeting in Chicago, embraced divorce within the
topics of discussion; and although no general law
of that church, as far as we can learn, was passed,
the attention given to this point is a favorable
sign.
But no action has been, as yet, so decided and
so promising for the future as that of the triennial
convention of the Protestant Episcopal Church,
which was held at New York in October and
November of 1868. The result of the discussions
in relation to divorce was the following canon:
"No minister of this church shall solemnize matrimony in any
case where there is a divorced wife or husband of either party
still living; but this canon shall not be held to apply to the innocent party in a divorce for the cause of adultery, or to parties
once divorced seeking to be united again."
It appears from the debates in the House of
Deputies, that some members-perhaps not a few
-were willing to go further, and prohibit all remarriage of divorced persons.   The canon ia



PRINCIPLES OF DIVORCE LEGISLATION.  249
poses no obligation on them to act against their
convictions.
This canon, which is, we believe, the first
legislation of the Episcopal Church in the matter in hand, repeats a resolution passed some
sixty years since. We rejoice in its passage,
while we make, in the way of friendly criticism,
several remarks, of which the first is, that the
canon allows the marriage of a guilty party divorced for adultery after the death of the innocent one, and that even to the partner in guilt.
Perhaps it was wise to say nothing of this
case which is noticed by ancient canonical laws.
2. It allows ministers to unite a divorced couple
a second time. But if they are still husband and
wife, why solemnize their union over again. Does
not the canon admit the validity of their divorce
when it authorizes ministers to unite them again,
or is there an intentional ambiguity in the word
unite, which can mean marriage or something less,
and so can suit various shades of opinions?
Furthermore, the canon would not only allow the
reunion to one another of persons divorced on
account of the adultery of one of the parties,
but also that of a divorced wife to her first husband,
even after the termination of a marriage to a
second husband by divorce or by his death. The
ancient church would not have disliked the reunion in the first instance, after condonation, yet
would never have thought of remarriage; while
11*




250   DUTY OF THE CHURCH AS TO DIVORCE.
the union supposed in the second case would have
been monstrous even to a Jew, and would have
"greatly polluted" the land. 3. In practice the
minister must generally be guided by the decrees
of the courts of law. But a decree in many of our
courts on the score of adultery, is no proof that the
crime was ever committed. 4. For the minister's
conscience the canon is an excellent one; but what
if the parties get themselves joined inl marriage by a
careless or unscrupulous minister of another denomination, and then appear in their pew or at
the Lord's table. What will the Episcopal minister do in their case? If they are not disciplined,
the canon becomes brutsm fulimen. But ministers may forbear to discipline, and so another
canon seems necessary to support the one already
passed.
But as long as the church follows the law of
Christ, and the state makes another law dissolving
marriage on slighter grounds, there will be
frequent cases of legal but unchristian divorce
and marriage. What is the duty of the church
when such cases arise in which one of the parties
at least is a member of the church, and amenable
to its discipline?
First, we may take the ground that the parties
in unchristian divorce and marriage have acted
according to their own views of duty, and ought
to be undisturbed. This might be a sound rule
of action if the rule in the Scriptures were not a




PRINCIPLES OF DIVORCE LEGISLATION.  251
clear one; if the churches had not formally reaffirmed the rule as their basis of discipline-as
we suppose them to have done-and if there were
no important social reasons for giving it all possible support. It is hardly conceivable that, when
the apostle bids the Christian wife, who has tor
certain causes departed from her husband, to be
reconciled to him or remain unmarried, he did
not take it for granted that a violation of this
command would be visited with church censures.
It is still less conceivable that when Christ calls
putting away a wife for any cause short of her
fornication by the name of adultery, he did not
intend that it should be treated as such, by his
church at least, if not by the state. For these are
tangible open acts, not like states of mind capable
of two interpretations, but ascertainable by the
ordinary rules of evidence. Moreover, the individuals concerned, after the church or churches
shall have taken a position, call no longer plead
ignorance or the excuse of legality. Add to this
that there is no barrier against bad law, no adequate protection of society within the sphere of
those relations with which both church and state
have to do, unless the church not only gives its
advice in the way of a general rule, but makes
use also of the single weapon of self-defense and
of terror to evil-doers that is within its reachexclusion from its privileges. Let the law not
forbid polygamy, and let a man with four or with




252     DUTY OF THE CHURCH AS TO DIVORCE.
many wives seek to enter the Christian Church.
Is not the benefit to society of a protest against
polygamy, and of a refusal to admit a polygamist
into or to continue him in the church so great,
that there could be no doubt how the church
ought to act in a case like this? Ought a change
of the law, which forbids more than one wiie, to
make Christians feel that discipline should be
slackened in such cases, or ought not this change
to be a reason rather for enforcing discipline?
We conceive, then, that no believer in the
gospel and in the duty of retaining purity among
believers, can dissent from our position, that in
cases of marriage and divorce where the Christian
law is violated, the church ought to interfereto prevent by its authority, and to censure by that
essential power of excluding unworthy members,
which belongs to all societies, even of the most
voluntary character. The Catholic Church is not
to be blamed for the ground it has taken in this
matter. Its law of divorce may have gone beyond
that of the gospel. Its system of prohibited
degrees is an addition to Christian morality, as is
confessed by the frequency of dispensations; but
assuredly it is not wrong in refusing to make the
law of the state its basis of action concerning
divorce rather than the law of Christ, nor in feeling itself called, whatever be the law of the state,
to educate the people and protect its own principles by ecclesiastical censures.




PRINCIPLES OF DIVORCE LEGISLATION.  253
But secondly, while recent cases of divorce or
of marriage with a person unlawfully divorced
may be of easy handling, when once the rules of
the church are distinctly laid down, there still remains a class of cases which call for a separate consideration. We refer to cases where the offense
against the Christian rule of marriage occurred
long since, where the parties in their irreligiousness only aimed to keep within the law of the
state, and have for years reputably sustained the
relations of man and wife, but now, having at
last felt the influence of the gospel, are seeking to
become members of some church of Christ. If
they had lived in concubinage, the case would
present no difficulty, for solemn marriage would
repair the fault, they might repent and do honor
to the sacred laws of morality by turning their
condition into one allowed by God and by Caesar
both. But in the case supposed, where the sin
of the individuals concerned was one of thoughtlessness at first, where the existing relation is not
only permitted but the severance of it is forbidden
by civil laws, what position shall the church take?
Shall it take the position of the Catholic Church
and require the entire discontinuance of their
union, at least until the death of a previous husband and wife, or the similar position of the extreme abolitionist, who, because slavery originates
in wrong, would require all slave-holders, under
all circumstances, to make their slaves firee or be




254   DUTY OF THE CHURCH AS TO DIVORCE.
cast out of the church?  Shall it, we say, take
this rigorous view of practical morality, or shall
it say that cases may arise, where, by a sort of
equity, the ordinary rule ought to be set aside, or
where there is a sort of prescription against the
original and in favor of the existing condition.
We confess ourselves to be of this latter opinion,
and to hold that the positive precept of marriage,
like some other positive precepts, must bend to
the necessities of the case. The peculiarities in
such extreme cases, where the marriage relation
is concerned, are due in part to the fact that marriage has a civil as well as a religious side,-that
the state may even forbid the separation of persons who ought never to have been united in marriage at the outset; and in part to the fact that
marriage itself brings the parties to it into a
unique relation, a relation exclusive, most intimate, and often involving the highest interests
of children. We take in fact the same ground
which the Catholic Church takes in regard to
prohibited degrees of consanguinity or affinity.
The general rule is valuable, but there may be
reasons for dispensation. As for prohibited degrees, the dispensation comes before the marriage,
but there can be no permission beforehand, no
consent of the church to such marriages as we
now have in view. Such consent can only come
afterward, when the married pair forsake a life
of ungodliness and seek the privileges of Chris



PRINCIPLES OF DIVORCE LEGISLATION.  255
tians. But the case differs from some which may
present themselves when heathen seek admission
into the society of Christ. A man must leave all
his wives except the first, or, at least, except one,
both because polygamy is directly opposed to the
spirit of the gospel, and because it would almost
ruin a newly founded church to allow part of its
members to have many wives while others have
but one. In the case, however, which we have
supposed, the couple continue with a Christian
spirit a union which began without it, they honor
the holiness of the church by repentance, and a
restitutio ad integrUm is impossible.
But it may be said that there is a very plain course
for parties, thus married against the strictness of
Christian law, to take. Let them separate and
lead a life of continence apart. This would be the
Catholic way of cutting the knot. But here there
are two obvious difficulties, the disaster to children
from breaking up the family state, and the perils
of an enforced celibacy. A better way, in our
judgment, where such peculiar cases arise, is to
consent to the state de facto.  It may be right
even for the usurper, in a certain condition of a
people, to continue his sway against all justice,
when his power has stood the test of years, and all
the relations of society hlave conformed themselves
to the altered state of things. The same holds
good in the case which we have been considering.
Let the church, whrile it cannot be a party to any




256   DUTY OF THE CHURCH AS TO DIVORCE.
violation of Christ's law, accept an old condition
of things within certain limits without seeking
to tear up or overthrow.
As long as the state legislates on one set of principles and the church on another, there must be a
conflict between the two powers, or else the church
must succumb, for the state has the outward
positive relations of life under its control. But
the two powers may be brought near to one another, so as at least not to come into frequent conflict
by the efforts of the church to teach the true doctrine concerning marriage and divorce, and by its
healthy discipline over its members. There will
then remain those pariahs of society who lie outside of all Christian influences and care nothing
for the sanctity of marriage, and those civilized,
refined heathens, who look on marriage as a mere
contract, or as a respectable kind of concubinage.
Even now divorce and marriage with a person divorced against the rules of the New Testament are
principally confined to these classes. It is for the
benefit of these classes, then, and in order to fulfill its office of purifying instead of corrupting
society that the law of divorce needs extensive
reformations and improvements. The Protestant
churches, if once awake to present evils, for which
State law and a low conception of marriage are accountable, can take care of themselves and of the
interests put into their hands. But how far ought
a reformation to be carried and at what ought re



PRINCIPLES OF DIVORCE LEGISLATION.  257
formers to aim? A Christian would be glad to
have an end put to all conflict and possibility of
conflict between the two authorities, to have
divorce or separation granted only on account of
adultery and malicious desertion, or for the first
reason alone.  In the present state of Christian
countries, however, this extent of reformation is altogether unlikely to be attained. In this country
especially, where the divine in government and in
social life is so generally overlooked, where doctrine
concerning the state and the relations of men so
generally takes the vulgar, apprehensible form of
contract, where the desire of speedy enjoyment
and the quick procurement of the means of it are
degrading the moral sentiments, it cannot be expected that reforms of our divorce laws will be
very thorough.  Law-makers will say that they
are not bound by the morality of the New Testament in their legislation touching rights and the
common welfare, that you may as well separate
two parties who hate and iljure one another rather than vainly strive to reach the inaccessible
ideal by your laws which the next legislature can
alter, and that strictness in prohibiting divorce
will not prevent social evil but will only force it to
pour its fiery floods by a new crater upon society.
~We are disposed to take the ground, therefore on
which alone the defects of the Mosaic legislation
can be justified-that the hardness of men's hearts
prevents a better system-and to inquire not what




255   DUTY OF THE CHURCH AS TO DIVORCE.
is the best possible law, but what are some of the
features of a law that is at once desirable and
feasible. It is a painful conviction which forces
us into this position, a conviction, impressed by the
history of divorce and divorce laws even in Christian civilization, that the strict rules of the New
Testament cannot be introduced into our law, or if
introduced, cannot long be enforced.*
A main feature of a good law will, of course, be
to hold out no inducement to a husband or wife,
who is dissatisfied with the present condition, to
get a divorce, in order to contract a new alliance.
Of course, the innocent party brings the petition
or libel, and is able by forbearing to do so to
prevent the other for an indefinite period from
carrying out his or her purposes. And, of course
the law-maker never intends to bring such a motive
before the discontented consort.  But the law
offers in fact a premium for divorce whenever the
disadvantages of such a step for the guilty party
are inconsiderable. We maintain, therefore, in
particular:
1. That the adulteress and the husband guilty
of adultery ought never to be allowed to marry
the partner in her or his crime. We are disposed
to go farther and preclude the guilty wife, perhaps
also the guilty husband, from contracting marriage
with any person whatsoever, at least until the
death of the innocent partner. In the projet of
* Comp. Stahl, Philos. d. Rechts II. 1, 364.




PRINCIPLES OF DIVORCE LEGISLATION.  259
the code civil, as it came before the council of
state, the adulteress could never marry again, and
the guilty husband could never marry his concubine. M. Tronehet having said that this prohibition for the woman could have a dangerous influence on morals, by furnishing an excuse for future
lewdness on her part, the law was amended so as
to enact that the culpable party in cases of adultery could never marry his or her accomplice.
(Art. 298.) We doubt the correctness of the conclusion while we admit that Tronchet has some
reason for his opinion. Granting that some women
thus branded by society will thus act, the question
recurs whether it is worth while to save them at
the expense of public virtue. Is it not better for
society that such a woman lose her ordinary right
by way of penalty-even as a citizen sometimes
loses his right of office or of suffrage by fighting a
duel or by bribery-than that the honorable state
of the matron be degraded by her participation in
its privileges. But, however this may be, we wonder that the law of England and a number of the
United States should put nothing in the way of a
divorced wife's marriage to her paramour. And
this is the more strange in those codes which, like
the law of Connecticut, impose the penalty of a
long imprisonment upon persons guilty of adultery,
while they permit such persons to marry whom
they will the day after divorce has been decreed.
The penalty is never inflicted, and the adulteress




260   DUTY OF THE CHURCH AS TO DIVORCE.
" wipeth her mouth " and takes the airs of an honest woman.
2. But again, adultery ought to be made penal
-as it is in almost all the States, and provision
should be made that the penalty should follow the
sentence of divorce without any other trial. This
suggestion will surprise some, perhaps, but it is
simply borrowed from the civilwcode. (Art. 298,
u. s.), "La femme adultere sera condamnee par
la rnme jugyenent —d la reclusion," etc. But the
authors and revisers of that well-considered code
did not contemplate a loose procedure like that
which prevails among us, but a careful trial, and
the same judgment which separated the parties
was followed, simply on the requisition of the public officer, by the imprisonment of the woman.
So also in the project of a law of divorce in which
Savigny had a part, it is provided that in decrees
of divorce for cause of adultery, the punishment of
the adulterous consort is to be pronounced, and also
that the court is to find out the partakers in the
crime as far as possible, and to hand over the evidence against such participators to the competent
criminal court, as soon as the decree of divorce is
passed.*
The question here arises whether adultery
ought to have the same definition for the man and
for the woman, and the same penalty, whichever
* Savigny, Vermischt. Schr. V., 378.




PRINCIPLES OF DIVORCE LEGISLATION.  261
sex is guilty. According to all the ancient codes
and many of the modern there is a distinction
made between the sexes, and the distinction affects
the law of divorce."  The crime is the same, except that it is justly regarded as a greater advance
in wickedness for women as a class to be unfaithful in the marriage relation than for men. The
harm done to society by such unfaithfulness is far
greater for the woman, when her guilt is, so to
speak, inside of the family, than when the father
of the family commits the crime. There are strong
reasons for making a discrimination in punishment
against the woman, and we incline also to set up
those limitations on divorce for a husband's adultery which appear, in the principle, in English law
and the French civil code.
3. In all cases of divorce, where the blameworthy party is allowed to marry again, such
marriage within a certain term ought to be made
unlawful. This will render it necessary of course
that the court decide, according to the evidence
submitted, which of the partners is blameworthy,
and it may happen that both are so in the same
or in different degrees. The Prussian law requires such a decision. Among us, as outward
specific acts are noticed almost exclusively, the
parties can hardly share the civil blame, and the
faulty party cannot have a decree in his favor,
* See what has been said in former chapters on the provision in
Roman civil law, French and English law, etc.




262   DUTY OF THE CHURCH AS TO DIVORCE.
with the seeming exception of cases where a wife
deserts her husband on account of ill-treatment.
But whoever can have the fault fastened on him
ought to be forbidden to marry for a considerable
period. According to the code civil this interval
is three years in the case of divorce by mutual
consent. Beyond question such enforced delay for
a considerable period would act as a very powerful
motive in favor of the good conduct of married
parties. This is shown not only by the nature of
the case, but by experience in the Rhenish Prussian
districts under French law, where although divorce
by mutual consent was allowed, only a very few
cases of it occurred during thirty-six years. We
believe that if parties divorced by the provisions
of the omnibus clause in the law of Connecticut,
could not marry again for two or three years, the
number of divorces would be greatly lessened.
Nay, if instead of that clause, the divorce by mutual consent were introduced into our code together
with the French limitation above mentioned of
three years, we should be much better off than we
are now.
4. Separation from bed and board without dissolution of wedlock may be resorted to in some
cases and as a temporary measure. This kind of
separation was unknown to the ancients, and owes
its origin to the Apostle's words-" but if she depart, let her remain unmarried or be reconciled to
her husband" —which refer, as we have given our




PRINCIPLES OF DIVORCE LEGISLATION.  263
reasons for supposing, not to separation for the
cause of adultery but for minDr faults. Being consistent with the doctrine that marriage is indissoluble and is a sacrament of perpetual efficacy, it
gradually superseded divorce a vinculo which involved the opposite doctrine. Since the decree of
Gratian was compiled, that is from about the year
1150, the only separation known to the Catholic
Church, and to Catholic countries fully obedient
to its law, is from bed and board for a longer or
shorter period: for life, it may be, in the case of a
woman's adultery; for a time, on account of smaller offenses against the law  of marriage. The
feelings of the Cathdlics, trained up for centuries
by their theory of the sacraments, ought to be
respected in the legislation of a country where religions live side by side on an equal footing.
Hence in every case where divorce is allowed by
our laws, either the petitioner who gains his point
ought to have liberty to choose separation a mensa et toro, or else the wishes of the two parties
ought to determine in this respect. The latter
appears in the present form of the code civil: " il
sera libre aux epoux de former demande en s6paration de corps." The former was contained in the
projet before it was amended: "L'6poux qui aura le
droit de demander le divorce pourra le borner a la
demande en separation de corps et des biens."
We should unite the two in this way: if the parties can agree, the decree of the coutrt may pro



264   DUTY OF THE CHURCH AS TO DIVORCE.
nounce a separation instead of a divorce; if they
cannot-as, for instance, in the case of mixed
marriage-the petitioner or libeler may decide.
For he, being the injured party, ought to have his
choice; and he might have continued the state of
marriage by taking no legal notice of the offense.
But it is questionable whether his power to put a
bar in the way of the other party ought to be
perpetual.
But aside from those instances where religious
scruples, fairly respected by the law, incline the
parties to qualified separation, we cannot help
feeling that this kind of divorce is liable to very
grave objections. Such separation is only defensible on religious grounds, and if it prevailed in
the law it would destroy the balance between the
civil and the religious weight of marriage, throwing the former out of the scale altogether. The
offended party has rights which he claims to have
been invaded, and demands reparation.  But the
law refuses him reparation, in order that the
offending party may be held to repentance. In
no other case of wrong is such a principle admitted. But a still greater inconsistency with
justice lies in this, that he is deprived for the
future, it may be for his life, of an important
right. He cannot marry again, because of the
wrong done by his partner. It is like chaining
a husband or wife to the corrupting body of a
guilty consort executed by the law's sentence. It




PRINCIPLES OF DIVORCE LEGISLATION.  265
is, moreover, a source of great temptation. Let the
sentence be that of lifelong separation for adultery,
which prevents the innocent party from   ever
marrying another person, or forces the two to live
together in a state of formal condonation, although
the wrong has destroyed all affection. Is it likely
that the majority of husbands would remain continent under that legal constraint, and cannot the
toleration of concubinage in Catholic countries
and the levity with which it is regarded be thus
in part accounted fbr?  And, still further, the
same cause will lead people to make light of
adultery, because the choice will be between a
separation which has no effect on the marriage relation and a winking at the grossest violations of
its sanctity? Will not the parties be tempted to
think that to continue as they are, with the allowance to each other of leading no very strict life, is
better than to make a noise about family matters,
which can have no other effect than that of giving
liberty to a married pair to live apart?
Such are some of the moral and jural difficulties attendant on separation from bed and board,
when looked at as a general substitute for divorce.
But the evils mentioned exist in but a slight degree when it is applied as a temporary measure
for those less grievous offenses against the family
constitution which do not preclude reconciliation.
Cruelty and drunkenness, which are offenses, for
the most part, of the husband, render the wife's
12




266   DUTY OF THE CHURCH AS TO DIVORCE.
state of life intolerable; desertion and crime, subjecting to a long imprisonment, break up the
family state. But the violent man, the sot, the
vagabond, the criminal, may be reformed: and
what better school call he be in than that where
he can feel himself to be repairing injuries and
recovering the love of a wife and of children.
Let the separation, then, be reserved for cases
like these, as a temporary expedient, until it can
be seen whether reform is to be hoped for. Only
then, after a long enough probation, if there
must be divorce, let the separation be turned into
divorce on petition of the injured party.  The
Massachusetts law allows this substitution, or, in
other words, permits remarriage, after five years
from the passage of the decree, on application of
the innocent party, and after ten years, on application of either party. In the code civil, power
is given to the party who was originally the defendant, in all cases excepting where the complaint is against the woman for adultery, " to
demand a divorce from the tribunal " after three
years of separation. This permission given to
the defendant, it is alleged, does no injury to the
other's conscience, for although this act makes
it free for him also to marry again, he may
still consider himself bound by the law of his
church.
5. The consequences of divorce, as it regards
property, ought to be such that the injured party




PRINCIPLES OF DIVORCE LEGISLATION.  267
shall sustain as little pecuniary loss or deficiency
in the means of support as possible, and the culpable party shall be deprived of the benefits which
the marriage or a marriage settlement placed
within his or her reach. This was the great motive
held out by Roman law, for although adultery
was punishable from the time of Augustus, the
penalty must have been rarely, if ever, inflicted,
and divorce on other grounds enjoyed impunity.
The arrangements in regard to this point are various in the different codes, and the adequate treatment of it would far transcend our limits. But
the general principle is not only that the innocent
and injured partner shall not lose the pecuniary
advantages formerly derived from the connection,
but also that, in gross cases at least, the offending
party shall actually suffer in his goods on account
of the wrong-doing. Something here must be left
to the discretion of the court; but there ought to
be some positive law directing and limiting that
discretion.
6. The same may be said of the custody, of the
children, if there be any. The general principle
here is that misconduct, which has broken up the
family state and made light of all household endearments, shows unfitness to take charge of the
children. They with the property sufficient for
their maintenance must be intrusted to that one
of the married pair who has been proved to be
most regardful of the family interests, or, in caso




268   DUTY OF THE CHURCH AS TO DIVORCE.
of such a person's incompetence, to some third
person.
7. The law ought to be specific and for determlinate causes, and little discretion should be left
in the hands of judges. To put the whole matter
under the control of the judges without any
specific legislation would, we are persuaded, be
fruitful of evil. The judges would vary in their
decrees-some granting divorce for slight grounds,
others being more rigid. In such a country as
ours, especially with an elected judiciary of short
continuance, they might come to represent the
public opinion, whatever it were, or there might
be such a pressure of the bar upon them that they
could not resist. Accordingly almost all our- codes
have been specific in their definitions of the causes
justifying divorce, and have left but little freedom
in the judge's hands. Few of our statutes indeed
give the courts too great power.   The great
error consists in the allowance of divorce for indeterminate causes, although neither of the parties
has committed any act that can be taken hold of.
Such causes are incompatibility of temper and
conduct which permanently affects the happiness
of the marriage relation. We have already called
the attention of our readers to the mischief which
the " omnibus " clause has worked in the State of
Connecticut. Such a law brings the judges oftentimes into extreme perplexity, for the happiness
of the marriage relation is a very vague thing,




PRINCIPLES OF DIVORCE LEGISLATION.  269
arid a thing capable of being painted in very false
colors by an interested party. It may be affected
by great and small injuries, by unkind words, by
lasting differences of policy in the management of
children, or by a husband's refusal to give a wife
money that she may dress ambitiously and above
her rank. It adds strength, as Mr. Loomis observed in his Article, to other weak grounds of
divorce. When a charge of habitual drunkenness
or of failure to support is not sustained, this plea
comes behind and props up a weak case. It tempts
parties to marry improvidently, and opens the
door through which they can escape from matrimony, for it amounts to not liking one another,
and the dislike is enhanced by the prospect offered to the hopes of one or the other of making a
more advantageous connection. Let the acts then
be palpable on which a decree of divorce is based,
and it the state of society is such that it shall
seem desirable to separate parties on such vague
grounds, let there be no dissolution, or at least no
immediate dissolution of the marriage tie.
8. The procedure in petitions or libels for divorce needs a great change in many of the States,
and the laws of the different States ought to be
brought into a substantial uniformity. With regard to the first point we leave reforms to those
who are better able to judge-to the better class
of lawyers who have no interest in encouraging
applications for divorce by looseness of procedure.




270   DUTY OF THE OHIURCH AS TO DIVORCE.
and who know what effect a change in practice is
likely to have. But any one, lawyer or not, must
be aware of the miserable state of things now existing in some of the States, and no one, who will
compare the careful, thorough law of the code civil
with most of our statutes relating to divorce,
will feel any great respect for American legislation. Let us be allowed to illustrate the state of
things by a single case occurring not a hundred
miles from where we write. A woman had been
married less than three months, when, on occasion
of her making evening visits or a visit with a
young man, her husband remonstrated, and high
words took place. She left him, and earned her
own living in another town. After about-three
months more she brought a petition for divorce,
and the grounds alleged were adultery, habitual
drunkenness, cruelty, and misconduct destroying
domestic happiness. The three first the lawyer
put in, it would seem, to strengthen his cause.
The adultery was with a person unknown to the
party complained of; habitual drunkenness was a
false allegation, and had it been true, drunkenness
for three months ought not to be regarded as
habitual in the legal sense; cruelty he had scarcely
a chance to commit. The man had, of course, a
notice served on him, but, as we suppose, did not
care to incur the expense, or to bring back to his
house a woman whom he conceived to have injured him, and who did not want to keep him




PRINCIPLES OF DIVORCE LEGISLATION.       271
company. The divorce was allowed by the court.
The woman apologized afterward for the charge
of adultery, and said that the lawyer put it in.
What went on the record we know not, but the
records are so made up that many false charges
appear on their pages.* We are persuaded not
only that they are unreliable, but that they tend
to give a false impression of the number of adulteries which are annually committed.      When the
judge thinks that possibly one or more higher
offenses may have given cause for divorce, and
that at all events the suit, if not the non-appearance of the party complained of, furnishes proof
of bad relations in a household, he will be apt, if
an omnibus clause permits it, to decide favorably
upon the petition.    And hasty examination of a
case, with pressure of an interested lawyer, may
not only break up a family, but put a permanent
stamp on a man's or a woman's character.
It has been suggested that in ex parte proceed* We add ex abundanti an extract from a letter written by a
legal gentleman in Indiana. [The seventh clause, to which reference is made, runs thus: "Any other cause for which the court
shall deem it proper that a decree shall be granted."] It frequently happens, says that gentleman, " that the petition, which
is not sworn to, contains several statutory cases, and perhaps
also states facts which could only be the basis of a divorce under
the seventh clause; and as the evidence is heard orally, and no
record is kept of it, probably in not one in five of the records
of divorces can the real ground of the divorce be obtained from
the paper with certainty."




272    DUTY OF THE CHURCH AS TO DIVORCE.
ings a state's attorney should ex officio be the guardian of the interest of the absent defendant.  The
laws of Indiana, where there are many such cases,
strive to make their peace with justice and righteousness by thus protecting the absent party, but
as the attorneys "' have no acquaintance with the
causes, their efforts are generally nominal."*
It would seem then that the laws ought to take
greater care both of the absent defendant's interests
and of him who is too poor to incur the expenses of
the suit.  We add that when the suit is not exparte,
and when the proceedings issue in a jury trial, divorce cases, at least on the complaint of adultery,
ought to be secret-that is, no report of them
ought to be allowed to appear in the public journals.
The prurient curiosity of bystanders and the right
of publicity do not weigh enough to counteract the
interests of morality.
9. At the beginning of the proceedings, as well
as in the course of them, attempts ought to be made
by the magistrates to reconcile the parties, at least
unless adultery be the thing complained of.   This
would involve a wide departure from our practice,
which hurries onward toward an irrevocable decree.
* We use the words of the same gentleman whose opinion
we have quoted in the last note.-Here we add that the Prussian
project of a new law, already referred to, proposed to constitute an
" Ehevertheidiger" or defender of marriage, whose duty it was to
appear in all processes relating to divorce, invalidity or nullity of
marriage, as the opponent of the party bringing the complaint.Savigny u. s. v., 35T7.




PRINCIPLES OF DIVORCE LEGISLATION.  273
The code civil by its delays favored reconciliation,
and where divorce was desired by the joint consent of the parties, required the judges to make such
exhortation to them, as would naturally lead them
to abandon their project. The Prussian code again
makes it imperative on the judges to attempt a reconciliation of the parties.  But the project for the
reform of that code, already referred to more than
once, goes farther still. It proposes that no conmplaint shall be considered until the competent
clergyman has certified that he has tried in vain to
bring back the married pair to a state of peace.
This may delay the case four months. Then, after
the proceedings in the case are begun before the
matrimonial court, the judges may institute new
measures tending toward reconciliation " as often
as they judge best, either directly or by commissioners, especially by the personal judge of the married
pair, with or without clergymen called into council." Measures like these would not be suited to
our state of society, but the principle must commend
itself to all. And if in the course of time those
valuable institutions, courts of arbitration or conciliation shall be introduced into any of the United
States, they might be usefully employed on complaint of the aggrieved party to look into the case,
to attempt to bring peace back into the household,
and if that be impossible, to report to the judge
whether there be prima facie ground for the
petition for divorce.
12 *




274   DUTY OF THE CHURCH AS TO DIVORCE,
The subject of divorce is complicated in this
country by the number of jurisdictions and the ease
of emigration. Just as a good paper currency
was impossible when every State licensed its own
banks, so it is with divorce laws. He who cannot
get what he wants under the severe laws of New
York, can become a free man by a short stay in
Indiana. The validity of a divorce there need
not, it is true, be always admitted by New York.
Yet the facilities for such proceedings are among
the worst parts of our system. Those who seek
to reform the laws in this important article, will
be bound to endeavor to stop those leaks which
loose legislation in one State occasions everywhere
else.
We have considered divorce legislation as immediately affecting the Christian Church, and as
affecting society outside of the company of professed Christians. But for the interests of the
Church of Christ it is not essential and absolutely
necessary that the laws in this particular should
be reformed. Indeed we may say that a greater
facility of divorce than now exists, that even the
allowance of divorce whenever the parties unite in
desiring it, would assuredly awaken men of Christian principles to the evils of society; the discipline
of the church would become stricter; and even in
a country like ours, where Christians are no corporate or united body, but an aggregate of persons belonging to different, and often jealous de



rRINCIPLES OF DIVORCE LEGISLATION.  275
nominations, where their joint action is almost out
of the question, the evils of society, the greater
they became, would the more rouse all those who
bear the name of Christian to a common feeling,
if not to concerted measures for their suppression.
Christianity developed the purest principles of
family life, and the noblest conception of marriage,
in the midst of Greek and Roman society, where
divorce was almost unrestrained, and under Jewish law, where, besides this freedom of divorce,
polygamy was tolerated. And this it did before
the sacramental theory was formed, and marriage
regarded as one of the sacraments.  So now, if
they have any vitality, that is if they are really
Christian, Christian communities can take care of
themselves. " Do your worst then," we say, " in
the matter of legislation. Make marriage in your
codes a contract which the parties can dissolve at
will, which either party can dissolve for very trifling reasons, which the State will dissolve for a
great number of wrongs. Let your laws punishing
adultery impose a penalty which nobody will mind,
and let them be a dead letter. You but awaken
then in the Christian communities an increasing
sense of their responsibility as the guardians of
morals; you only quicken in them the purpose to
introduce within their own pales a stricter discipline, and to seek to leaven society more with their
pure principles. Thus by your heathenish laws,
you arouse the sensibilities of conscience and the




276   DUTY OF THE CHURCH AS TO DIVORCE.
instinct of self-preservation in a society which has
immense power when once fairly in motion: you
practically throw society into the hands of new
legislators, and you will lead round a cycle of
things, when your laws will give way to stricter
ones, more consonant with the principles of morality, and when you will be looked upon as the enemies of social progress."
Greatly to be desired then as is a reform in divorce legislation, if the direct interests of religion
are considered, it is not for this reason absolutely
necessary, because the Christian Church can resist
and counteract, and more than neutralize the existing laws, however bad they may be. But such
reform is of immense importance, when we look
at the effect of legislation on the general interests
of society; when we look especially at those vast
classes who, even in a c,untry like ours, receive
no direct influence from Christian truth and the
Christian Church. What is to be done with and
for the lower classes of society, in a country like
ours, is one of the gravest of questions for the
mind of a benevolent man. In a country which is
mainly Protestant, the noblest things-the right
of private judgment, and the intellectual light
which always accompanies an open Bible-are a
" savor of death" to the neglected classes: they
are made self-confident, vain, uneasy, ready to receive the crudest falsehood, and to reject the most
venerable truths. Religion appears to them a




PRINCIPLES OF DIVORCE LEGISLATION.  271
restraint, and religious people they are jealous of
because these, in the natural order of things, get
above them. So liberty also is another "savor
of death " since they know not how to use their political right, fall into the hands of demagogues,
and become, as a class, a political power within
the State. Their cry is for freedom from restraint.
Free rum, free Sundays, free suffrage, free divorce,
and the like are their watchwords; and those who
expect to get into power by their votes, are often
afraid to contradict them, even if disgusted by their
principles. What is to elevate or purify these
classes? They stand aloof from the ennobling influences of religion; politics do not wash them clean;
their " little learning is a dangerous thing;" their
facilities for sensual gratification are less limited,
perhaps, than those of the working class in any
other land. There is no help for them, unless it lies
in the voluntary movements of Christian enterprise, teaching the knowledge of Christ, and with it
elevating the idea of family life. But loose divorce
laws corrupt family life at its foundation, for it is
hard for such persons to believe that what law
sanctions is not right. Here then the conflict, between low views of marriage and divorce and the
views contained in the New Testament, is waged
to the greatest sacrifice of the interests of society.
If one out of five or six of the marriages within a
certain class is dissolved by law, and the law with
the procedure in the courts almost offers a bribe tc




278   DUTY OF THE CHURCH AS TO DIVORCE.
get rid of a husband or wife, how is family life to
be sustained, how is it to have for that portion of
the community its venerable or holy character?
And the low conception of marriage tends to creep
up into higher circles, as some of this class, from
time to time, rise in respectability and wealth.
Since, then, reforms in the divorce laws are especially needed for the lower stratum of society;
since this class is most demoralized and corrupted
by the fatal facility of the existing laws; and since
it has in itself no power of self-recovery, when
once thoroughly debased; it becomes all Christian
and all benevolent persons, on their account mainly, to unite in an attempt to procure a reform in
the laws concerning divorce, to bring legislation
as near to the Christian standard as the people
will bear.* We do not conceive that a reform in
law would remove all the evils to which the marriage state is subject. Law cannot reform beyond
a certain point, because " it is weak through the
flesh."  But bad law can corrupt even more than
good law can purify.
But would not a strict divorce law defeat its
own end? It certainly might, and that in two
ways: first, by creating opposition enough to obtain an alteration of the law; and then, in a corrupt state of society, by tempting to sin within the
marriage relation, if a person cannot free himself
* See Note 6, Appendix.




PRINCIPLES OF DIVORCE LEGISLATION.  279
from its constraints. Yet it must not be supposed
that, if divorce were confined to cases of adultery
or at least to gross violations of marriage duties,
such more flagrant crimes would be multiplied.
This would be the case, if the law gave the adulterer the advantage of marrying again, but not if
it took away the right from him or delayed the
exercise of it for a term of years. And on the
other hand loose divorce laws do not prevent
adultery, as we have fully shown by the history of
Roman society under the emperors.
We entertain no fear then that a system of divorce laws coming nigh-gradually, if it must be
so-to the severity of the New Testament, will
defeat its own end, and only force the corruptions
of society into a worse channel. It is the defects
of our present system that are corrupting. A
system more in accordance with the idea of marriage could not, if accepted, fail to purify society.








APPENDIX.
NOTE 1 TO CHAPTER II.
On Certain Passages in the Epistles to Timothy and Titus.
THERE are certain passages in the first of Timothy and in Titus
which have a possible bearing on divorce, and therefore may
have a few words devoted to them in the present work. These
passages are 1 Tim. iii. 2, 12; v. 9; Titus i. 6. The two first
require the bishop or the deacon to be the husband of one wife;
and the third makes it necessary, in order that a widow may
receive the aid of the church, that she shall have been the wife
of one husband. The expressions are precisely similar. It has
been said, we are aware, that in the last passage the participle
yeyovvia is to be joined with "one man's wife," and accordingly
some editions of the Greek Testament put a comma after " sixty,"
which our version seems to favor by its rendering " having been
the wife of one man." But such rendering violates the sense of
yeyovvia, which could only mean "having become the wife of
one man," which is nonsense. The participle is taken with the
clause "not less than threescore years," and the sense is having
come to be threescore years old. Exactly so Luke writes, ii. 42,
"When he came to be (iyIvero) twelve years old," where we
have the genitives again. And so in classical Greek. Plato
says of his " master of education" (de leg. vi. 765 D.), " Let him
have reached the age of not less than fifty years," rSVv yey7ov(
uf/ e aorrov f 7revr?7uovra.




282                    APPENDIX.
The passage in 1 Tim. v. 9, then, is like the others, and may be
used to explain them. Two senses can be given to it. The first
is that the widow must not have had more than one husband at
a time. Now, as bald polyandry is not a thing to be conceived
of, if such were the sense, it could only mean that there must not
have been more than one person living at the same time, whose
wife, according to the point of view of the author, or of Christians
generally, she could have been called. In other words, she must
not have been married to one husband while another was living.
And so, after this analogy, we must explain'" one woman's wife"
to mean a man who could not be said, applying the Christian rule
of marriage to him, to have more than one wife (that is, one person who can be called his wife) living. No one was to be allowed
to say, that widow had two husbands at once, one a divorced,
and one an actual husband; that elder has two wives, one dismissed and one living with him. But there is in our view a
serious objection to this interpretation. We fall back therefore
upon the second. Tie widow must be a univira, the elder or
deacon a monogamus, in the sense in which that word (like bigaTnus, digamus) frequently occurs in the Christian Fathers, i. e., one
who never married the second time.
Now, why this rule of monogamy for the officers and widows?
It was not given because the writer of the epistle thought second
marriages unlawful, for he wishes to have the younger widows
marry. Nor, secondly, was it given because he thought celibacy
better than marriage for elders and deacons, for one must admit,
as it seems to us, that the strain of his argument leads toward
married elders rather than unmarried.  For if an elder had
governed his house well, it was a qualification for the eldershlip,
but if he had not had any household, howcould his power of governing be known. Nor, thirdly, was it given because the pagans
respected those who had married once, more than those who had
married more frequently. It is true that a univira, a chaste
widow, was held in honor as an example of virtue, but we do not
find that the same rule was applied to men. Nor, finally, can he
have had any ascetical tendency in giving out this rule. For this
asceticism, in its forms of prohibition of marriage and abstinence




APPENDIX.                      283
from certain meats, is pointedly condemned in the fourth chapter
of Timothy.
We can find no rule except one of these two, either that the
monogamy and monandry gave prima facie evidence of restraint,
or that a man or woman who had married twice or thrice would
be more likely to have avoided those alliances which the Christian
rule condemned, or, in other words, would be less likely to have
put away a married partner, or to have taken one put away by
another.
However we understand the passage, simultaneous polygamy
cannot have been thought of.*
NOTE 2 TO CHAPTER III.
THE twenty-second novell of Justinian was repeated for the
most part in the 117th, only in the latter the divorce ex communi
consensu was expressly prohibited, as stated in the text.  It
served, with that succeeding novell, as the basis of subsequent
legislation. The Basilicas, says Walter, u. s., ~ 315, repeat literally
the causes of divorce given in the novells of Justinian.  We
have no copy of this code in our hands, but have noticed in the
manual or Hoxabiblus of Harmenopulus. which has still authority
in Greece, that the title on divorce is almost entirely borrowed
from the source above mentioned. The freedom or rather laxity
of divorce held its ground almost unchecked in the Eastern
Church. It is remarkable; says Walter (u. s.), to see how Balsamon and other Greek canonists slip over the conflict of these laws
with Scripture and tradition.
The twenty-second novell first made a discrimination between
various kinds of divorce. The general statement (in chap. iv.)
is this: "some marriages are dissolved during the life of the
contractants by the consent of the parties, about which there is
nothing that needs here to be said, since the parties arrange the
* Most recent interpreters and some of the Fathers explain these texts as
we have done. Mathies and IIuther, in Meyer's series, give a little different
turn to them. The latter, on 1 Tim. iii. 2, makes the sense to be that the
bishop has lived, or lives, with no woman in sexual intercourse except with
his lawful wife.




284                     APPENDIX.
affair as seems to them best, others on a reasonable pretext (Kara,rp6baac.v eXoVyov, per occasionnem rationabilem), those namely
which are called bond gratid, others again without any cause, and
others still for a reasonable cause."
The bond gratid divorce is so named according to Wachter (die
Ehescheid. bei den Rom., 223, u. s. w.), whose remarks we here to
some extent adopt, for the first time in this novell. It stands between divorce by common consent and divorce on account of fault
of one of the parties. It agrees with the first in this, that a certain sort of agreement of the parties is necessary, and with the other, that it is for determinate reasons. Its essential characters are
the following: 1. No libellus repudii, it is probable, was necessary. 2. The divorced party was content, i. e., did not oppose the
transaction. 3. It was not obtained for crime, but for certain
misfortunes of the divorced party.  These were impotence for
three years, from the time of marriage, instead of two years, as an
earlier law had it (cap. 6); captivity, which according to the old
jus postliminii dissolved marriage of course, even if the captive
returned, but now was to continue for five years ere divorce could
take place (cap. 7); reduction to the state of slavery by sentence of
a judge, which could only happen in the case of a freedman (cap.
9); absence of the husband in the army for ten years to send any
word to his wife or reply to her letters (cap. 14); which may be
compared with a law of Constantine mentioned in our text; and
the choice by either partner of a monastic life. In all the cases
here mentioned except the last, each party takes back what property was brought by him or her into the partnership-the husband the antenuptial donation, the wife the dos. In the last
case the party remaining in the world was to have whatever, according to the marriage contract, he or she was to have in the
event of the death of the other (cap. v.).  To these cases of
bond gratid divorce Wachter adds sterility, not mentioned but in
force before and not set aside by the novcl.
The divorce for a good reason contains the same causes of divorce as the law of Theodosius II. referred to in the text, to
which this novell adds three others against the woman: procurement of abortion, bathing with men wantonly, and taking steps




APPENDIX.                     285
to contract another marriage while living with her husband. In
all these cases the innocent party has the dos and the antenuptialdonation both. In no case where the woman is the innocent
party is she permitted to marry again within a year (cap. 15,
16).
The only other feature of this law which we notice is the
sanction given to marriages which were without dos or donation.
If a man having married a woman on such terms expels her
afterward from his house, he is required to pay over to her a
fourth part of his substance-up to a hundred pounds of gold.
Such marriages, being begun with no contract, would be regarded
as unions with concubines, and so needed protection. (Cap. 18.)
The dissolution of such marriages, however, infact dissolved them
in jure, so that the woman, if in fault, could yet marry after five
years, while, if her husband was in fault for the divorce, she
needed to wait only one year propter seminis confusionzem.
In examining Roman legislation touching divorce, one cannot
but be struck with the toughness of the old legislation, how hard
it was to get it out of the old ruts, and what an uphill work it
was for Christianity to convert and remodel law.  Probably the
difficulty was far greater than to infuse Christian ideas into a
semi-barbarous people, and for this reason, among others, that
the Roman looked on his system of law as something majestic
and imperial. Yet a mean idea lay at the bottom of marriage.
Money was its soul.  Dos and donatio ante or propter nuptias
play their part until one gets disgusted.
The late distinguished Frenchman, Troplong, in his excellent
essay on the Influence of Christianity on Manners in the
Roman Empire, devotes a number of pages to the subject of
divorce. Prof. C. Schmidt, of Strasburg, takes up the same subject in his admirable essay which won a prize from the French
Academy. But the results are not very satisfactory. Beyond
all question, Christianity purified the conception of marriage
among Christian believers, and the influence of the idea extended
somewhat through society and naturally influenced legislation.
But in the matter of divorce it encountered old habits which resisted it with an immense obstinacy, and so from Constantine on



286                    APPENDIX.
ward we see divorce legislation swinging to and fro as if the
two forces could never consent to any stable equilibrium.  The
most striking instance of this-we believe that we have not mentioned it elsewhere-is furnished by a novell of Justin IT.-the
140th. After Justinian had abolished and made penal divorce by
joint consent,-divorce, bond gratid, as this novell by an abuse of
terms calls it,-this foolish emperor brings it back again, basing
his alteration of the law of his predecessor on the quarrels which
grew up between husband and wife.   "For if," it is there said,
" the state of feeling of the parties creates marriage, with reason
the contrary disposition dissolves it by consent of the parties."
Which proves too much, for the loss of love of one only ought, on
those premises, to bring it to an end. This novell of A. D. 566
was set aside by the subsequent divorce laws of the Basilice.
NOTE 3 TO CHAPTER III.
Some Notices of Divorce Laws in the Middle Ages.
TITERE are numerous proofs that the strict rule of the indissolubility of marriage met with obstacles in its way toward universal
recognition. The laws of the Germanic and Scandinavian nations
were, as might be expected, at first willing to grant absolute divorce on a variety of grounds; Roman law had some influence on
barbarian law in this direction, after the breaking up of the
empire; and in some countries the ecclesiastical synods were
willing to tolerate departures from the church rule already
tolerably well established.
We propose, in this note, to give a few brief illustrations of the
state of things in regard to divorce, while the Church of the West
was undertaking to bring about a uniformity of practice.
In the strictly heathen state of these nations, divorce would
have been allowed for a variety of reasons besides the wife's
adultery. The causes might be, by Icelandic usage, such as the
husband's cowardice, unseemly demeanor of either, or discord or
maltreatment of the parents of either party by the other, or impotence, or, it would seem, even poverty. Discord and malicious
desertion continued to justify divorce after Christianity was




APPENDIX,                     287
known, but the bishop alone could dissolve the connection. (See
Gans, Erbrecht, iv., 489 ff.)
In the laws of Aethelbirht of Kent (A. D. 560-616), it is said
that " if a free man lieth with a freeman's wife he shall purchase
her with her (or his) wergild, and get another wife out of his
own property and bring her home to the other man." (R. Schmid,
Gesetz. d. Angels, 2d ed., p. 5, No. 31.) In another law, No. 79,
it is said that if "she will depart with children she shall
have half the property," from which Gans (iv. 299) argues that
separation was tolerably free.
In the Burgundian laws it is said of a woman putting away her
husband necetur in luto. A man is authorized to dismiss his wife
for adultery, poisoning, and robbing of graves only, where we
trace the influence of Roman law. If he does this for other reasons he must either pay "alterum  tantum quantum pro pretio
ipsius dederat (i. e. the wife-price or morgengabe), besides a
mulct of twelve solidi, or must leave his house and property to
his children and move away. (Gans, iv., 36.)
Among the Lombards the stricter law of divorce was fully introduced by Charlemagne and Lothair. Before the conquest by
the Franks fines for divorce appear. King Grimoald ordained
that if a married man took another wife he should pay 500 solidi and lose the guardianship over his first.* (Gans, iii., 180.)
In the formulas in use among the Franks there are signs of
divorces quite contrary to the rules of the church. A formula
of Marculf(ii., 30, Walter's Corpus, iii.), it is said that the marriage
is dissolved because there is no love according to God's will between the parties, but discord. And they are free either to go into
a convent or to marry again. (Gans, iv., 83.)
In the Westgothic laws divorce is permitted only in the case
of adultery-indeed it was the consequence of this offense, as
the adulterer and the guilty wife ceased to' be free, and became
the property of the injured party.  Earlier usages permitted
divorce by consent. "Let no one presume," a law had it, "to
join in marriage to himself a free woman divorced from her husband, unless either by writings or before witness the fact shall be
* Grimoaldi leges, vi., in Walter's Corpus, i., 756.




288                     APPENDIX.
evident that a divorce took place." But such divorces were afterward forbidden by King Chindasuintha, and adultery now constituted the only ground of divorce. See Gans, u. s., iii., 341-344.
As we have seen that the church temporized among the Scandinavians, so was it more or less elsewhere. Among the AngloSaxons the Pcenitentiale of Egbert of York, (?) belonging to the
middle of the eighth century, shows that the wife's-but not
the husband's-adultery, impotence, desertion, and captivity
furnished grounds for divorce, with remarriage, of which the
church in England admitted the validity.    (Phillips, Angelsachs., Recht., p. 243.) The old British church seems to have
had stricter rules. In France, during the eighth century, things
were, if any thing, still looser. Richter affirms (Kirchenr. ~ 282,
note 7), that mutual consent was there a reason for divorce, and at
least in two cases remarriage of one or both parties could follow,
namely, when a vow of chastity was taken by one of the parties,
anrd when one became leprous. Furthermore, the following reasons, emanating from one of the parties, justified divorce: adultery, desertion of a wife, a husband's crime punished with servitude, captivity of either party, plotting against the other's life,
change of rank from slavery to freedom, refusal of connubial
duty, impotence, and even supervenient impotence. The decree
of Gratian has the following sentence of Greg. III., (A. D.'31740): "Si mulier infirmitate correpta non valuerit debitum viro
reddere-ille qui se non poterit continere nubat magis," etc. The
capitulum of the synod of Vermerie under Pippin, A. D. 752, permitting divorce with marriage to a man, against whose life his
wife has conspired with others, we have spoken of before. Another article of the capitulary of the same assembly agrees with
the above-mentioned sentence of Gregory III. Five years afterward, in the meeting at Compiegne (Compendium), it was enacted (capit. 16), that either husband or wife might separate
from  the other, being leprous, and marry whom he or she
would.*
All this shows the conflict of expiring Roman with ecclesiastical law. We have noticed a still later instance in the assises des
* Some of these statements Catholic writers seek to explain away.




APPENDIX.                     289
bourgeois of the kingdom of Jerusalem (~ 155, p. 322, ed. Foucher): " Sometimes it happens "-it is there said-" that a man
takes a wife, and this woman then becomes leprous, or has the
falling sickness badly (ou chiet de mauvais mal trop laidement),
or her mouth or nose sends forth a very offensive odor (ou il
put trop dure la bouche ou le nes)," etc. In such cases, reason
requires that the church ought to separate them, and accordingly,
after proof of the fact, the unfortunate woman is to be put into
a convent (soit reudus en religion), and the husband can then
take another wife. The wife can do the same when similar misfortunes befall the husband. Then follows a rule for the paying
over of her dower to the abbess of the convent, etc. This is
remarkable, considering that it contradicts the canon law in the
thirteenth century, and yet the less remarkable when we consider the rule of Gregory above cited, which furnishes a prece.
dent.
Our limits forbid us to speak of the penalties which the laws
of the Germanic and earlier barbarous kingdoms attach to adultery. We must refer for that subject to Wilda's Strafrecht d.
Germanen, pp. 821-829.
NOTE 4 TO CHAPTER IV.
Foljarme's Case.
IN the present note we shall follow, for the most part, the late
Prof. Craik, of Belfast, Ireland, who, in the Appendix to the
Romance of the Peerage, Vol. I., cited in our text, has submitted
this case to an accurate examination, and has shown the mistakes of previous writers.
Mr. Bishop, in his work on marriage and divorce (i., ~ 661, 4th
ed.), says that " anciently, judicial divorces were probably from
the bond of matrimony. But in 1601 a contrary rule was, in the
Court of Star Chamber, established by Whitgift, archbishop of
Canterbury, assisted by other eminent divines and civilians."
His authority is Foljambe's case, reported in 3 Salkeld, 137. And
agaiu, in ~ 705, he reaffirms the same thing, but without proof,
saying oaly that the fact is now generally admitted,
13




290                    APPENDIX.
That sentences of nullity in ecclesiastical courts dissolved marriage, or, more properly, declared it never to have existed, is
known to all. But there is not the slightest evidence that these
courts gave a license to marry another person in any other case.
They could not have done it in the old Catholic times, and no
other courts had jurisdiction over marriage and divorce. Nor has
any evidence been produced that after the Reformation-however,
some may have married a second wife while the first was living,
feeling no dread of the censures which were only ecclesiasticalthe case was altered.
The note in Salkeld's Reports, which has misled the author of
the article on divorce in the Penny Cyclopsedia and a number of
others, including Mr. Bishop, is as follows: "A divorce for adultery was anciently a vinculo natrinonii, and therefore, in the
beginning of the reign of Queen Elizabeth, the opinion of the
Church of England was, that after a divorce for adultery the
parties might marry again; but in Foljambe's case, Anno 44 Eliz.,
in the Star Chamber, that opinion was changed; and Archbishop
Bancroft, upon the advice of divines, held that adultery was only
a cause of divorce a mensa et toro."
Salkeld wrote in the early part of the eighteenth century, and,
as Prof. Craik shows, makes two errors, besides mistaking the
main fact. One of these is that Bancroft was primate in 44 Eliz.,
or 1601, whereas Whitgift lived until 1604; and the other, that
the Star Chamber, a court which had no jurisdiction in such
cases, and where "the archbishop neither sat alone nor presided,"
should have rendered such a decision.
But we may go back to Moore's Reports of the seventeenth
century, in which, as indeed in Noy's Reports (1656), the matter
of Foljambe is thus stated. We translate from the law French.
"Feb. 13, anno 44 Eliz. In the Star Chamber it was declared by
all the court, that whereas (?) Fuljambe was divorced from his
first wife for the incontinence of the woman, and afterward had
married Sarah Page, daughter of Rye, in his former wife's lifetime, this was a void marriage, was only a mensd et thoro, and not
at all a vinculo matrimonii. And John Whitgift, then archbishop
of Canterbury, said that he had called to himself at Lambeth the




APPENDIX.                     291
most sage divines and civilians, and that they had all agreed
therein."
Here the darkness begins to clear up. It is Whitgift, not Bancroft, who was concerned in the affair, and the primate had held
a council, not a court, at his palace, But there remains the fact
that, somehow or other, Foljambe's marriage had come before the
Star Chamber, of which Whitgift was a member. A natural explanation might be in this, that this point was only incidental to
the main issue before the court.
The registers of this court perished with it, or at least are not
now to be found, but Mr. Craik hunted up in the Chapter House
some of the depositions taken in this case. From these it appears
that Hercules Foljambe, Esq., defendant in the case, had been
divorced for his own adultery from two wives, and while they
were alive had married a third, Mrs. Sarah Page, a widow, the
daughter of the complainant, Edward Rye, of Misterton. The
complaint Was that Foljambe, in right of his so-called wife, had
seized the manor-house of Misterton, held by lease of the Chapter
of York Cathedral, and had by force kept out Rye, on the claim
that not Rye but his daughter was the lessee. The wrong charged
against Foljambe was this illegal exclusion of Rye, claiming to be
the rightful tenant, and the disturbance which he had thus excited. On this alone, says Mr. Craik, could the court give judgment, but " it is likely enough that, in so aggravated a case, the
illegality of the defendant's pretended marriage with the daughter
of the complainant, his only plea, may have been strongly pointed
out and denounced. But to quote this case as establishing any
thing new is absurd, and almost equally so whether the decision
be taken to have been that of the archbishop (as seems to be not
an uncommon notion), or that of the court of the Star Chamber.
No judgment of either the one or the other upon such a question
could have carried with it any authority whatever,"
The facts, then, when sifted, seem to be these:  1. Foljambe,
like many others in Elizabeth's reign, feared no penalties of the
common or statute law for his audacious marriage, for there were
none, and cared nothing for those of the law ecclesiastical. 2.
The validity of his marriage came up incidentally. 3. The pri



292                    APPENDIX.
mate, in consequence of the loose state of opinion, thought it best
to take the consilia prudentum touching divorce, and submit them
to the court. 4. The law of England had remained unaltered.
5. It is not improbable that this gross case, belonging to Feb.,
1602, may have led to the new canons and new statute of the
first year of James I., a little more than a year after.
NOTE 5 TO CHAPTER V.
Extractfrom Rev. H. Loomis' article on Divorce Legislation in Connecticut. New Englanderfor July, 1866.
DURING a period of fifteen years nearly 4,000 divorces have
been granted; a number equal to one-twentieth of all the families in the State. Are we not justified in the conclusion that the
law of 1849 effected not merely a change, but a revolution in the
legislation of the State in the matter of divorce I How then has
this revolution been accomplished? If we turn again to the
terms of that law we find that three new causes of divorce were
added by it-imprisonment for life, infamous crime, and general
misconduct. Applications for divorce, for the first two of these
causes, occur but seldom in the records of the courts, and cannot, fiom the nature of the case, have affected materially the
whole number granted. It is to the third cause, therefore, that
we must look for the multiplication fivefold of the decrees of divorce by our courts, and yet by reference to a classified table
subjoined, in which the decrees of divorce for the year 1864, and
two months of 1865, are given in connection with their causes,
it appears that only one-sixth of the whole were granted expressly for general misconduct alone. It is, indeed, exceedingly
curious to notice the effect which this so-called general misconduct clause has had upon the construction of the entire enactment, of which it forms apparently so subordinate a part. It is
noticed sometimes in musical instruments that an attachment directly connected with but a poridon of the scale, and designed
primarily to affect but the notes of a single octave, is found in
practice to give a new tone and character to the whole instrument throughout its entire range. Something analogous to this




APPENDIX.                    293
would seem to have been the effect of this general misconduct
attachment to our divorce law. Its influence has been felt, not
only in the suits brought specifically in its name, but in extending the loose, vague, and indefinite character of its own terms
over the language and administration of the entire enactment.
In addition to the tables carefully prepared for that purpose it
may not be improper to introduce in this connection other parts
of the evidence laid before the special committee appointed by the
Legislature of 1865 to take into consideration, and report upon
the recommendation of the Governor, in relation to a reform in
our laws of divorce. In the evidence presented to that committee, from which are drawn almost all the facts quoted in this article in regard to the present administration of our divorce law,
was the opinion of two of our judges who have recently retired
from the bench, that of the 4,000 divorces granted in this State
during the past fifteen years, more than half have been secured
through the influence, direct or indirect, of this general misconduct clause.
In a vast number of cases, in which the evidence in reference
to the particular offense alleged in the suit must have been rejected as insufficient, the additional claim urged by counsel, that
" the happiness of the petitioner had been destroyed, and the end
of the marriage relation defeated," has been sufficient to secure
a decree of divorce. In fact it may be said that the indirect influence of this clause has been far greater than any it could independently have secured; and where upon this issue alone a decree could not have been obtained, yet, coupled with the charge of
adultery, though amounting to only a suspicion-or with deser.
tion for a shorter period than provided for in the statute; or
with evidence of intemperance and cruelty, which would be held
wholly insufficient in itself as a ground of divorce-this plea of
general misconduct has, in innumerable instances, been pressed
to an actual decree. Indeed, when we consider the indefinite
terms of this provision, it is difficult to set any limit to the amount
of pressure which may be brought, by interested friends, to bear
upon the mind even of the most conscientious judge, to induce
a dissolution of the relationship. The whole matter is, in effect,




294                     APPENDIX.
placed under his almost absolute discretion; and where the State
has intrusted such almost unlimited power over the most sacred
relation of life, with few and slight limitations or barriers of any
kind to preserve it from abuse, it need not surprise us to find at
least equal laxity in its practical exercise.  Apart, however,
from the loose language of the statute, and the large discretion
allowed to the judge, it would be difficult to conceive of any thing
called a court, constituted with more inevitable tendency to dangerous laxity of practice than the Superior Court extemporized,
during the few minutes just before or after one of its ordinary
sessions, into a Court of Divorce.
But whatever may be said of the constitution of the court, its
usages are certainly such as are known to no other court, civil
or criminal, high or low, within the jurisdiction of the State.
Not only is it true in nine cases out of ten, or more exactly, as
our second table shows, in ten cases out of eleven, that there is
no appearance whatever for the respondent, and consequently all
the evidence presented is ex parte, but it is a notorious fact that,
ordinarily, no sufficient measures are complied with to secure notice to the respondent. It is true the law provides that certain
parties may issue an order of notice, but what the order shall be,
and what the evidence of its service, are left again to the discretion of the officer who issues it, and practically the duty is fulfilled, as shown in the evidence be'ore the committee, by the discharge of a letter through the post-office to the last address which
the petitioner who brings the suit may choose to furnish.
Whether, in the etiquette of a Court of Divorce, it be considered discourteous or otherwise, to the lawyer prosecuting a divorce suit, for the judge to submit the witnesses provided to any
very close examination, direct or indirect; and whether in a
Court of Divorce the assurance of a lawyer as to what he can
prove is equivalent to the actual proof itself or not, it is certain
that the hearing of quite a batch of divorce suits in the halfhour between the closing of the morning session of the court and
the time for dinner does not ordinarily involve any risk of a cold
repast on the part either of the court or the witnesses.




APPENDIX.                     295
NOTE 6 TO CHAPTER VI.
THAT divorce laws, by great laxity, and by allowing criminal
attachments of married persons to result in a new marriage between the guilty parties, must undermine family virtue, and put
it into the heads of people to get divorces who would otherwise
have lived in peace, all will admit. On the other hand, severe
divorce laws no more tend to multiply adultery and other high
offenses against the family state than lax ones, as we seem to
have shown. But the influence of law is limited.  No one supposes that a good divorce law will do more than abridge the number of flagrant offenses against marriage. If adultery is punished
instead of being rewarded, there will be fewer instances of this
crime; while loose laws, like those of Rome under the empire,
where divorce by agreement or by action of one of the parties was
exceedingly easy, and concubinage was allowed, did not diminish
the higher crimes, although adultery was punishable. We look,
then, beyond law to the idea of marriage, as the gospel presents
it. to us, and to moral and religious training for the preservation
of the sanctity of marriage in a nation, anxious only that the law
do not pour its great influence in another direction.
But nations differ in their proclivities.  Some, it would seem,
run more into one form of evil, and others into another. So the
form of civilization may encourage divorce.  We might count
among the causes of unhappy marriages among us, connected
with our national character and civilization, anxiety and want of
light-heartedness making home cheerless and leading to drink;
the equality of condition which makes the poor, especially in the
matter of the dress of females, emulate the rich; the nervous
irritability and love of excitement of the nation, induced in part
by our climate; the trashy food of paltry novels by which false
imaginations of matrimonial life are nurtured; the tendency toward material enjoyments; the haste in forming connections
arising out of the ease with which life is sustained; the general
freedom of choice and movement which makes law a yoke, while




296                    APPENDIX.
habits of thrift, self-restraint, and endurance have in part lost
their old power.
It is an important inquiry for the social philosopher, how far
frequency of divorce is, at its root, connected with other social
evils. For instance, within a few years many voices have been
lifted up to proclaim that a frightful sin-that of preventing the
increase of families by methods of abortion, and in other base
ways-is becoming rife among us. Dr. Allen, in eastern Massachusetts, seeks to show this, and Bishop Cox, in eastern New
York, warns his flock, in a pastoral letter, against "ante-natal
infanticide." The crimes are the crimes of native Americans and
of so-called Protestants, not of those foreign Catholics against
whom men blow the trumpet of alarm. It is impossible that
there should not be a foundation for these imputations: the evidence for them meets us too plainly to be denied, although the
argument from the decrease in the size of families is not a conclusive one.  But our point here is, how much is divorce connected with such a vice as this?  Must not the same want of
recognition of the true ends of marriage lead to this and to divorce. A heathenized mind is seen in both. Nay, a mind worse
than that of some heathens, of the ancient Germans, for instance,
among whomn " humerum liberrum finire flagitium habeur." And
what is the cause of this unwillingness to have a fanily? Is it
dread of expense, or trouble?  Are children no longer regarded
as a blessing?  And if they are thus prevented from coming into
the world, is not divorce the more unimpeded?    Or is the
fearful selfishness shown in such deliberate sin likely to bind the
marriage pair together?  But we pursue the subject no further;
only adding that the same religious and moral teaching, and the
same healthy laws that oppose divorce, must tend to put a stop
to this crime also.




I N-D E X.
The references are to the pages. C denotes cited.
A.
ADULTERY a type of idolatry in the Old Test., 13; definitions of,
68, 90, 197; penalties for, among the Jews, 63, 64; Romans,
48, 91; in the U. States, 193, 197-199; in the Amer. Colonies before the revolution, 210-213; not punished by English
law, 118; consequences of, in Prussia, 146; in France, 163,
165, see also Divorce, Separation; treatment of in canon law,
117; condoned by early church, 107 seq., 110; does not dissolve marriage in the Roman church, 67 et alibi; not repressed
by frequency of divorce, 90; Luther and Calvin on the penalty of, 139; incestuous, what by English law, 175.
Alford, c., 63.
Annulment of marriage not divorce, 118; when allowed by canonical law, 119 seq.; effects of, on children by do., 124.
Athens, divorce at, 29-32. See Greeks.
Augustin, his views of divorce and remarriage, 66, 67, 69, 110
seq., 115.
Austria, divorce law for Protestants in, 150; concordat of, 238.
13*




298                      INDEX.
B.
BADEN, law of divorce in, 150.
Balsamon, c., 63; Appendix, note 2.
Basil, c., 63.
Betrothal, Hebrew, 12; Greek, 28; Roman, 35, 36.
Beza, c., 134.
Bishop (on marriage and divorce), o., 180, 185, 187, 188, 192.
Burnet, c., 169.
C.
CALISTUS (Bishop of Rome), 88.
Calvin, c., 132-134, 139.
Carvilius, Ruga, his divorce, 39.
Catholic or Latin Church, what marriages disallowed in, 107;
doctrine of marriage and divorce in, 113-125.
Cato the Younger lent his wife to Hortensius, 20.
Church must follow the N. Testament in the discipline of divorce,
242 seq.; duty of the minister, 243; of the disciplining authority, 243 seq.; special cases, 250 seq., 253 seq.
Chemnitz, c., 131.
Chicago, city of, number of divorces there in a year, 228.
Coemptio, form of Roman marriage, 36, 41.
Commentators, several Protestant, on divorce, 135, 136.
Concubinage among the Hebrews, 12; Greeks, 33; legalized at
Rome by Augustus, 88; frowned upon by Constantine, 97;
and Justinian, ibid.
Confarreatio, form of Roman marriage, 35, 41.
Constantine the Great, his laws on divorce, etc., 91, 95-98.
Corpus juris canonici, Gratian's decrees, 113, 118, 121; decretals
of Gregory IX., 106, 121, 122.
Corruption of family life at Rome, 42-44.
Cotelerius, c., 113.
Council of Trent, 67, 116, 122, 123.




INDEX.                       299
Craik (Professor), on the canons of James I., 171; on Lady Ricll
and Laud, ibid.; on Foljambe's case, Appendix, note 4.
Cranmer, his opinions on divorce, etc., 170.
D.
DEMIOSTHENES, c., 30.
Desertion (malicious desertion) a common ground of divorce among
Protestants, 129 seq., 135 seq., 137 seq., 182, 195.
De Wette, c., 23, 65, 76, 79, 83.
Dion Cassius, c., 90.
Dionysius of Halicarnassus, c., 38.
Divorce among the Hebrews, 9-25; granted to the husband only,
15, 19; formula of, 18; protected the wife, 19; divorce, how
far practiced, 18, 24; in Christ's time, 24; among the Greeks,
25-34, see Greeks; among the Romans, 34-49, see Romans.
Divorce, doctrine of, in the New Test., 50-85; teachings of Christ,
51-70; of St. Paul, 70-82; can they be harmonized, 82-85;
passages in Matthew, 52, 54; in Mark, 54; Christ not a legislator, 55; his treatment of the law of Moses, 56, 57; meaning
of 7ropveia in his words, 61-63; does it relate to acts before
marriage, 62; reasons for using this word, 65; does Christ
allow the innocent party to marry again, 66; Augustin's
view, 66, 67, 69; are the husband's and the wife's crimes
against the marriage law parallel, 68; is the separation
spoken of by Christ and by Paul the same, 70; St. Paul, his
rules when both parties are believers, 71; conceives of separation a mzeusa et toro, 73; his rules where one party is an
unbeliever, 714-82; the Christian party to be passive, 75;
remarriage of the Christian party not thought of, 76 seq., 80,
81, 82; meaning of ov dedNiovJurat, 77 seq.; opinions of commentators, 75, 76, 78, 79.
Divorce legislation by Augustus and under the empire, 47-49,
86-101; in France, 150-168; in Prussia, 141-150; in England, 168-178; in the United States, 179-233; effects of on
family life, Appendix, note 6. See Romans, Constantine,




800                      INDEX.
Justinian, Theodosius, Prussia, France, England, United
States.
Divorce by consent of the parties legal by Roman law until Justinian's time, 92, 99; restored by Justin, 100, Appendix,
note 2; when legal in Prussia, 145; in France, 152; espec.
by the code civil, 161-164.
Divorce, opinions concerning. See Early Church, Catholics, Protestants, Sacraments, Greek Church.
Divorce a mensa et toro not true divorce, see Separation; divorce
on sentence of nullity, 118, see Annulment, Prohibited degrees.
Dower, at Athens, 30, 31, 32; at Rome, 48, 89 et alibi.
Dwight (President), c., 229.
E.
EARLY church, current opinions of, on marriage and divorce, 103
seq.; these formed before marriage becane a sacrament, 104;
in what cases it allowed complete divorce, 105, 106; Shepherd of Hermas on divorce, 107; Clement of Alexandria on
ditto, 110; Origen, 110; Tertullian, 110; Augustin and Pollentius, 110, 111; Chrysostom, 111; Jerome, 112; case of
Fabiola, 112; voices in favor of divorce in, 114-116; treatment of adultery by, 105, 117.
England, divorce and divorce law in, 168-178; divorces of Queen
Catharine, Anne of Cleves, Margaret of Scotland, 169; of
Marquis of Northampton by act of Parliament, 170; Cranmer's opinions on, 170; statute and canons of 1 James I.
171, 172; marriage of Lady Rich, an adulteress, by Laud,
172; only Parliament dissolved marriage, 173 seq.; ecclesiastical courts, their decrees of separation, 173 seq.; cases of
jactitation of marriage, 173; new marriage and divorce law of
20 21 Victoria, 174-178; new courts in matrimonial cases,
174; sentences of separation, 175;- of dissolution for what
causes, 175 seq.; appeal, 176; other provisions of, 177;
defects and good points of the law, 177, 178; remar



INDEX.                       301
riags after divorce possible, when the term of appeal is past,
176.
Episcopal Church, Protestant, in United States, its canon of 1868 on
solemnizing marriage discussed, 248-250.
Ewald, c., 23.
Ezekiel, the prophet, xvi. 9, 12; xxiii. 15, 18.
F.
FAMILY courts at Rome, 37, 38.
Foljambe's case, 172, Appendix, note to Chapter 4.
France, history of divorce laws in, since the revolution, 150-168;
law of 1792, 151-153; family councils, 152; law of 1793,
153; of 1794, ibid.; abolished 1795, 154; speech of Mailhe
concerning, 155; law of the code civil, 156-166; discussions
on, in council of State, 156, 158; views of Portalis there expressed, 157, 158; determinate grounds of divorce, 159; divorce by mutual consent, 161 seq.; formalities and delays of
this kind of divorce, ibid.; effects of divorce, 163, 164; separation a mensa et toro now restored to French law, 164;
divorce abolished altogether under the Bourbons, 166, 167;
attempt to reintroduce divorce in 1830, 168.
G.
GANS (Prof.), his Erbrecht, c., 114, and Appendix note 3, passim.
Geneva, law of divorce there, 133.
Goschen (Prof.), c., 122, 124, 125, 132, 134.
Gratian's decrees, c. See Corpus j. c.
Greek Church, what marriages forbidden in, 106; looser in allowing divorce than the Latin, 114.
Greeks, divorce among, 25 et seq.; esp. at Athens, 29-32; by the
wife, 29, 30; terms for, 29; facility of, 30; Plato's law concerning divorce, 33, 34.
Gregory's decretals. See Corpus j. c.




302                      INDEX.
H.
HALLAM c. against Lingard, 170, note.
Harmenopulus, his hexabiblus, Appendix, note 2.
Hebrews, divorce among, 10-25.
Hednon or marriage-gift, in Greece, 27, 28.
Hermas, Shepherd of, passage fiom, 107, 108, and note.
Hillel, his doctrine of divorce, 15-16.
Hippolytus, c., 88.
Iitzig on Malachi, 23.
Honorius (emperor), his divorce legislation, 98.
Horace, c., 44.
Hug, his opinion on Matthew xix. 9 rejected, 66.
Huther on 1 Tim. iii. 2, c., Appendix, note 1.
I. J.
Jerome, c., 104, 112.
Illinois, divorce laws of, 198, 205, 216.
Indiana, divorce laws of, 198, 204, 216; loose practice in, 207, 208;
number of divorces in, 227.
Innocent III. (pope), c., 1.06, 113.
Josephus, c., 16, 24.
Iowa, divorce law of, 205.
Judicium morum, by Roman law, 94.
Julian (emperor), his laws of divorce, 98.
Justin (emperor), Novell 140, restores divorce by consent of
parties, 100, Appendix, note 2.
Justinian, his laws on divorce, etc., 91, 97, 99, 100; Appendix,
note 2; esp. his 22d novell, Appendix, note 2; his 117th novell,
99.
Juvenal, c., 44.




INDEX.                       303
K.
Kayser (Prof.), 18th cent., his opinions on divorce, 140.
Keil on Malachi, 23.
Kent (Chancellor), c., 180, 185, 191.
Kingston, Duchess of, her case, 173.
Knobel on Deut. xxiv. 1-4, 16.
Kohler on Malachi, 23.
Kyrios, or guardian at Athens, 29.
L.
Leo (emperor), the philosopher, 97.
Lingard on the reformatio leg. ecclesiast., 170.
Loomis, Rev. H., on divorce in Connecticut, 219, Appendix, note 5.
Louisiana, divorce laws of, 192 seq.
Luther, c., 128-131, 139.
Lysias, c., 29.
M.
Mailhe, his speech on divorce in the French conventior, 154 seq.
Maine, State of, its divorce laws, 198, 200, 202-204, 214.
Malachi ii. 11-16 explained, 23.
Mansfield, E. D., 218, 228.
Manus acquired in certain forms of Roman marriage, 35.
Marriage, Hebrews ideal of, 10; not merely a contract, 157, 235;
polygamy rare among the Hebrews, 12; began with betrothal,
ibid.; conception of, in Greece, 25; became degraded, 26; in
Sparta; 28; in Athens, ibid.; at Rome, 34; by confarreatio,
35; usus, ibid.; coemptio, 36; free, or without the manus, ibid.;
power acquired over the wife, 37 became degraded at Rome,
40; crimes of married women, 42; indissoluble in the view of
the early cllurch, 113; opinions on the other side, 115 seq.




304                     INDEX.
Marriage-gifts questionable among the Hebrews, 12; in Greece,
see Hednon.
Martial (the poet), c., 95.
Massachusetts, laws of, on divorce and adultery, 195, 199-201,
203, 210, 212, 214, 215; statistics of divorce in, 218, 221,
223.
Medieval and barbarian laws of divorce, Appendix, note 3.
Meyer, commentary on N. Test., c., 65, 66, 16, 78, 83.
Mixed marriages, 107.
N.
NAPOLEON I. (when first consul), his views of divorce, 157.
Neander on 1 Corinthians, c., 79.
New York, divorce law in, 183 seq., 187, 190 seq., 199, 201, 202,
209.
Norfolk, Duke of, his divorce, 173.
Northampton, Marquis of, his divorce, 169, 170.
Novells (of Justinian), xxii., 99, Appendix, note 2; cxvii., 99 seq.;
cxxxiv., 99; cxl. (of Justin), 100, and note.
0.
OrIIo, statistics of divorce, 221, 226, 228.
Origen, c., 63.
P.
PAULUS (Roman jurist), c., 92, 93.
Pennsylvania, divorce laws of, 198, 202, 216; penalty for adultery in, 212.
Plato, c., 27, note 33, 34.
Plutarch, c., 31, 38, 39.
Polygamy, 12.
Portalis (in French Council of State), c., 157, 158,




INDEX.                       305
Prohibited degrees, 119; as annulling marriage, 119-124; affinity
a cause of prohibition, 120;. spiritual relationship also, 1.20;
adoption, consanguinity, etc., to what degrees a hindrance to
marriage, 120-123; rule of Alexander VI., 120; of Gregory L, 121; of Innocent III., 121; of Gregory IX., ibid.
Protestant view of marriage and divorce, 126-140; how it grew
up, 127, 128; opinions of reformers, 128 seq.; of Luther, 129,
130; of Chemnitz, 131; Zwingli, 132; Calvin, 132-134;
Beza, 134; of Protestant commentators, 135, 136; of eccle.
siastical ordinances, 136-139.
Prussia, divorce legislation of, 140-150; project of Cocceii (1749),
140; Frederic the Great, his dissatisfaction with the laxity
of divorce, 142; law changed, ibid.; present code, 143 seq.;
causes of divorce in it, 143-145; no separation a mensa et
toro allowed to Protestants, 145; consequences of divorce,
146; esp. in relation to property, 147, 148; Protestant
clergymen forced to celebrate legal marriages, 149; complaints against the law, and attempts to reform it, 14:9 150.
See Savigny.
R.
REFORM in divorce laws, what kind of, demanded in the U. S.,
258-272.
Reformatio legum ecclesiast., 170.
Rein, his Rom. Privatrecht, 39, 90, 92
Remarriage of a divorced person, 60.
Rhenish Prussia, divorce in, 163.
Rhode Island, divorce laws of, 205, 214, 216; penalty for adultery, 211.
Richter's Kirchenrecht, c., 115, 238, Appendix, note 3.
Rochau, Von, c.. 168.
Romans, their early forms of marriage, 35-37; first practice as
to divorce, 38; early divorces, 39; later laxity, 41-49; examples of divorce, 45-47; divorce laws under Augustus, 47,




306                      INDEX.
48, 86-89; penalties for adultery, 91; frequency of adultery,
90; of divorce under the empire, 95; summary of laws of
divorce under the empire, 101; kinds of divorce, esp. bond
gratia, Appendix, note 2.
S.
SAALSCIIUTZ, C., 12, 14, 25, 64.
Savigny, c., 37, 141; his attempts to reform Prussian divorce law,
149; c., 163, 260.
Schmid, R. (Anglo-Saxon laws), c., Appendix, note 3.
Schmidt, C. (of Strasburg), c., Appendix, note 2.
Selden, c, 17, 25.
Septimius Severus (emperor), his vain attempt to enforce the law
concerning adultery, 90.
Shammai, his doctrine of divorce, 15, 16.
Stanley onj Corinthians, c., 78.
State may be in conflict with church as to divorce, 237 seq.; what
the state may do, 237, 241; State laws of divorce, what
they ought to be, 258 seq.
State trials (English), c., 173, 174.
Strippelmann, c., 225.
T.
TERTULLIAN, C., 103, 109, 110.
Texts of Scripture discussed: Deut. xxii. 13-19, 21; xxii. 23,
64; xxii. 28-29, 21; xxiv. 1-4, 15 seq.; Isaiah li. 1, 18; Jeremiah iii. 6-14, 18; Ezekiel xxii. 9, 12; xxiii. 45, 18;
Malachi ii. 11-16, 12, 21-23; Matthew v., 31-32; xix., 3-9;
Mark x. 2-12; Luke xvi. 18, 51-70; 1 Cor. vii. 10-16,
70-82; 1 Tim. iii. 2, 12; v., 9. Titus i. 6, Appendix, note 1.
Theodosius II. (emperor), his divorce law, 98.
Tholuck, c., 63, 65, 76, 79, 140.
Thomasius (prof. at Halle), his loose notions on divorce, 140.




INDEX.                       307
Thurii (in Magna Grmecia), divorce law there, 32.
Trinquelague on divorce, in French Chamber, 167.
Tronchet on divorce, in French Council of State, 157, 166, 259.
Troplong, c., Appendix, note 2.
U.
UNITED STATES, divorce and divorce laws in, 179; want of statistics,
180; difference of laws in different States, 180; imperfection
of our statute law, 181; Puritan colonies, their opinions on
divorce, 182; other colonies, ibid.; divorces granted at first
by legislatures, 183 seq.; power now in most States given
solely to the courts, 184; some States only know of separation a vinculo, 186; most allow separation a mensa et toro,
ibid.; divorce never granted in S. Carolina, 188, 189; divorce
in N. York, 189-192; Louisiana, 192; in Puritan colonies,
194-196; consequences of granting divorce on account of
desertion, 196; causes of divorce or of separation a mrensa
et toro; adultery, 197; desertion, 198; imprisonment, 200;
joining certain religious societies, 200; neglect to maintain a
wife, 201; intoxication, 201; cruelty, 202; special looseness
of divorce laws of Maine, R. Island, Connecticut, N. Carolina, Iowa, Indiana, 204, 205; law of Illinois how  interpreted, 206, 207; residence required in order to get a divorce, 206; adultery, how treated by the States, 209, 210;
by the colonies, 210 seq.; effects of divorce on property, 214;
on power of marrying again, 214-216; divorce on the increase, 217, 218; statistics of certain States, esp. Connecticut, compared with Prussia and France, 219-232.
Usus, a kind of Roman marriage, 35, 41.
V.
Valentinian II. (emperor), his divorce laws, 91, 97.
Vermont, divorce laws in, 198, 200, 202, 209, 211.; statistics of
divorce in, 220 seq., 226.




308                      INDEX.
Viel-Castel, his history of the Restoration, c., 167.
Virginia, divorce laws of, 199; penalty of adultery, 209, 211 seq.;
mode of divorce, 183, 184.
W.
WACIITER, his Ehescheidungsrecht. 49; Appendix, note 2.
Walter, his Kirclenrecht, c., 107; notes, 113, 114, 122, 125, Appendix, note 2.
Wilda's Strafrecht, c., Appendix, note 3.
Winer, c., 25, 76.
XENOPHON, C., 26.




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