H-3 
 % n 
 
 CORNELL 
 
 UNIVERSITY 
 
 LIBRARY 
 
Cornell University Library 
 HQ 811.W86 
 
 3 1924 021 866 615 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924021866615 
 
ESSAY ON DIVORCE 
 
 DIVORCE LEGISLATION 
 
 WITH SPECIAL REFERENCE TO THE UNITED STATES. 
 
 THEODOEE D. WOOLSEY, D.D., LL.D., 
 
 PRESIDENT OP TALE COLLEGE. 
 
 "\ 
 
 Is ■'.£ ; s i 
 
 V-* .<GG _w, 
 
 JTew York 
 
 CHAELES SCEIBNEE AND COMPANY. 
 
 I 
 
 .-'' T 
 

 A m.'^H- 
 
 
 
 7 3 JTO B~t* C») 
 
 Entered according to Act of Congress, in the year 1869, 
 
 By CHAKLES SCRIBNER & Co., 
 
 In the Clerk's Office of the District Court of the United States for 
 
 the Southern District of New York. 
 
 x>3 
 
APPENDIX. 
 
 Pagh 
 
 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 Englandar 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. 
 
 DIVORCE AMONG THE HEBREWS, GREEKS, AND ROMANS, . . 9 
 
 CHAPTER II. 
 Doctrine or Divorce in the New Testament, .... 50 
 
 CHAPTER in. 
 Law op Divorce in the Roman Empire, and in the 
 Christian Church, 86 
 
 CHAPTER IV. 
 Divorce and Divorce Law in Europe since the Ref- 
 ormation, 126 
 
 CHAPTER V. 
 Divorce and Divorce Law in the United States, . . 179 
 
 CHAPTER VI. 
 Attitude of the Church toward Divorce Law, Prin- 
 ciples of Divorce Legislation, 234 
 
PEEFACE. 
 
 The following Essay is a reprint of articles 
 which appeared in the New 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 consider- 
 able. 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 re- 
 sides are extremely lax, and that a common- 
 wealth, 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 be- 
 cause 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. How he has done his 
 work the reader must judge. 
 
 As for the treatment of the subject the au- 
 thor wishes to say : — 1. That the multitude of 
 details, especially in the fourth and fifth chap- 
 ters, 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-exam- 
 ination, the errors could not be conveniently 
 detected. 2. In the last chapter it might seem 
 as if he was inconsistent with his own prin- 
 ciples 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 excep- 
 tion, 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. 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, 111., 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 introduc- 
 tion to an inquiry into the meaning of those pas- 
 sages 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 DIVOECE 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 touch- 
 ing 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 
 of the state of opinion and law in some of the 
 principal Catholic and Protestant countries. Fi- 
 nally, we shall ask what ought to be the aim of le- 
 gislation among us, and how the Christian Church 
 ought to act in endeavoring to enforce the com- 
 mands 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 irreli- 
 gious 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, gen- 
 eral 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. 
 
 DIVOECE AMONG THE HEBEEWS. 
 
 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 E0MAN8. 11 
 
 twain shall be one flesh." Here the union of one 
 man with only one woman is thought of, and po- 
 lygamy 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 sepa- 
 ration of the man from his father and mother con- 
 templated 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, involv- 
 ing 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 permit- 
 ted or rather endured, under some restrictions, but 
 one wife was the rule, as is shown by various pas- 
 sages 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 Moses and of Isaac ; even 
 Abraham looks forward to the necessity of having 
 a servant for an heir, until at the instigation of 
 Sarah he takes Hagar as a kind of substitute for 
 her ; wealthy men, like Nabal and the Shunainmi- 
 
12 DIVORCE AMONG THE HEBREWS, 
 
 tish woman's husband, are monogamists ; and per- 
 haps' the law laid down a similar rule for the high 
 priest.* Probably a great part of the private per- 
 sons among the Jews had but one wife, and po- 
 lygamy was chiefly confined to the king and a few 
 others. Even the kings were forbidden to multi- 
 ply wives greatly, and Jehoiada, the high priest, 
 must have intended to restrict King Joash, when 
 he furnished hitn 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 condi- 
 tion, a form between concubinage and marriage. 
 The woman in Judges, chapters xix., xx., is con- 
 stantly called a pillegesch 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 cove- 
 nant 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 Saalschiitz (Mos. Recht., p. 148 
 ed. 2), will not bear much weight. 
 
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 ten- 
 der care, conditioned by fidelity, belong to both re- 
 lations, 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. However 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 ap- 
 posite 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, aa 
 
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 
 things." 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 infor- 
 mal and primitive, but yet penetrated with a re- 
 ligious 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 Saalschiitz (u. s.), chapter 102, § 3. 
 
GEEEKS, AND ROMANS. 15 
 
 without hazarding the overthrow of the polity. 
 It was therefore endured, and in some degree re- 
 stricted. 
 
 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 alto- 
 gether 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 vindi- 
 cation in this case was left to her friends. In the 
 second place, what do the words " some unclean- 
 ness " denote % This passage, as is well known, 
 was the subject,pf 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 HEBEEWS, 
 
 be confined to an act of immorality like adultery. 
 Winer, however, says that the Gemara makes the 
 view of Shammai less strict : even public viola- 
 tions of decorum might furnish ground for divorce 
 according to his doctrine. Joseph us interprets the 
 law according to the views of Hillel : " He 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 unclean- 
 ness or adultery was punishable by death. Knobel, 
 in his commentary on Deuteronomy, expresses 
 himself as follows : " Eroath ddbar is used of hu- 
 man excrement in Deut. xxiii. 13, and is properly 
 a shame or disgrace (Is. xx. 4) from 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 dis- 
 gust], and understood it of unchaste demeanor 
 and shameless lewd behavior. The school of 
 Hillel, which the Eabbins follow, explained it as 
 
GREEKS, AND EOMANS. 17 
 
 something disgusting or any other cause, and thus 
 
 defended a looser view Both were 
 
 wrong in this, that they built up a general princi- 
 ple 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 hus 1 - 
 band 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 men- 
 tion is made of any reasons. 
 
18 DIVOKCE AMONG THE HEBREWS, 
 
 certain awe, if conscious of the frivolity ot 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 Glod's treat- 
 ment 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 com- 
 mon use. The passage in Jeremiah however sug- 
 gests 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 man- 
 ners, into repudiation'. The passage in Ezekiel 
 (xxiii. 45, 46), where judgments by righteous men 
 in cases of adultery are spoken of, proves the con- 
 trary. Jeremiah adapts his simile to the facts of 
 the case. The adultery of Israel was the abandon- 
 ment 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 mar- 
 riage 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 an- 
 other 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 compensa- 
 tion to the wife. This compensation was remar- 
 riage 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 dis- 
 gusted with the old one, and her feelings, when 
 
20 DIVOKCE AMONG THE HEBEEWS, 
 
 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 dis- 
 gust would ere long end the connection with one 
 of them or the other. 
 
 As for the protection of public morals, it is evi- 
 dent 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 polyandry 
 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 occur- 
 red, but a practical dissolution by marriage to an- 
 other man forever prevented a union with a for- 
 mer 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. Eoms., iii., 107. 
 
GREEKS, AND EOMANS. 21 
 
 it is spoken. of, show an intention of a humane leg- 
 islator to protect a woman in circumstances where 
 she was peculiarly exposed to injury. One of 
 these is Dent. 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 an- 
 tenuptial 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 in- 
 tolerable 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 th'at 
 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 sen- 
 timent 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 Hosts. God no lon- 
 ger regards the offerings of such men, because 
 they have dealt treacherously or unfaithfully each 
 one against the wife of his youth, who is his compan- 
 ion and the wife of his covenant. The next words 
 are among the obscurest in the Eible, 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 lihat he hateth putting 
 away, for one eovereth violence with his garment, 
 saith the Lord of Hosts." The marginal render- 
 ing 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, AJTO KOMA25TS. 23 
 
 the sentence conditional : " when one out of ha- 
 tred puts away, saith Jehovah God of Israel, he 
 covereth his garment with violence." In this ver- 
 sion 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 as- 
 sumes is strangely divorced from the conditioned. 
 Hitzig 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 com- 
 mentator (in his Prophets after the exile, part 4), 
 " for I hate putting away, saith Jehovah, etc., and 
 crime covereth his garment " (who doeth this) ; 
 DeWette 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 ease 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. ¥e have thought while studying this pas- 
 sage 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, es- 
 pecially 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 for- 
 mer race, most beautiful and elevated at the out- 
 set, but long encountering inveterate oriental 
 practice, and failing in a great measure to be re- 
 alized, 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 polyg- 
 amy, 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 ea- 
 gerly to rhapsodists narrating the adulteries of 
 Zeus or Hephaestus, must have been defiled them- 
 selves, and must have grown more so from famili- 
 
 * The authors whom we have principally relied upon are Saal- 
 Bchiitz (Mosaische3 Eecht), 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 wea- 
 risome and confusing. 
 
26 DIVORCE AMONG THE HEBKEWS. 
 
 arity with such examples. Still a simple unsen- 
 sual 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 insti- 
 tutions, the sanctity of married life was not re- 
 spected. 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 pro- 
 tect her from the evil without. She thus became 
 an unfit companion for the man who enlarged Lis 
 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, fast- 
 ened itself on the intimacy of older with youn- 
 
 * See what Xenophon, in his Lacedemonian polity near the be- 
 ginning, says of this and of a still more disgusting practice, with 
 no reprehension, and ascribing the licenses to Lyeurgus. This 
 scholar o,f Socrates can have had no moral but only a political 
 view of marriage. 
 
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 cor- 
 ruption.* 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 re- 
 garded only as a convenience or as an evil ; popu- 
 lation fell off; whatever Greek virtue of the polit- 
 ical 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 bar- 
 baric, 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 hook, 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 DIVOECE AMONG THE HEBKEWS. 
 
 trification of a gift or present at first, and as the 
 father would naturally give a part of this wife- 
 money 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 be- 
 trothed man or from other friends. Thus an ep- 
 ithet applied to maidens can be translated cattle- 
 finding, 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 Agamem- 
 non, that to obtain his wife he first gave a hun- 
 dred cattle, then promised a thousand head of sheep 
 and goats besides. Sometimes the father waived 
 his right of purchase-money for his daughter ; Aga- 
 memnon is willing, if he can propitiate the angry 
 mind 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 those of many 
 other nations. 
 
 In Sparta, after betrothal, marriage was consum- 
 mated 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 di- 
 vorce of the parties, the wife fell under the author- 
 ity 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 ekpertvpein), when the hus- 
 band repudiated the wife ; but quitting and going 
 away (apoleipein) 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 from the instance of a 
 leading Athenian mentioned by the orator Lysias,. 
 that the husband usually made known his inten- 
 tions before witnesses called in for that purpose. 
 
 * Other terms also occur, as ekballein, apoluein, aphienai. 
 
30 DIVOECE AMONG THE HEBREWS, 
 
 There are several instances of this kind of divorce 
 mentioned in the private orations of Demosthenes, 
 •which demonstrate what a bare matter of conveni- 
 ence 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 guardianB 
 of the orator Demosthenes during his minority. 
 Protomachus, a man in needy circumstances, hav- 
 ing the same chance, persuades his friend Thucri- 
 tus 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 hus- 
 band 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 fa- 
 ther or previous kyrios 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 pro- 
 ceedings. 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 ob- 
 liged 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 Hipparete, 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-men- 
 tioned legal steps for a divorce, that Alcibiades 
 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 re- 
 quired the presence of the woman desiring a di- 
 vorce 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 DIVOBCE AMONG THE HEBREWS, 
 
 Tcyrios, 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 del ay ed 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 alto- 
 gether, 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, in- 
 itiated the divorce, the said party should be for- 
 bidden 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 
 
33 
 
 Greeks could govern themselves, and which, al- 
 though in general starting from the same concep- 
 tions 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 con- 
 quest 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 al- 
 lowed 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 authors, and 
 
 especially of Demosthenes in his private orations, are the writerson 
 
 Attic law, especially Meyer and Schumann's Attische Process, 
 
 page 408, onward; Platner's Process, part 2, page 245; and the 
 
 writers on archseology, especially K. P. 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 meanB 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 re- 
 ligious 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 wor- 
 ship of the gods which ran down in the end into the 
 merest formality. Their earlj 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. £o 
 
 the septs or gentes of the patricians, and the vast 
 powers of the housemaster over wife, children, and 
 slaves, which it toot 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 grand- 
 father. She was now said to be in his hand, and 
 the marital power was known by the name of 
 manus. 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 comprehen- 
 sion of the subject. The oldest of these, confarrea- 
 tion, which was exclusively patrician, was cele- 
 brated with special formalities by public prieats 
 in some sacred place before witnesses, and the 
 manus was acquired by the same act by which the 
 marriage was solemnized. This may be called 
 religious marriage. The two others arose, as it 
 seems, in plebeian life. Of these, usus was proba- 
 bly 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 o f three successive nights, 
 tbe 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 — co- 
 emption — was a kind of fictitious sale, much like 
 that used in adoption and emancipation, and here 
 two contemporaneous actB give legal existence to 
 the manus and the marriage. These may be 
 called forms of cvoil marriage. This last form 
 had become obsolete before Gains wrote his insti- 
 tutions 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 pre- 
 ceded 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 EOMANS. 37 
 
 motive winch 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, patri- 
 cian Rome surrendered its ancient iron habits, un- 
 der 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 m.amis 
 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 vsho 
 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 ex- 
 tent controlled by a very remarkable Roman in- 
 stitution, which derived its sanction from old cus- 
 tom rather than from positive law, — a family court, 
 consisting of blood-relations of both parties, to- 
 
38 DIVORCE AMONG THE HEBREWS, 
 
 gether with the husband himself. Such a court 
 was also assembled to try great crimes of children,.' 
 and yet there was not the same necessity for as- 
 sembling 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 talcing 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 ac- 
 quired 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 from the time of 
 llomulus onward. He says that it could take 
 place for violations of the law of chastity and for 
 drinking wine, — sentence of the husband and the 
 relations being necessary for its validity. Plutarch's 
 statement is that the wife could not separate her- 
 self from her husband, but that the husband could 
 repudiate his wife for three crimes-(- poisoning the 
 children, making false keys, and adultery.) Wine- 
 bibbing on the part of the wife we know from 
 
GREEKS, AND ROMANS. 39 
 
 other sources to have been a grave offense. He 
 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, tradi- 
 tion 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 cir- 
 cumstances : 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 
 censiis, required him to declare, on oath, that he 
 had, or would have, a wife liberorum quwrendorum 
 gratia, under pretense of avoiding a false oath, 
 he terminated the marriage state by repudiation. f 
 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; Plut., 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. 
 
 f 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. <t. He violated public feeling 
 and his conscientious scruples were a mere pretext. 
 
40 DIVOECE 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 the 
 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 
 Koman empire in Greece and the East, conspired 
 with internal political changes and with the de- 
 cline 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. 
 Iiome 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 mis- 
 tress 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, A2TD ROMANS. 41 
 
 be taken with almost no formalities at all.* Add 
 to this that the dower brought by the wife be- 
 came 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 foreigDer, 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 it, that 
 it could be initiated by husband or wife with al- 
 most equal freedom, that there was a ready con- 
 sent of both parties to the separation in the pros- 
 pect 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 pow- 
 er thus furnished of entering into a new marriage 
 
 * In the confarreaiio or religious marriage of the patricians, 
 a form called diffarreaiio — that is, separation with the ceremony 
 of offering the cake of spelt, as confarreaiio denoted union with 
 the same ceremony — dissolved the marriage tie. In both coemptio 
 and usus, it is probable, a form called remancipatio, another ficti- 
 tious sale, set the wife free from her husband. In marriage 
 without the manus no form was necessary, and this kind of mar- 
 riage at the fall of the Republic had superseded the others almost 
 entirely. 
 
42 DIVORCE AMONG THE HEBHEWS, 
 
 with an object of guilty attachment. But adultery 
 too went along with divorce. They were both in- 
 dications 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 sanc- 
 tity 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 mor- 
 als ; 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. c. 
 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. o. 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 rel- 
 atives, were put to death.* 
 
 Nor ought we to overlook that frightful develop- 
 ment of mingled superstition and lust, the affair of 
 the Bacchanals, 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 mor- 
 als. It is to the year prior to that which brought 
 these things to light, that Livy assigns the introduc- 
 tion of foreign luxuries through the soldiery who 
 had served in Asia ;— the costly garments and furni- 
 ture, the singing women and sumptuous feasts, the 
 cook, "vilest of slaves in the view of the forefa- 
 thers," but now regarded as an artist. Yet, adds he, 
 what was then witnessed was but the seeds of a lux- 
 ury that was to come. The corruption that grew 
 from the time of Sulla to that of Catiline, which 
 * Livy, xL, 37, and Epit. xlviii. 
 
44 DIVOBCE AMONG THE HEBKEWS, 
 
 Clodius helped to increase, at the acme of which 
 that "strong-minded" woman, Fulvia, and then 
 such a person as Julia, an emperor's daughter, flour- 
 ished, is acknowledged and painted in glaring col 
 ors by the Roman historians. Tbey 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 fachiusque libidlnia, ex quo 
 Paupertas Romana perit. 
 
 And again, 
 
 Prima peregrinos obsccena peeunia mores 
 Intulit, et turpi fregerunt secula luxu 
 Divitise molles. 
 
 But Horace goes more to the roots of things, 
 when he says 
 
 Fecunda culpa; seoula nuptias 
 Primum inquinavere et genua et domos. 
 Hoc fonte derivata clades 
 In patriam populumque fluxit. 
 
 We know Rome best during the last age of the re- 
 public, 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- 
 
GEEEKS, AND BOMANS. 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 influ- 
 ences in one. A Sulpicius Gallus put away his 
 wife because she had gone abroad with her head 
 uncovered. An Antistius Yetus did the same, be- 
 cause 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 ^Emilius 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 cor- 
 respondent 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 intol- 
 erable 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 DIVOBCE A1IONG THE HEBREWS, 
 
 was often counteracted, as has been remarked, by 
 a greater advantage in prospect. 
 
 The lives of many of the most eminent Eomana 
 show how loose was the marriage tie, or how 
 great the crimes of one of the parties. 
 
 L. Lucullus, the conqueror of Mithridates, re- 
 pudiated two wives on account of their infidelity — 
 Claudia, daughter of a consul, and then Servilia, 
 half-sister of Cato the younger. Her sister, an- 
 other Servilia, the mother of Brutus, Caesar's mur- 
 derer, was a favorite mistress of Julius Caesar. 
 Caesar 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 im- 
 moral 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 
 
GBEEK3, AM) ROMANS. 47 
 
 about a year. Nor was his daughter Tullia less 
 happy in her matrimonial affairs. Her first hus- 
 band dying, she married a second, from whom ere 
 long she divorced herself, and then became the 
 wife of a most profligate man, Dolabella, who di- 
 vorced his wife Fabia, it is said, to marry her. 
 Cato the younger was married twice, and the sec- 
 ond 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 Maecenas, 
 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 fam- 
 ily life grew worse instead of better, as the repub- 
 lic fell. There were indeed efforts made to effect 
 a reform. Augustus, profligate himself, endeav- 
 ored 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 adul- 
 teriis et de pudicitia may be mentioned, and fin- 
 ally in 762 (a. d. 9), by the lex Papia Pqppcea. 
 Of these laws, so far as they related to divorce, 
 we shall say at present but a word, although they 
 
48 DIVOECE AMONG THE HEBBEWS, 
 
 form an epoch in the Eoman legislation concern- 
 ing the family relations. Divorce was now sub- 
 jected to certain formalities, being invalid if not 
 declared before seven grown-up Koman 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 in- 
 cumbent 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 con- 
 cerning dower after divorce the fault of the wife 
 subjected her to a detention of a portion of the 
 dower. This in the practice of Koman law seems 
 to have been a most important matter, but its de- 
 tails 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. He 
 who is shocked by the developments of family life 
 in the oration for Cluentius, or by such a charac- 
 ter 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, — lie 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 num- 
 ber of consuls but of husbands. The moral dis- 
 ease 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 Ameri- 
 cans, 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 sub- 
 ject (Stuttgart, 1822), Rein's Priyatrecht (Leipzig, 1836), Bekker- 
 Marquardt's Roman Antiquities, part v. (Leipzig, 1861), and 
 Rosbach's Roman Marriage, deserre, among many others, especia" 
 mention. 
 3 
 
50 DOCTEINE OF DIVOBOE 
 
 CHAPTEE II. 
 
 DOCTRINE OF DIVORCE IN JHE 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 con- 
 cerning which he passes outside of his ordinary 
 line of teaching, and enters into the region of pos- 
 itive 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, eminent- 
 ly 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 prac- 
 tice 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 Phari- 
 sees. 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 DOCTEINE OF DIVOKCE 
 
 and appear to be fragments of the same discourse. 
 Without the place in Matthew 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," oc- 
 curring 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 instruc- 
 tions in similar forms on different occasions, 
 in the one case delivering them to the people, in 
 the other to the Pharisees. Which of these harmo- 
 nizing theories is to be chosen it is not our busi- 
 ness here to decide. We assume that our Lord ex- 
 pressed 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 condi- 
 tion 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 
 TTopvela and the condition itself, we shall speak 
 hereafter. 
 
 2. Mark has the important addition, " if a wom- 
 an shall put away her husband and be married to 
 another she coinmitteth 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 coun- 
 tries, 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 DOCTEINE OF DIVORCE 
 
 already have begun to creep into Palestine ; at least 
 the license of divorce allowed by the rulers of the 
 world could not 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 in- 
 accuracy here. If there were any, it must be laid 
 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 disci- 
 ples 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 pur- 
 pose 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. He 
 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, gene- 
 ral, coarse, imperfect rule, commanding often what 
 the ethical code requires and as frequently per- 
 mitting 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 ex- 
 pressed 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, 
 
56 DOCTEINE OF DIVORCE 
 
 owing to the fact that marriage has most impor- 
 tant civil, moral, and religious relations, would in- 
 evitably 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 rever- 
 enced 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 ut- 
 most importance and of far-reaching consequences, 
 — that the Mosaic economy, although given by 
 God, was rudimentary, transitory, and accommo- 
 dated 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 beginningof a judgment pronounced 
 against the old rites, in short against the old reli- 
 gion in its external forms ; for if divorce was per- 
 mitted 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 fnrfher, 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 re- 
 markable. The freedom allowed by the law, lie 
 says, was inconsistent with the true primeval con- 
 ception of marriage. Law, a patchwork of ex- 
 pedients, needs not to conform to the true concep- 
 tion 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 legis- 
 lation, 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. 
 He who never drew from experience any judg- 
 ments concerning the human relations of which 
 he here speaks, whose vocation was too high for 
 the entanglements of family life, — this man cor- 
 rects 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 DOCTRIXE OF DIVOKCE 
 
 ■with either of the two schools which then divided 
 opinion among the Jews on the snbject of divorce. 
 The doctrines of Hillel* of course he utterly dis- 
 cards, 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 al- 
 together 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 Jew- 
 ish and Mosaical, while his line of thought must 
 have surprised the tithers of mint, anise, and cum- 
 min. 
 
 "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 com- 
 mits adultery, or, as Mark has it, commits adul- 
 tery " 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 eye of God. 
 Matthew alone preserves this declaration. 
 * See Chapter L, page 15. 
 
IN THE NEW TESTAMENT. 5J) 
 
 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 adul- 
 tery. 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 ground- 
 work 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 paribus, 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 eases of that description. This 
 esse is plain enough, but there are questions of 
 some importance and of some difficulty growing 
 
60 DOCTRINE OF DIVOKCE 
 
 out of our Saviour's words which need to he con- 
 sidered. 
 
 We notice in the first place the fact that noth- 
 ing 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 marry- 
 ing 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 opin- 
 ion, 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 nopvela in the two passages of Matthew. 
 Is it synonymous with fioixela or does it embrace 
 
IN THE NEW TESTAMENT. 61 
 
 unchaste acts not going to that length ? 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 be- 
 come one flesh, and that one of them by the vio- 
 lence 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 mar- 
 riage 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 transpirri 
 since marriage. We add that it must refer to 
 some outward act. It can not in its proper se -se 
 
62 DOCTRINE OF DIVOKCE 
 
 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 obliga- 
 tions 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 wan- 
 ton conduct in which the married pair unite, 
 which might be called impurity, or lewdness, but 
 never nopveia 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 fioix^la, 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. Lomraatsch). So Greg. Naz. says 
 (Or. 37), that Christ allows separation only from the ir6pv7i, be- 
 cause she voBsiei rb yivos. Basil in his 21st canon cited by Suicer, 
 voce ndpvoc used that word in the same way, and Balsamon re- 
 
IN THE NEW TESTAMENT. 63 
 
 But why should an exception like that in the 
 two passages of Matthew be made, if Tropveia 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 en- 
 forced, 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 
 the 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 po- 
 
 marks that he calla the adulterer a ndpvog. 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 bo 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: D0CTKINE OF DIVOECE 
 
 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 magis- 
 trates 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 there- 
 fore unwilling that the supposed crime of his be- 
 trothed should go unrebuked, and yet being re- 
 luctant 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, f 
 
 But there are frightful crimes against nature, 
 odious even to the heathen : supposing these not 
 to be included in the term nopvela will they furnish 
 no ground for divorce ? All that ueeds 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. Saalsehiitz, chapters 4 and 5, on the judges and the 
 Shotcrim. 
 
 f The notion at one time pretty common, that dimto; here 
 means mild, clement, is now nearly exploded. The betrothed was 
 treated as a wife by the law. Deut. xxii. 23. 
 
IN THE NEW TESTAMENT. 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 
 TTopveta, the generic word, is here used instead 
 of the more specific (ioi%eia. 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 satisfac- 
 tory — " that fioi%eia is avoided because the verb 
 fioixaodai is afterward used in a wider sense." 
 Perhaps the explanation may be found in the con- 
 sideration 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 ex- 
 cludes all others, unless it can be shown that they 
 are embraced under the same reason to an equal 
 or greater extent. Meyer and Tholuck 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 
 without its heing mentioned. And this remark 
 brings us to the passages in the two other Evange- 
 lists, and in Paul where no exceptional case iB 
 stated. The reason for these unqualified state- 
 ments 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 
 might well do, if the exception related to bo 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 conjugiis 
 
 * 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. 6$ 
 
 advlterinis, 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, pro- 
 nounces 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 quoad torum 
 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 DITOECE 
 
 the husband separates the married pair to the 
 same extent, and involves permission of remar- 
 riage to the innocent wife. This is generally 
 conceded by those who do not hold with the Cath- 
 olics 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 broad- 
 er 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 com- 
 mit 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 littered 
 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 forni- 
 cation ?" If TTopvsia 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 simi- 
 larly wronged. But when we consider that he 
 must have viewed the husband's crime with an un- 
 married woman as a great one, as an equal viola- 
 tion 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 ex- 
 cludes 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 lib- 
 erty of remarriage in that one case to the wronged 
 woman. And yet in the absence of any word3 
 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 un- 
 married," can only be reconciled with the words 
 of our Lord, on the supposition that this depart- 
 ure 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, mutatis mutandis, of the 
 husband, and thus forgiveness for the highest mat- 
 rimonial crime would be in 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 put- 
 ting 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 tho beginning. 
 
70 DOCTBINE OF DIYOKOE 
 
 Therefore this separatioa 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 re- 
 main 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 Apos- 
 tle's mind. Christ was arguing with the Phari- 
 sees on such divorces as were attended with a li- 
 cense 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 remar- 
 riage 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 xu>pio&%, 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 
 
Ilf 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 com- 
 mandment contained in the extant words of Christ, 
 or to some other of similar import. We have al- 
 ready observed that he coincides with Mark in 
 speaking of a wife divorcing herself from her hus- 
 band, 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 Kom. 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 on- 
 ly in such a case could it be regarded as the practi- 
 cal 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 
 
72 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 discuss- 
 ing 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 rea- 
 sons 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 oc- 
 curred 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 far — 
 such is the sense of ita\ — 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 ami- 
 cable settlement of the difficulties, to the former 
 condition. Here 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 remar- 
 riage would be legalized, or it can include the 
 declaration of a purpose of divorce besides. We 
 question whether it means so mucli as this, al- 
 though it is used as the equivalent of a.<pir\^,i. For 
 the Apostle says, " let her be reconciled," which 
 seems to imply that mere peace between the par- 
 ties 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," im- 
 plies the power of sooner or later contracting a le- 
 gal marriage with another man. But whatever 
 may be thought of this, it is obvious that the Apos- 
 tle conceives of a state of things in which a wo- 
 man, separated from her husband, and that, it may 
 be, permanently, shall have no right, according to 
 the Lord's commandment, of marriage with an- 
 other man. In other words, we have here an ac- 
 tual separation a mensa et toro without a separa- 
 tion a vinculo matrimonii. This third state be- 
 tween absolute divorce and the full 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 
 
74 DOCTRLNE OF DIVORCE 
 
 of the Saviour's commandment. It may be in- 
 troduced 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 par- 
 ties 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 
 from 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 connec- 
 tion with a heathen, however ignorantly or inno- 
 cently 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. 15 
 
 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 be- 
 come 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 ex- 
 plain the tense), let him take his course unhin- 
 dered. 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 obliga- 
 tion 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 <K, as pointing to 
 
76 DOCTKINE OF DIVOEOE 
 
 This is an important passage, as furnishing the 
 authority, if there be any in the scripture, for di- 
 vorce 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 x u pK eTal - 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 equiva- 
 lent to Eif, and explains it, " so as to be in peace," which is really 
 admitting what he condemns. De Wette follows him. Harles3 
 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 thou — 
 whether," 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 dis- 
 suasive against separation. But logic will not bend to this ren- 
 dering. We ought to have for it a different context. It would 
 require ri 6e instead of rl 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, Riickert, 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 21. 
 
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 ob dedouXurai, " is not 
 under bondage," to deny the necessity of remain- 
 ing unmarried, and infer from it the lawfulness 
 of taking another husband or wife under the con- 
 ditions 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 pas- 
 sage, both divorce and second marriage to a Chris- 
 tian separated from a heathen by the agency of 
 the latter.* The prevailing view among the Prot- 
 estants 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 un- 
 married, 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 
 (Deeret. Grat., ii. ,Caus. xxviii., Qu. 2, C. 2, and Decretals, iv., 
 19, de divortiis, Cap. 1), this text is cited as the authority. It 
 should be added, however, that the opinion entertained in the 
 ancient church concerning heathen marriage facilitated this al- 
 lowance of remarriage where the parties had been heathen. 
 
78 DOCTEINE OF DITOECE 
 
 Others draw this right of remarriage as an in- 
 ference 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 con- 
 sider 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 recon- 
 ciled to the other ? 
 
 "We will first look at the meaning of ob detiobXurai. 
 The verb has been compared by some with diSerai, 
 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 con - 
 nection 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 dedoulurai does not deny the obligation to re- 
 main 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 tins is 
 not so much a permission of separation as an as- 
 sertion that, if on other grounds a separation has 
 taken place, there is no obligation on the Chris- 
 tian 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. " Protes- 
 tant 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 Chris- 
 tian 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 such 
 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 cita- 
 tion 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 DOOTKINE OF DIVOECE 
 
 living together, — and in verses 10, 11, x<>>p!&o0ai 
 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 re- 
 marriage 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 cohabi- 
 tation with an- unbeliever, who disturbs his part- 
 ner'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. Ton are not bound to stay with him 
 to secure his conversion, for this is an uncertain 
 thing." 
 
 But, it maybe asked, why did the Apostle think 
 it worth his while to give a decision in such cases, 
 ■if the decision amounts only to a license of non- 
 cohabitation, without granting the power of re- 
 marriage ? 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 un- 
 married or to be reconciled — had no existence in 
 the ease of which the latter verse treats; that 
 here, in fact, the believer is neither bound to 
 remain unmarried nor to be reconciled to the infi- 
 del 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 un- 
 clean ; the contamination spread over the family 
 relations, and a wife, for instance, looked with in- 
 ward 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 inter- 
 fering with their dearest rights and hopes, deter- 
 mined to separate from them, but who were 
 
 4* 
 
82 DOCTEINE OF DIVOKCE 
 
 morbidly conscientious lest by consenting to sucli 
 separation they should hinder the conversion of 
 the unbeliever. Was it not well worth the Apos- 
 tle'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 im- 
 probability, inherent in the case itself, that the 
 Apostle would have given such a permission. 
 The word xupt&rai 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 "bond- 
 age " 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 contra- 
 diction between them. The Christian wife or 
 husband must accept as a fact what the unbeliev- 
 ing 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 as- 
 sumption 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 with 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 ap- 
 plication for his rule. If those Pharisees whom 
 he addressed in Matthew, chap, xix., admitted the 
 force of what 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 DOCTBINE OF DIVOECE 
 
 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 contubernium, 
 to which the laws that govern Christian marriage 
 were inapplicable. -But the Apostle nowhere in- 
 dicates that he holds any such opinion. Marriage 
 with a heathen was, indeed, in his view a viola- 
 tion 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 himself partook of a kind 
 of sanctity and the children were holy. To ap- 
 ply the rules of Ezra's time to the time3 of the 
 kingdom of God, to require that the idolater must 
 be separated from the believer in the near rela- 
 tions 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 
 mother, 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 aa 
 
m THE NEW TESTAMENT. 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 natu- 
 ral 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 conceiv- 
 ing of, and to a certain degree, authorizing sepa- 
 ration 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 oiie of 
 the parties was a heathen, but extending his prin- 
 ciple so as to include all cases of d esertion, has open- 
 ed a wide door for divorce in Protestant countries. 45 
 
 * For certain passages of the New Testament having a pos 
 sible bearing on divorce, see note 1, in the Appendix. 
 
86 LAW OP DIVORCE IN THE KOMAN EMPIEE, 
 
 CHAPTER III. 
 
 LAW OF DIVORCE IN THE ROMAN EMPIRE, AND IN 
 TEE 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 opin- 
 ion until it became the canonical law of the Cath- 
 olic Church 
 
 In the first chapter of our essay on divorce, we 
 were able to do little more than allude to the legis- 
 lation 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 mar- 
 riage. The emperor and his advisers were, without 
 doubt, alarmed by the wide-spread violations of the 
 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 CHUKCH. 87 
 
 keep mistresses than to be encumbered with the 
 expensive cares, and tried by the 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 aris- 
 tocracy. 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 inheri- 
 tances or legacies, except where the testator was a 
 very near relative. And, on the other hand, mar- 
 ried 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 pre- 
 cedence of their colleagues who had no such merit ; 
 they were exempted from certain burdens, and en- 
 joyed certain rights of inheritance from which 
 others were excluded ; they incurred a milder pen- 
 alty, when they had committed offenses calling for 
 confiscation of property. Married women, too, 
 who had borne three children, 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 OP DIVOKCE IN THE KOMAN EMPIRE, 
 
 his wife, being his former slave, could not sepa- 
 rate herself from him without his consent. 
 
 A very revolting part of the legislation of Au- 
 gustus 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 there- 
 fore 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 Chris- 
 tian 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 com- 
 mon 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., § 1 2, p. 460, ed. Duneker. 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 though 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 chil- 
 dren by medicines procuring abortion, because, owing to their 
 family connection and great property, they did not wish to have 
 
AND EST 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 com- 
 mon consent, or by action of one of the par- 
 ties. 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 -mores 
 leviores or more trifling offenses against the pro- 
 prieties 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 in- 
 capacity 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, andof the trial of eon- 
 duct 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 re- 
 quired 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 EOMAN EMPIRE, 
 
 matrimonial right?, but under the empire, al- 
 though 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 Em- 
 peror 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 look- 
 ing 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 proseeutions.f 
 
 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 Augus- 
 tus. The principal penalties we have already 
 mentioned as being relegation and a loss of prop- 
 erty. 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. She could no lon- 
 ger wear the matron's stole nor appear as a witness 
 in the courts. The man also lost the right of tes- 
 timony, and, if a soldier, was shut out from the 
 army. The Christian emperors increased the se- 
 verity 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 legis- 
 lation 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 vis- 
 ited 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 Con- 
 stantine. 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. Eor, 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 unre- 
 stricted. 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 (poenm vinculo 
 obstringi), that is that two parties ought not to be 
 forced by fear of penalty either to enter into a 
 state of wedlock to which they were pledged, or 
 to keep up such a state if they were agreed to the 
 contrary. And it was laid down that marriage 
 was so free, according to ancient opinion, that 
 even agreements between the parties not to sepa- 
 rate from one another, could have no validity, 
 
 * See Rein, u. s., 848-852, and Novell., 134, § 10, which re- 
 news Constantino's legislation. 
 
AND IN THE CHRISTIAN CHUECH. 93 
 
 {pacta ne lieeret divertere non valere).* In the 
 second place, the laws affected but a small part of 
 the population of Home. 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 to- 
 gether 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 con- 
 clude 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 free- 
 men 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,! where one of the parties ter- 
 minated the union without the consent of the 
 
 ' * Paulua 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 ease of a freed woman married to her 
 patrou 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 KOMAN EMPIBE, 
 
 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, he might be liable to pay over the whole 
 of the dower, and that within a short term. The 
 parties were subjected until the time of Justinian 
 to a judicium morum, which might be instituted 
 on a complaint of either consort. The fear, then, 
 of losing a portion or the whole of the dower, and 
 the dread of a loss of reputation, when the conduct 
 of the parties in their married life should be in- 
 vestigated, seem to have been the only induce- 
 ments to prevent one-sided divorces. But what if 
 no misconduct could be alleged on the part of the 
 man, what if he dismissed his wife to marry a 
 richer woman, the law in this case had no restrain- 
 ing 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 as- 
 cended the throne. Caligula sent away his wife 
 and married another, whom he took from her hus- 
 band 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 barren- 
 ness. Claudius repudiated four wives, and tbe 
 fifth by taking poison escaped a similar lot. Nero 
 and Domitian supply us with instances of divorce. 
 
AND IN THIS CHRISTIAN CHUBCH. 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 send- 
 ing 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— 2>«&sis jplerisque praegnantibus, as 
 the historian Vopiscus writes — are not easily 
 matched, unless by the feats of those Koman 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 Yalentinian 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 
 higher 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. Mar- 
 riage had been a mere civil contract : the half- 
 measures, 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 jus- 
 tice, something on behalf of the sanctity of mar- 
 riage 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 di- 
 vorces by consent of the parties. His legislation 
 went no farther than to fix the cases in which the 
 parties could without fault separate from one an- 
 other. 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 CHCRCH. 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 ex- 
 presses it, and acquire possession of the entire 
 dower of her successor. Of Constantine's penal- 
 ties for adultery we have already spoken. 
 
 We add, as showing 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 chil- 
 dren or to their mothers in the way of donation 
 or testament. But this last law was overturned 
 by Yalentinian I. and was not restored afterward 
 in its full severity until the Emperor Leo, the phi- 
 losopher (in Cent. 9), abolished concubinage in 
 the East. Justinian extended the principle of 
 legitimation introduced by Constantine to the 
 
98 LAW OF DIVOKCE IN THE EOMAN 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. d. 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 alarm- 
 ingly increased, gave out another law, which laid 
 down the causes for which one party might law- 
 fully 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 
 Honorius and those of Theodosius had their pen- 
 alties 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 communi consensu^ 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 as- 
 serted. As late as Anastasius, the second empe- 
 ror 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 communi con- 
 sensu. Now the penalty for both parties was, to be shut up in a 
 monastery and to ldse their property. But if persons attempting 
 to separate from one another in this way recalled their act be- 
 
100 LAW OF DTVOECE IN THE EOMAN EMPIEE, 
 
 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 bond gratia, 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 om- 
 nem causam), which was visited with special pun- 
 ishments, 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 rea- 
 son. 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 sum- 
 ming up of what has been said we remark : 
 
 fore going into the monastery, they might escape from these pen- 
 alties. 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 CHUBCH. 101 
 
 1. That divorce ex commimi consensu 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 pun- 
 ishment 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 influ- 
 ence 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 Eoman 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 lie 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 
 6anctity 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 Testa- 
 ment, and on the spirit of Christianity which 
 harmonized entirely with express declarations. 
 Marriage 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 which the name of sacra- 
 ments 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 CHURCH. 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 Mon- 
 tanism, almost deserted this position, when he in- 
 veighed 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 malum est et 
 ignoscitur, ideo conceditur, ne malo quid deterius 
 fiat." But his logic came back to him when he 
 grew cool, and in general the doctrine that mar- 
 riage 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 vir- 
 ginity, to professions of widowhood, and to a soli- 
 tary or social life of abstinence from marriage. 
 Hence too the discouragement, in the case of lay- 
 men, of a marriage subsequent to the first, 
 toward which such dislike was sometimes felt, 
 that a Father of the second century could call 
 
104 LAW OF DIVOECE IN THE EOMAN EMPIEE, 
 
 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 punish- 
 able with a loss of office, and to extend the pro- 
 hibition 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 mar- 
 riage 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 Jeromo disparaged marriage, he freely admitted, as 
 did most others, that any number of successive marriages was 
 not unlawful. " Hon damno bigamos, imo nee trigamos et si dici 
 potest octagamos." Ad Pammach. Apologet. c. Jovin. 
 
AND IN THE CHRISTIAN CHUECH. 103 
 
 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 Scrip- 
 tures 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 im- 
 portant 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 re- 
 main unmarried. When forgiveness and restora- 
 tions ad integrum, 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 ex- 
 plained by Paul, the sacramental quality of mar- 
 riage, 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 follow- 
 ing 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 
 
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 con- 
 tracted a second marriage. Here again there was 
 no true divorce, for the divorce and remarriage of 
 both the parties was regarded as unlawful. Third- 
 ly, 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 sepa- 
 rated from the infidel so as to contract a new mar- 
 riage.* 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 db initio — which is not 
 divorce in the proper sense — or merely justified a 
 separation a mensa et toro, if even that were 
 allowable.f 
 
 * The opinion of Innocent III. in the Decretals of Gregory IX., 
 §§ 7, 8, de divortiia 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 CHURCH. 107 
 
 A very early and important passage on divorce 
 is contained in the Shepherd of Hermas (ii. Man- 
 dat. 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 the man sin if he lived with her ? And he 
 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 sin and partaker of her adul- 
 tery. 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, [?'. e. remain un- 
 
 heretics was forbidden and declared null, although in Eussia 
 since 1719 members of the established church may marry mem- 
 bers of other confessions. In the Latin church marriage with 
 infidels or Jews has long been considered invalid. But for Catho- 
 lics 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 mar- 
 riage 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. 
 (1740-1758), as well as in the western Prussian provinces since 
 Pius VIII. (1829 onward), mixed marriages, celebrated not ac- 
 cording to the form prescribed by the Council of Trent, but in 
 one sanctioned by the law of the laud, are regarded as real valid 
 unions. (Walter, Kirchenr., §§ 300, :-)18). 
 
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 incum- 
 bent 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 Gen- 
 tiles 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 com- 
 mand 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 tc 
 mean that only once and not more than once after baptism, a sin 
 ner who has committed an act of open deliberate immorality ca& 
 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 despai' 
 — this is what is meant by " on account of repentance a man ought, 
 not to marry" another woman. The indulgence of Hernias in 
 
AND IN THE CHRISTIAN OHUECH. 109 
 
 In this passage it is distinctly asserted that a 
 man who puts away an adulterous wife, and mar- 
 ries another woman, commits adultery ; and anoth- 
 er reason is given for his remaining unmarried — 
 namely that he may be in a condition to receive her 
 back on her repentance. But such indulgence can- 
 not 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 Oor. vii., " let her remain un- 
 married, or be reconciled to her husband," and 
 Hernias conceived that the reconciliation there re- 
 ferred to was to follow a separation on account of 
 the adultery of the hnsband. 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 hus- 
 band. Thus his injunctions are all scriptural, 
 according to his understanding of Scripture. He 
 may have been weak-minded, he may have mis- 
 understood Scripture, as we think that he did, 
 but he represents an opinion that must have been 
 extensively held, and at length became the rul- 
 ing 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 ex- 
 ceedingly distasteful to Tertullian, after he became a Montanist. 
 Comp. his de pudicitia, §§ 10, 20, where he has the words "scrip- 
 tura Pastori3 quas sola mceehos 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 THE ROMAN 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 di- 
 vorced 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 Eom. 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 
 conjugiis adulter inis, to which we have already 
 referred, was written especially to show that 1 Cor. 
 vii. 11, "let her remain unmarried, or be recon- 
 ciled 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 Lommatach, vol. 3, 
 p. 320. For Tertullian, see ds Honogam., §§ 9, 10. 
 
AND IS THE CHRISTIAN CHUECH. Ill 
 
 erfully, if inconclusively. His friend Pollentius 
 had maintained that in this passage she was to re- 
 main unmarried, quae sine causa fornicationis dis- 
 cessit a viro, thus interpreting it correctly, as Chrys- 
 ostom 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, quae a virismis 
 ea causa recesserint, qum sola permissa est, id est, 
 fornioationis. 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 tan- 
 quam. post mortem, ita post fornicationem conjugis, 
 alteri copulari. In this work Augustin comes 
 on ground where Hennas 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 compara- 
 tively trilling reasons. 
 
112 LAW OF DIVORCE IN THE ROMAN EMPIRE, 
 
 been washed by baptism or healed by repent- 
 ance?" 
 
 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 re- 
 marriage of a Christian lady of high condition. 
 Fabiola had a worthless, licentious husband. She 
 had a right, says Jerome, to repudiate him, al- 
 though 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," " in quo 
 nubendi universa caussatio, viventibus viris, femi- 
 nis amjputatur; 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 un- 
 married, I will readily admit her fault, while I ad- 
 
 * Ubioumque est igitur fornioatio et fornicationis suspicio libere 
 uxor dimmittitur. Et quia poterat accidere ut aliquis calumniam 
 faeeret innocenti, et ob seeundam copulam nuptiarum veteri 
 crimen impingeret, sic priorem dimittere jubetur uxorem, ut 
 seeundam 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 posi- 
 tion, 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 : sicdolebat quasi 
 adulterium com?nisisset. 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 separa- 
 tion was unlawful in the Christian Church, that 
 only separations a mensa et toro were possible. 
 The proofs of this are abundant, but they are need- 
 less, as the fact of a prevailing, and at length a 
 universal opinion in the direction named is un- 
 questioned, f No doubt the development of the 
 sacramental theory contributed to the consoli- 
 dation of this opinion. "A true marriage," says 
 Innocent III., " can exist between infidels (amat- 
 rimonium verum), but between the faithful mar- 
 riage is both true and fixed (verum et ratum), be- 
 cause the sacrament of the faith which is once re- 
 ceived 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. 11 of the Venice ed. of 1166. 
 
 \ Consult the decree of Gratian, Caus. xxvii., Quaest. vii-, a 
 number of the Canons, Walter's Kirchenrecht, § 313, and the long 
 noteofCotelerius, Patr. ApostoL 2, 88 (ed. Amstelod., 1124). 
 
114 LAW OF DIVORCE IN THE BOM AN EMPIRE, 
 
 nothing essentially new was deduced froniNthe sac- 
 ramental theory. 
 
 "While in the "Western Churcli marriage be- 
 came 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 con- 
 form 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 em- 
 perors. 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. f 
 
 Nor ought it to be supposed that in the West- 
 era Church opinion in regard to the lawfulness of 
 remarriage after divorce ran altogether in one di- 
 rection. The " leaders of the church," to whom 
 Origen refers in a passage we have cited, held 
 that an innocent party might remarry when di- 
 vorced 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 CHUECH. 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 say- 
 ing 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 unquestion- 
 able 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 (veniali- 
 ter ibi qzdsque fallatur).* The same thing is 
 taught so far as the innocent husband is con- 
 cerned, 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 " ex- 
 cept for the cause of fornication must here be 
 
 * Cited by Richter, Kirchenr., § 232. 
 
116 LAW OF DIVORCE IN THE BOMAIT EMPIRE, 
 
 understood. And for this reason Paul does not 
 subjoin concerning the man what he had said be- 
 fore 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 adul- 
 tery, according to which "sola muUer adultera 
 est, qum habet alium, Tnaritus autem, etiamsi plu- 
 res hdbeat 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 pun- 
 ished than the sinning woman.* To those who 
 held the freer opinion that marriage was in one 
 case dissolved, may be added the Council of Yer- 
 merie 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 adul- 
 tery, f 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. }., 8, ii., 8. 
 
 f In the decree of Gratian, Caus. xxri.. Quaest. 1, o. 6. 
 
AND IN THE CHRISTIAN CHURCH. 117 
 
 then been long admitted without dissent for ages, 
 when it enacted the seventh canon on the sacra- 
 ment of marriage, of which we gave the leading 
 part in our last 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 dis- 
 solved only by death, the intention of the church 
 was £o 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 Y. (Cent. 9) the husband could 
 decide whether he would receive back a guilty 
 wife after she had undergone seven years of pen- 
 ance or be separated from her altogether. To be- 
 come 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 adul- 
 ; terous 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 DIV0BCE IN THE SOMAN EMFIKE, 
 
 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 mediae- 
 val 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 de- 
 clares the marriage invalid; it pronounces a 
 decree of nullity ; it declares that the parties 
 cannot lawfully live together hereafter, and pos- 
 sibly 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, u. 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. 1, c. 
 19, 20. 
 
AND IN THE CHRISTIAN CHUKOH. 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 dispensa- 
 tions and to a gainful traffic in sacred things. 
 
 The impediments to marriage which went be- 
 yond putting off its solemnization, and which with- 
 out 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 mis- 
 take as the procuring causes of the consent, impu- 
 berty, impotence, a previous marriage, the vow at 
 ordination or in entering a monastic order, differ- 
 ence of religion, and a certain closeness of rela- 
 tionship. 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 bap- 
 tized person ; and the case where one of two Jew- 
 ish or infidel married partners becomes a believer 
 is subjected to other rules founded on 1 Cor. vii. 
 12-16. The impediments from nearness of rela- 
 tionship, 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. JSText, 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 DIVORCE IN THE BOMAN EMPIRE, 
 
 source might arise impediments to a second mar- 
 riage 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 god- 
 mother 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 de- 
 scendants 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 W THE CHBISTIAN CHtJKCH. 121 
 
 Great (a. d. 601) writes to his missionary in 
 England, Augustin, permitting persons of the 
 fourth and fifth degrees of relationship* to inter- 
 marry 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 didloi- 
 mus ex tali conju<jio sdbolem non posse sucores- 
 sereP But the rule of the seventh degree hav- 
 ing 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 copuloe conjugalis 
 quartum consanguinitatis et affinitatis gradum 
 non excedat, which was so modified by Gregory 
 IX. who had the decretals compiled, that a per- 
 son in the fourth and one in the fifth, or third 
 and fourth cousins, might be united in lawful 
 marriage.f 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. hit., Quaest. 5, c. 2. It is Alexander's edict. 
 The genuineness of Gregory's letter has been doubted. Compare 
 Kichter, § 168. 
 
 f A reason alleged for this was that quatuor sunt humores in 
 corpore, qui constant ex qvMuor eiementis. Decretal. Greg, iv., 14, 
 cap. 8. 
 
 6 
 
122 LAW OF DIVORCE IN THE E01IAH EMPIRE, 
 
 enth degree. In the Greek Church the hlood rel- 
 atives of the married pair were considered to 
 have contracted affinity with one another, hut not 
 in the Latin, except that the children of a wom- 
 an's second marriage were looked on as stand- 
 ing 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 narrow- 
 est 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 rest- 
 ed on other than fixed moral grounds, the pope, or 
 others acting with derived authority, could dis- 
 pense with the rules of the church, and this was 
 done frequently, with or without reason. The 
 Council of Trent makes the general order that dis- 
 pensations are to be given beforehand either not 
 
 * Comp. "Walter u. s. § 303-308, and Gjschen m Herzog's 
 Bncyol. 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 CHUECH. 123 
 
 at all or rarely, and, if at all, for good cause and 
 gratuitously. There are to be no dispensations be- 
 tween parties standing in the second degree, nisi 
 inter magnos princijpes et ob pvhlicam causam. 
 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.J can prevent 
 the contracting of marriage or separate it when 
 contracted, or that the church cannot give a dis- 
 pensation 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 dis- 
 pensation, 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 after- 
 ward good reason for believing that it was an un- 
 lawful one, the case was brought before an ecclesias- 
 tical court. Where the impediments were of a pub- 
 lic character, a public authority alone could in- 
 stitute a process of nullity, but where the impedi- 
 ments 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 con- 
 tract marriage with other persons, but the va- 
 lidity 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 re- 
 cover its obligatory force, so that now two separa- 
 tions, it might be, would be demanded by canoni- 
 cal law. The separations by sentence of nullity 
 were formerly called divorces as well as the separa- 
 tions a mensa et toro on account of adultery, but 
 a modern distinction of some Catholic writers be- 
 tween annullatio and separatio removes all am- 
 biguity.* 
 
 We may sum up what has been said of the sepa- 
 ration of married partners during the early and 
 mediaeval 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- 
 
 * ComD. especially Goschen in Herzog, u. s., 69T-10O. 
 
AND IN THE CHRISTIAN CHUECH. 125 
 
 tians, justified the other in marrying again during 
 the life of the offending party. 
 
 2. When an infidel deserted his or her Chris- 
 tian consort, the latter was allowed to proceed to a 
 second marriage. 
 
 3. The development of the theory of the sacra- 
 ment, 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 for- 
 giveness and reconciliation, being Christian duties, 
 could now be exercised, consorts separated on ac- 
 count 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 iwas satisfied. 
 
 5. In many cases where marriage was prohibit- 
 ed by canonical law, a sentence of nullity left 
 them free to unite themselves to other persons.* 
 
 * Comp. Walter u. s. §§ 303-308, and Goschen in Herzog'a 
 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 DIV0KCE AND DIVORCE LAW IN EUROPE 
 
 CHAPTER 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 his- 
 tory 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, espe- 
 cially 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 mar- 
 riage 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 celi- 
 bacy the source of boundless profligacy, a clergy 
 all over Christendom living in secret sin and hy- 
 pocrisy, 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 toler- 
 ated. To this the doctrine that no crime dis- 
 solved marriage, that adultery only separated the 
 marriage pair without giving relief to the inno- 
 cent 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 mat- 
 ter to call rather for ridicule than for condemna- 
 tion. 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 for- 
 bade to some what God had allowed to all, it 
 opened a fountain of vice with the smallest in- 
 
128 DIVOECE AND DIVORCE L£W IN EUBOPE 
 
 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 inter- 
 pretation 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 can- 
 on 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 con- 
 tradict themselves in different passages of their 
 works. Thus Luther in his sermon on marriage, 
 delivered at Wittenberg in 1525, uses the follow- 
 ing language : "that [Matth. xix. 9] is a blunt, 
 
SINCE .THE BEFOKMATION. 129 
 
 clear, plain text, which says that no one, either on 
 account of leprosy or stinking breath or other 
 defeat, shall forsake his wife, or the wife her hus- 
 band, except on account of whoredom and adul- 
 tery. For 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 pro- 
 nounces the following decision : ' if the unbeliev- 
 ing depart, let him depart ; the brother or sister 
 is not bound in such cases.' So say I, too. "Who- 
 ever 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 Melancthon, allows a woman of Nord- 
 hausen, whose husband had absconded several 
 years before, to marry again, according to "the 
 decision of Paul, and according to the former 
 
 6* 
 
130 DIYOECE AND DIVORCE LAW IN EUEOPE 
 
 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 eheliohen Ziehen," belonging to 
 the year 1522, Luther mentions three causes jus- 
 tifying the dissolution of marriage, of which the 
 first, existing already before marriage, is a reason 
 for a sentence of nullity, and therefore has noth- 
 ing to do with divorce proper ; the second is adul- 
 tery ; the third is, " when one of the parties with- 
 draws 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 ob- 
 stinate 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.' 
 Tet so that the husband give her two or three 
 warnings beforehand, and let the matter come be- 
 fore 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 Vashti 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 di- 
 vorce. 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 dis- 
 solved — 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 de- 
 serts, 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.' "f 
 
 * These passages are all found ia Walch's ed. of Luther's 
 works, vol. x. See pages 79?, 886, 884, 121-727. 
 
 f Examen Cone. Trid., ii. 430, of the Fro.nkfort ed., 1615. We 
 do not find the passage here cited in Chrysostom's Homily on this 
 chapter. 
 
132 DIVORCE AND DIVOKCE 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, ma- 
 licious desertion, and plotting against the life of a 
 consort are not regarded as the only causes, but 
 rather as the standard causes of divorce, and 
 to the judge it is left to decide what others shall be 
 put by their side. And not only this, but cruelty, 
 madness, leprosy, are mentioned as causes which 
 the judge can take into account.* 
 
 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, inliis. 
 treatise on divorce, all decide in the negative, f 
 
 The views of Calvin are somewhat obscurely 
 expressed in his annotation on Matt. xix. 9, oc- 
 curring 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 G6- 
 schen, professor of law at Halle. 
 
 f Calvin, Epkl, 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 con- 
 sort is cast off by an unbeliever from a hatred of 
 religion — be does not differ from the mind of 
 Christ. For he does not discourse there on a jus- 
 tifiable cause of divorce, but only whether the 
 woman remains bound to her husband when she 
 has been impiously cast oft 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 morta- 
 li) 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 objec- 
 tions 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 vinculo is 
 there expressly allowed in cases of malicious de- 
 sertion.* " If a man," it is there said, "being 
 
 * He returned from Strasburg, Sept. 13th, 1541, and the or- 
 dinances were passed Nov. 20th following, and went into effect 
 Jan. 2d, 1542. 
 
184 DIV0ECE AND DIVOECE LAW IN ETJEOPE 
 
 debauched, abandon bis 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 un- 
 til 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 ab- 
 sent man return afterward, let him be punished, 
 as shall be judged reasonable."* 
 
 With Calvin, his disciple Beza agrees in his opin- 
 ions concerning divorce. In his note, indeed, on 
 1 Cor. yii. 15, he says, " non hie conceditur divor- 
 
 * For this extract and for all other references to early Protest- 
 ant church ordinances on divorce, we are indebted to a progratrme 
 of Prof. Goschen of Halle, " doctrina de matrimonio ex ordina- 
 tionibus ecelesiae evangelicse saeculi deeimi sexti adumbrata." 
 Halle, 1847. In his article, " Ehe" in Eerzog's Encxjcl, the same 
 learned lawyer gives again some of the same matter. 
 
SOTCE THE REFORMATION. 135 
 
 tium, sed desertse tantura consulitur," which might 
 leave us in doubt how he explained Paul's words. 
 Bat in his treatise, de 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 en- 
 tirely free to marry if .she will. And in a letter to 
 the churches of Neufchatel, in reply to the ques- 
 tion 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 a toro et mensa but also from the 
 marriage tie to the deserter." Aretius of Berne 
 on Matth. xix. : " This one cause of lawful sepa- 
 ration [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. "f 
 So in century seventeenth, Grotius : " She is not 
 bound to remain unmarried and to wait for or to 
 seek for reconciliation. Christ's law is of force 
 
 * Beza de repudiis et divortiis, Op. ii. 94, 95, Genev., 1582, and 
 Epist. x., in vol. iii., 215. 
 
 f He means apparently his thaoloqim prdbUm.aia,or loci communes. 
 
136 DIVORCE AJID DIVORCE LAW IN EUROPE 
 
 when the parties are his disciples." Calixtus : 
 " She is not bound to cohabit or to remain unmar- 
 ried." Milton'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. "Whitby, as nearly as 
 we can understand him, is on the other side, and 
 Hammond, 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 dis- 
 agreeing with the current Protestant interpreta- 
 tion* 
 
 It is not strange that the ecclesiastical ordinan- 
 ces, which are platforms of discipline, and in some 
 Protestant territories took the place of the old ca- 
 nonical 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 Nord- 
 lingen speaks thus : " In the matter of divorce we 
 follow our Lord Jesus Christ, Matth. xix, not per- 
 mitting true divorce, as far as it depends on us, ex- 
 cept 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, Cwce philolog. on the passage in Corinthians, 
 where thej 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, Matth. xix." So the 
 " church-order of the Netherlander at London ' ' 
 (1550) : " from all these words of the Lord one may 
 easily perceive that the marriage bond is exceed- 
 ingly strong, and that it can be broken only by 
 death and whoredom." 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 fornica- 
 tion, 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-Liineberg (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. 
 
138 DIVOECE 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 accord- 
 ing to Christ's words, Matth. xix. ... In the 
 second place, in cases of malicious desertion, run- 
 ning away and abandonment, of which St. Paul 
 speaks, 1 Cor. vii." And the last-mentioned ordi- 
 nance says that " whatever besides these two causes 
 [adultery and desertion] has been brought in by 
 some emperors, as Theodosius, Yalentiuian, 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 di- 
 vorce so often spoken of. Those of Zurich we have 
 already mentioned. A Prussian consistorial ordi- 
 nance, in cases of cruelty after fruitless attempts 
 to reform the man by discipline, allowed a separa- 
 tion 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 re- 
 mitted from the matrimonial to the secular court. 
 The question was discussed among the reform- 
 ers whether tb^e adulterous party ought to be 
 
 * All these instances are from Prof. Goschen's programme. 
 
SINCE THE KEFORMATTOIT. 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 right- 
 eous penalty, the smallest evil is to grant liberty 
 of remarriage in such cases.* 
 
 The church laws of the seventeenth and eigh- 
 teenth centuries in Germany very generally con- 
 cede divorce only in the two cases already named, 
 
 * Luther's words are (Walch, x. 724), " but if the civil author- 
 ities 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 exam- 
 ples (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 worn- ■ 
 an who had thus sinned] should be prohibited from marrying du- 
 ring life-time. Thus it is necessary that one indulgence draw with 
 it another. Tet 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 DIVOKCE AND DIVORCE LAW IN EUKOPE 
 
 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 matri- 
 monial duty. 
 
 Meanwhile, a new turn was given to opinions 
 concerning divorce toward the end of the seven- 
 teenth century. Thoma&ius (ob. 1728), a profes- 
 sor 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 look- 
 ing at it only as a civilian.* 
 
 He had vast influence on his age and many fol- 
 lowed in his steps. Thus Kayser, afterward a 
 professor at Giessen, in a disputation of the year 
 1715, regards as good grounds for divorce, incom- 
 patibility of temper, contagious disease, cruel treat- 
 ment, irreconcilable animosity, and other grounds 
 rarely or never held to be sufficient before. Mar- 
 riage is now coming to be regarded as a contract 
 for attaining merely outward ends, as an institu- 
 tion to be shaped and modified by the state, ac- 
 cording 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 Eerzog's 
 Encydop., voL zvi., and his " Preliminary History of Rationalism," 
 iL, 2, 61-T6. 
 
SINCE THE BEFOKMATION. 141 
 
 their expression first in the legislation of Prussia.* 
 In 1749, 1751, 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 re- 
 quired 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 hos- 
 tility " 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 (sssvitia) of the hus- 
 band, 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 "AUgemeines Landreckf." we rely on an Essay by Savigny, 
 entitled " Reform of the Laws concerning Divorce," in Ms Miscell. 
 Works (Termischt. Schrift.), v. 222-414. 
 
142 DIVOECE AND DIVOBOE LAW IN EtJEOPE 
 
 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. He there- 
 fore issued an edict complaining of the frivolity 
 with which divorces were sought, the readiness to 
 contract inconsiderate marriages, the evils to fami- 
 lies, 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 KEFOBMATION. 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 intercourse, 
 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 hus- 
 band 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 (6T6-693.) 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 1 divorce. But persons of 
 lower condition shall not have divorce granted to 
 
 * Preuss. Landrecht, II., part I., chiefly §§ 668-834. We quote 
 the sections. 
 
144: DIV0BCE AND DIVOBCE 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. In- 
 compatibility 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 suffered, 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 6teps 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 under- 
 standing between the alienated parties (714). 
 
 The causes for divorce which may be referred to 
 accident or visitation of providence are these : in- 
 curable impotence supervenient after marriage, to- 
 gether 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 REFORMATION. • 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 disincli- 
 nation of one party toward the other, not sus- 
 tained 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 urg- 
 ing this plea against the other's will must be de- 
 clared to be in fault, and is liable to the penal- 
 ties, 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 te*m a new attempt at reconcili- 
 ation must be made, and if this is ineffectual, sen- 
 tence 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 
 1 
 
146 DIVORCE AND DIVOECE LAW IN EUE01 J E 
 
 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 contract- 
 ing 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 va- 
 riance 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 nup- 
 tials (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 fol- 
 lowed to some extent the provisions of the Roman 
 code. At the time of the process it must be deter- 
 
SINCE THE EE3T0EMATI0N. 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 indi- 
 rectly. 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 oris prin- 
 cipally 60, 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 com- 
 mon stock before marriage, or added since. But in 
 the case of persons from whom a divorce is ob- 
 tained on account of certain visitations of Provi- 
 dence, 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 com- 
 pensation 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 DIVOBCE AND DIVOBCE 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 misfor- 
 tune, 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 satisfac- 
 tion, 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 (745-823). 
 
 Marriage in Prussia, ss 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 heathen- 
 ish 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 m*st 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 commissions, the one 
 in 1842, the other in 1844. He must have been 
 in the counsels which originated one or both of 
 these. We have no room to describe their pro- 
 visions, 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 inter- 
 course contrary to the order of a court. Besides 
 these, the first commission of 1842 eliminates mad- 
 
150 DIVORCE AND DIVOEOE LAW IS 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 
 outrages, — quarrelsomeness, danger to life, honor, 
 office, or business by 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 
 when 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 weae ineffect- 
 ual, 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 ex- 
 periments in divorce legislation coincide nearly 
 witli the phases of political revolution. The old 
 system, conformable to the ecclesiastical law of di- 
 vorce, was overthrown by a new divorce law passed 
 
SINCE THE REFORMATION. 151 
 
 Sept. 20, 1792, at the opening of the National Con- 
 vention. In this new law three causes of divorce 
 are allowed, mutual consent, allegation of incom- 
 patibility of temper brought by one of the consorts, 
 and certain specific or determinate motives derived 
 from the condition or conduct of either of the mar- 
 ried parties. These last are derangement of reason, 
 condemnation by a tribunal to a painful or infa- 
 mous penalty, crimes, cruelties, or grave injuries 
 of either party toward the other, notorious licen- 
 tiousness of morals, desertion for at least two 
 years, absence for at least five without sending 
 news, and finally emigration from France in cer- 
 tain cases, which was naturally a transitory 
 measure. Separation of body, or divorce a mensa 
 et toro, was to be hereafter abolished, and separa- 
 tions 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 incom- 
 patibility or with mutual consent. "When the di- 
 vorce 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 obtain- 
 ing her divorce. 
 
 So far the new law went back to the loose Ro- 
 man 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 DIVOECE AND DIVORCE LAW IN EDEOPB 
 
 cil of at least six relations or friends was to 1 
 convened by the parties, half chosen by the huf*- 
 band, 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 them- 
 selves, 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 di- 
 vorce 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 REFORMATION. 153 
 
 disputed point. If the specific ground were any 
 other, as derangement, profligacy, desertion, injury 
 of the consort, the demandant had first to hring 
 his case hefore family arbitrators " in the form pre- 
 scribed 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 mensa et toro from legis- 
 lation. But the door was not yet wide enough 
 for a " wicked and adulterous generation." It 
 needed the additional clauses passed by the Na- 
 tional Convention on the 8th of Nivose, An 2 — 
 Sat., 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 sepa- 
 ration in fact of a married pair for six months 
 even though proved by common fame only, should 
 1* 
 
154: DIVORCE AND DIVORCE LA.W 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 ot 
 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 effect- 
 ed and authenticated before Sept. 20, 1792 [and 
 therefore with no law to authorize them], on the 
 ground that marriage is a civil contract, are con- 
 firmed 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 
 8, — Sunday, Aug. 2, 1795. The representative 
 Mailhe, who moved the suspension, remarked that 
 by these laws the hasty outbursts of passion be- 
 came irreparable, and took from their unhappy 
 victims the refuge even of reflection and repent- 
 ance. He then goes on to say that the law of 4th 
 Floreal, making separation in fact for six months 
 a ground of divorce, was forced on the legislative 
 
SINCE TIIE 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 seques- 
 trated if her husband was condemned before her 
 divorce.* "A decree of exemption might have 
 unmasked this new Appius. It was thought bet- 
 ter to propose a general law." "You know in 
 fact," says he, " that the decemviral oppression 
 weighed on the committees, and on the Conven- 
 tion generally. Into how many families have not 
 these laws [of 8 Nivose and 4 Floreal] brought 
 dissolution and despair. How much at this mo- 
 ment 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 im- 
 prisonment, 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 di- 
 vorce for some eleven years.f 
 
 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 " reimpres- 
 sion de l'aneien Moiiiteur," generally a few pages after the date of 
 their enactment. The remarks of Kailhe we have extracted from 
 the same journal. See Vol. 19, G9 ; 20, 297 ; 25, 403. 
 
156 DIVOECE AND DIVOECE 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 pro- 
 ject of a code had been sent to the superior courts 
 for examination, and then — their observations be- 
 ing placed in the hands of the Council of State — 
 the section on legislation within the council made 
 a new project, which, after discussion in the coun- 
 cil, 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 Na- 
 poleon, with very slight changes due to the impe- 
 rial system. The differences between this law and 
 that of Sept, 20, 1792, are chiefly these. The 
 system of family councils is abandoned. The for- 
 malities in cases of divorce by consent of both con- 
 sorts, 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, Tronchot, the 
 First Consul Bonaparte , and the Consul Cambaceres. 
 
SINCE THE BEFORMATION. 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 u de corps " 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 con- 
 tract. 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 so- 
 ciety, 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 con- 
 tinually manifest, replied that mutual consent 
 was a way of hiding shameful family secrets from 
 the public gaze. Tronchet reph'ed ihat the malig- 
 
158 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 incon- 
 venience," 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 pro- 
 posed that this kind of divorce should be inter- 
 dicted to consorts who had children, but the pro- 
 posal 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 com- 
 mon 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 punish- 
 ment (peine infamante). 5. " The mutual and per- 
 severing 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 insup- 
 portable to them, and that there exists in their case 
 a peremptory reason for divorce." 
 
 These grounds for divorce are divided into de- 
 terminate 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 re- 
 spects 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 mali- 
 cious 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 pro- 
 visory measures to which the suit for divorce for a 
 
160 DIVOECE AND DIVOECE 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 di- 
 vorce is based on outrages, etc. (JSTo. 3, above), the 
 judges are not permitted, although the case may 
 be clear, to decree the divorce directly. The wom- 
 an 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 sum- 
 moned, 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 wom- 
 an, in all causes where specific grounds for di- 
 
SINCE THE REFORMATION. 161 
 
 vorce are alleged, to quit her husband's domieil 
 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 mar- 
 riage.* 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 arrondissevnent 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 chap- 
 ter 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 ia enough. Code 
 Civ. §§ 145-150. 
 
162 DIVOBCE AND DIVORCE LAW IN ECEOPE 
 
 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 ascending line 
 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 proceed- 
 ings, at which times formal proof must be ad- 
 duced 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 pres- 
 ence 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 
 public" 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 mat- 
 ter to " the tribunal." If the tribunal is of opinion 
 
SINCE THE EEFOEMATION. 163 
 
 that the parties have satisfied the law, it shall al- 
 low 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 tribu- 
 nal, 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, ten 
 months must elapse before the woman can con- 
 tract 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 Rhei- 
 nisehe 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 seven- 
 teen 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, how- 
 ever, 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 DrVOEOE AND DIVORCE LAW IN EUROPE 
 
 many 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 off- 
 spring of their marriage in full right — they them- 
 selves having the enjoyment of the property dur- 
 ing the minority of the children, subject, however, 
 to the proper charges for the children's main- 
 tenance and education. In all other kinds of di- 
 vorce, 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 consumma- 
 tion ; while, on the other hand, the party who has 
 obtained the divorce (the innocent party) shall con- 
 tinue 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 innocent' 
 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 wrps" or a mensa et toro. This 
 
SINCE THE REFOKMATION. 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 termi- 
 nate the effect of this penalty by consenting to 
 take her back again before it has expired. A sep- 
 aration for any other cause except a wife's adul- 
 tery, after it has lasted three years, may be con- 
 verted into divorce by a court on the demand of 
 the party who was originally the defendant, pro- 
 vided 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 contem- 
 plates, 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 alimit 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 per- 
 son. 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 DIV0KCE AND DIVOBCE LAW IN EUKOPE 
 
 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 his bitterness 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 af- 
 ter 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 M. Tronchet, 
 that this prohibition would have a dangerous influ- 
 ence 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 alto- 
 gether. Of this important change the excellent 
 historian of the restoration, Louis de Viel-Castel, 
 thus speaks (Hist, de la Eestauration, iv., 486.) : 
 
 " The only proposition which did not meet with 
 
SINCE THE KEFOEMATIOJST. 167 
 
 serious opposition was that which had for its aim 
 the abolition of divorce. On this point the As- 
 sembly was unanimous, and it represented, if not 
 the unanimity, at least the general sentiment of 
 France. M. Trinquelague, the organ of the com- 
 mittee to which the examination of the question 
 had been referred, developed, in a carefully writ- 
 ten report ideas similar to those set forth by M. 
 Bonald. He showed that the proposition made 
 no attack on the religious liberty of the Protest- 
 ants, 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 indissolu- 
 bility 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 mem- 
 ber, although he adhered to its principle and 
 made no formal amendment, asked whether di- 
 vorce 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 Cham- 
 ber of Deputies was two hundred and twenty-five 
 
168 DIVORCE AND DIVOKOE 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. Yon Ro- 
 chau 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 opposi- 
 tion. The first of these propositions aimed at the 
 reintroduction of divorce, which, under the Restor- 
 ation, 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 mar- 
 riage, or rather a bald lie." We are not aware 
 of any new attempt to alter the law since the dis- 
 cussions 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 cog- 
 nizance of marriage and its dissolution. No 
 separations except a mensa et tow were known. 
 
SINCE 1HB REFORMATION. 169 
 
 The same rules in regard to annulment of mar- 
 riage prevailed, which are still in force in the 
 Catholic countries. The rupture of Henry VIII. 
 ■with Rome, and the subsequent progress of the Ref- 
 ormation, made no change in the law of marriage 
 and in the courts to which its execution was con- 
 fided. Catharine of Aragon was set aside by sen- 
 tence 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 Catha- 
 rine 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 DIVOECE AND DIVOKCE LAW IN EUROPE 
 
 second marriage after the decision of the ecclesi- 
 astical 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 is- 
 sued to Cranmer and others to inquire into the con- 
 formity of such a step with the Scriptures. Cran- 
 mer, 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 eoclesiasticarum, drawn up prin- 
 cipally 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 re- 
 sort 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 remar- 
 riage on account of incompatibility of temper (iv., chap, v., p. 284) . 
 Hallam (Const. IJist., i., p. 140) affirms that Lingard turns capi- 
 tals inimicilice 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 clergy- 
 man guilty of this crime was to lose his benefice and his estate. 
 
SINCE THE REFORMATION. 171 
 
 the laws both then and afterward. Meanwhile, 
 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 upion 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 remar- 
 riage. 
 
 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 ec- 
 clesiastical 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 hus- 
 band or wife was living, a felony, and yet a pro- 
 vision 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 ec- 
 clesiastical court. At the same time several can- 
 ons touching this matter were enacted by royal 
 authority, one of which provided that no persons 
 separated a toro et onensa should, during their 
 joint lives, contract matrimony with other per- 
 sons, and that the, parties requiring the sentence 
 
 Hallam thinks that it was laid aside because public feeling was 
 against it. 
 
172 DITOECE AND DIVOKCE LAW IN ETJB0PE 
 
 of divorce should give sufficient caution and se- 
 curity into the court that they would not trans- 
 gress this restraint. Another canon required the 
 judge who should grant divorce, without observ- 
 ing these rules, to be suspended for one year by 
 the archbishop or bishop, and declared his sen- 
 tence utterly void.* 
 
 A very remarkable case of remarriage, in defi- 
 ance 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 law- 
 ful wife of Lord Rich. Then, by an amicable ar- 
 rangement between the parties, an ecclesiastical 
 court separated her from her husband, and 6he 
 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, f 
 
 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 
 
 die case. The Duke of Norfolk, without any such 
 prejudgment in Doctors' Commons, was, in 1700, 
 by act of Parliament, after evidence had been sub- 
 mitted, 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 ec- 
 clesiastical court, which, in a process of jactitation 
 
 * Vol. xiii., pp. 1332-1338, -where the proceedings in the Duko 
 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 giv- 
 ing Li :nself 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 juris- 
 diction in cases of divorce was changed. The law 
 is quoted as 20 and 21 Yict., 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 re- 
 gard 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 
 Boss got such an act, before he obtained the other dissolving hia 
 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 ap- 
 plications for new trials of questions or issues be- 
 fore a jury. This court is to be called the court 
 for divorce and matrimonial causes. 
 
 2. A sentence of judicial separation, supersed- 
 ing 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 prin- 
 ciples, which are to conform to those of the ecclesi- 
 astical courts ; to the alimony of the wife, and her 
 status during separation ; to the reversal of a sen- 
 tence 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 " incestu- 
 ous 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 adul- 
 tery 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 inno- 
 cent 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 con- 
 nivance at the crime on the part of the petitioner, 
 and no collusion with a respondent, shall decree a 
 dissolution of the marriage. Bnt 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 Ordi- 
 nary to a full court, and from such court to the 
 House of Lords, each within three months, unless 
 the recess of the honse 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 follow- 
 ing : The old action of a husband for criminal 
 conversation is declared to be no longer maintain- 
 able, 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 chil- 
 dren 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 dis- 
 cretion, may settle such property or any part of it 
 on the innocent party or on the children of tbe 
 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 circum- 
 stances on the part of the husband. In cases of 
 
 8* 
 
178 DIV0KCE LAW SINCE THE REFORMATION. 
 
 separation it allows the possibility of renewed co- 
 habitation by mutual agreement, although of this 
 nothing, we believe, is said. In cases of dissolution 
 of marriage it allows both parties to many 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 
 guilt}' wife's property on her husband or children, 
 it approaches a principle of the Roman law con- 
 cerning dower. But it falls below the Roman law 
 in making adultery no civil crime, but only a pri- 
 vate injury. It respects the consciences of clergy- 
 men in not requiring them to solemnize marriages 
 regarded by them as unlawful. On the whole, 
 with serious defects, it seems to us to he an excel- 
 lent law ; it does honor to the Christian country 
 where it is in force, and it is certainly a great im- 
 provement on the former mode of regulating di- 
 vorce 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 ! 
 
DIVOECE LAWS IN THE UNITED STATES. 179 
 
 CHAPTEE 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 grant- 
 ed, 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 legisla- 
 tion, 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 DIVOEOE 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 pub- 
 lished 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 unsat- 
 isfactory. 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 UinrED 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 read- 
 er. But it is observable," he continues, " that the 
 statutory law of this country, relating to this sub- 
 ject, 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 consid- 
 ered by them in framing the statutes ; and who, 
 moreover, gave but little thought to the matter of 
 the practical working of the statutes. The inter- 
 pretations 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. 107, § 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 accord- 
 ing to common law an impediment at the com- 
 mencement 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 DITOKCE LAWS 
 
 ling and causes dissolving marriage ; and the same 
 is true of the laws of many of the other States 
 which speak of impoteney barely, while other laws 
 are careful to define it as existing before mar- 
 riage. How could such a provision be interpret- 
 ed without a knowledge of common law? For 
 under some codes impotentia swperveniens may 
 dissolve marriage, and more frequently a pre- 
 vious 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. The Puritans brought 
 English law with them, but separated from it in 
 the matter of divorce, by, following, as they sup- 
 posed, the rules of the New Testament. Adultery 
 and desertion were thus the only causes of divorce, 
 and from this beginning their legislation, follow- 
 ing the analogy between desertion and certain 
 other kindred offenses, degenerated until it lost 
 sight of the New Testament entirely. Other col- 
 onies adhered more nearly to English law, or, as 
 Maryland, may have been influenced by the 
 Roman Catholic doctrine of marriage and so con- 
 fined 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 ac- 
 cordance 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 two- 
 thirds of each branch of the legislature after trial 
 and verdict of a superior court, or a court of chan- 
 cery. But later constitutions have, in all these 
 States, rendered such actions of the law-making 
 body unnecessary, if not forbidden its exercise al- 
 together. He 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 pro- 
 hibited by the constitutions of at least twenty- 
 three 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 common- 
 wealth are, or may be hereafter, empowered to 
 grant divorce;" and while we write there is a 
 petition before the General Assembly of Connecti- 
 cut, to dissolve marriage in a case not included 
 within the general statute. Such acts have occu- 
 pied the ground as well of sentences of nullity as 
 
 *5Tew 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 di- 
 vorce 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 con- 
 tended 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-maker 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 con-' 
 fusion 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 in- 
 clude no collateral matter, such as a direction for the payment 
 of alimony. 
 
186 DIVOECE AND DIVOKCE 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 ago start from a 
 standing point which was not English. Some in- 
 fluence 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 Ger- 
 many. 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 twenty- 
 three 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 sen- 
 tence of infamous punishment is the ground for 
 the petition to the court. In some States separa- 
 tion 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 Ehode Island and Ken- 
 tucky, it can be granted for any crime which is a 
 cause of divorce a vinculo, if the parties desire it 
 and the court think fit, and for other causes ac- 
 cording to the court's discretion. It may also be 
 followed in some States by divorce a vinculo, 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 one- 
 fourteenth 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 de facto, with- 
 out 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 re- 
 gard to divorce in general, beginning with those 
 States which have kept closest to the English 
 
 * See Bishop, Book V., Chap. 30 and 31. 
 
188 DWOECE AND DITOECE 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 atti- 
 tude 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 some- 
 thing 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, show- 
 ing 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 char- 
 acters unfortunate in their marriages, and virtu- 
 ous women abandoned or driven away houseless 
 by their husbands, who would be doomed to 
 celibacy and solitude, if they did not form con- 
 nections 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 mar- 
 riage 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, 
 ibeen 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 DIVOKCE AND DIVOECE 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 rev 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 legis- 
 lation. 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 dissolv- 
 ing the marriage tie has continued with very lit- 
 tle alteration until the present time. Meanwhile 
 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 fea- 
 tures. 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 pro- 
 cedure 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 impor- 
 tant 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 ap- 
 pear 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 mar- 
 ried within the State, it must appear that the com- 
 plainant was domiciled in the State at the time 
 of the offense and of bringing the suit. Other par- 
 ticulars, such as the actions of the complainant 
 which may be a bar in the way of the petition be- 
 ing granted, and the effect of the divorce on dower 
 
 * He died in 1847, shortly after the Court of Chancery, as dis- 
 tinct from tho common law courts, ceasod, according to the con- 
 stitution of 184S, to have existence. 
 
192 DIV0BCE AND DIVORCE LAWS 
 
 and on the husband's right in his wife's estate, re- 
 appear 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, con- 
 duct rendering it unsafe for her to live with the 
 husband, desertion, willful desertion and refusal 
 to make provision for her support. The com- 
 plaints 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 per- 
 petual or for a time, and may be revoked by the 
 court on joint application of the parties upon evi- 
 dence 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., § 1 61. 
 
IN THE UNITED STATES. 193 
 
 clares 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 in- 
 tended at its origin to endure until the death of 
 the contracting parties, it seems a little inconsist- 
 ent with itself, for whence can this indissolubility 
 be derived but from moral and religious consider- 
 ations. If the law will regard nothing to be mar- 
 riage 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 oifense, excepting two, 
 this separation must precede divorce proper by a 
 certain length of time. These two causes of im- 
 mediate divorce are adultery and sentence of in- 
 famous 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 with- 
 out reconciliation of the parties, before divorce can 
 be granted. The remaining causes of separation 
 mentioned in the code are cruel conduct, mak- 
 ing life insupportable, abandonment, defamation, 
 and attempt of either party on the life of the other. 
 
 9 
 
194 DIVORCE AND DIVORCE LAWS 
 
 A statute of 1827 ordains that no divorce shall 
 be granted except for adultery, infamouB punish- 
 ment, 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 be- 
 fore application for the divorce. Are we then to 
 understand that defamation and attempt on life 
 can separate for a time, but not dissolve the mar- 
 riage 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 re- 
 moving difficulties, which arise between partners 
 in marriage, in a way which is revolting to the 
 mass of Christian people. Add to this, to a consider- 
 able 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 down- 
 ward 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 Eeformed 
 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 un- 
 known without being heard of, which, in a law 
 of the Massachusetts colony passed in the 5th of 
 William and Mary, is modified 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 DIYOKCE 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 tradi- 
 tions, 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 inexperien- 
 ced hands, set about removing palpable evils with- 
 out 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 de- 
 sertion 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 pleas- 
 ure 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 Eoman lawyers called the 
 individua vitce consuetude 
 
 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 author- 
 ize 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 inter- 
 course 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 
 
iyS DIVORCE 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, — ' ' absence without good cause, " " aban- 
 donment and desertion." The sense in all the 
 forms and expression is no doubt the same. Ab- 
 sence 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 indi- 
 cated in the statutes. In Indiana it is " one year, 
 or less,"* if the court is satisfied that reconcilia- 
 tion is improbable, and in Missouri 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, Con- 
 necticut, Maryland, Georgia, Mississippi), while 
 
 * But by an act of 1859, " or less" and what follows is strickpn 
 out. 
 
IN THE UNITED STATES. 109 
 
 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 ac- 
 cording 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 vinculo, and in one or two the one or 
 the other according to the aggravation of the 
 offense as estimated by the court. la Massachu- 
 setts desertion for five consecutive years may fur- 
 nish 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 
 fide but to have proceeded from an intention to 
 defeat the divorce. The wife, leaving the hus- 
 band 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 hus- 
 bands are in the service of the United States, or have been 
 voluntarily within the lines of the enemy, giving them aid and 
 
200 DITOKCE AND DIVOECE LAWS 
 
 3. Imprisonment for crime is absence or forced 
 separation, caused by the guilt of one of the par- 
 ties, and preventing the fulfillment 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 Mas- 
 sachusetts 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. 
 Yermont 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 Hamp- 
 shire, Massachusetts, and Kentucky; joining a 
 religious society which holds marriage to be un- 
 lawful — 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 di- 
 vorce. 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 diyorce in 
 Prench law, in Chapter IV. 
 
IN THE UNITED STATES. 201 
 
 The law of this State prescribes that the member- 
 ship 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 hus- 
 band 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 (Ken- 
 tucky), 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 intox- 
 ication, which are a cause of divorce or more fre- 
 quently of separation in many of the codes. Some- 
 times this is described as habitual drunkenness 
 (New Hampshire and other States), sometimes as 
 gross and confirmed habits of drunkenness (Massa- 
 
 9 * 
 
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 spend thrift 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 (Yermont), 
 extreme cruelty (New Hampshire, Maine, and 
 other States), cruel and abusive treatment (Massa- 
 chusetts), intolerable cruelty (Connecticut), cruelty 
 and conduct rendering cohabitation unsafe for the 
 wife (New York) ; as cruelties endangering life, 
 and indignities making life burdensome (Penn- 
 sylvania), which the laws of North Carolina and 
 Tennessee substantially repeat, the first adding to 
 it turning the wife out of doors, the other, ejec- 
 tion. 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, indigni- 
 ties, and ejection are causes of separation. In 
 Kentucky, the cruelty, or gross cruelty, is mea- 
 sured 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 in- 
 definite, 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 con- 
 duct 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 rela- 
 tions of married persons, some of the codes, intro- 
 duce 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 oc- 
 curring after marriage, and as they are illogically 
 brought together with divorces proper, we may 
 pass them by. We may, however, notice those 
 
204 DIVOKCE AND DITOECB LAWS 
 
 laws which prohibit marriage between a white 
 and a black person, or between a freeman and a 
 slave, as either now of questionable constitution- 
 ality, 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 
 Lad 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 mar- 
 ried in this State, or cohabited here after mar- 
 riage." In North Carolina, the statute, after 
 providing for certain special cases, adds, that if 
 " any other just cause of divorce exists," the in- 
 jured party may obtain divorce a vinculo 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 bona 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 he granted. But the 
 action of the Circuit Court can be revised hy 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 re- 
 quires 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 mis- 
 conduct 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 
 Court 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 DIVOECE LAWS 
 
 discretionary power. Besides the causes for di- 
 vorce arising after marriage, which are five — 
 adultery, 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 commoirlaw cases omitted in the 
 enumeration of the statute, viz. : precontract, and 
 i elation by blood or by marriage. Applications 
 on these grounds are rarely made.* 
 
 A number of laws determine the time of resi- 
 dence 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 con- 
 cerned. Both these points are of extreme import- 
 ance, as emigration is so easy, and temporary resi- 
 dence in another State may be used for the pur- 
 pose 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 giyen 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 no forum 
 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 commen- 
 taries. 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 the 
 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 parte 
 suits, where the defendant is ignorant of the pro- 
 ceedings, 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 in- 
 fluence 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 be- 
 half 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 con- 
 duct of the petitioner furnishes a good reason for 
 the denial of his petition. Such conduct is — es- 
 pecially 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 THE UNITED STATICS. 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 conse- 
 quences, if any, which may follow the offense of 
 the guilty party. Here, first of all, the way in 
 which the different States view the 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 the misdemeanors 
 mentioned in the statutes of Kentucky, of Ten- 
 nessee, 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 
 pai'ties 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 matri- 
 monial 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 hus- 
 band 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. 
 
210 DIYOKCE ANT) DIVORCE LAWS 
 
 and Connecticut. In a few States a repetition of 
 t3ie offense increases the penalty. Alabama im- 
 poses 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 transgres- 
 sion 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 dol- 
 lars, 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 con- 
 trary 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 
 
 1 673 required the same brand to he 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 long 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 per- 
 son 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 Penn- 
 sylvania, a law of 1705 exposed such persons to twen- 
 ty-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' im- 
 prisonment 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 DIVOBCE AND DIVOKCE LAWS 
 
 months' imprisonment being now the penalties. 
 In 1705 the statute omits imprisonment, but re- 
 tains 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 pen- 
 alty. It were well if these penalties were not 
 almost obsolete. In the reports of the Commis- 
 sioner 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 im- 
 pression is both that there is no pectdiar slackness 
 
 * A gentleman writes from a State where the penalty for adul- 
 tery is a fine not exceeding one thousand dollars, or imprisonment 
 not exceeding twelve months, as follows. " This offense is some- 
 times, but not often, punished by a nominal fine, and in case of 
 negroes, I have known imprisonment added." 
 
EST THE UNITED STATES. 213 
 
 in executing the laws in that State, and that every- 
 where public opinion does not demand 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 adul- 
 tery, 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 hus- 
 bands than the law has caught with its very gentle 
 hooks. So it must ever be. Eude justice, violent, 
 lawless, excessive retribution fills a vacuum from 
 which the justice of society has leaked out. Let 
 society forbear to punish homicide, and blood - 
 revenge becomes an institution. Let it forbear to 
 punish adultery, and the aggrieved kill the offend- 
 ers, 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, rre 
 punished by society. 
 
214 DIVOECE AND DrVORCE LAWS 
 
 There are disadvantages in respect to property, 
 to which, especially when adultery is the ground of 
 divorce, the guilty party or parties, against 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 Massachusetts, Rhode Island, and Michigan.* 
 The law of Tennessee prescribes that the husband's 
 rights, if he is the complainant, to his wife's prop- 
 erty shall be the same as if marriage had con- 
 tinued. 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 per- 
 sonal. 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 ex- 
 ceedingly. 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 parta- 
 ker 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 lib- 
 erty 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 ©f 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 offend- 
 ing 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 DIVOECE AND DIVOECE LAWS 
 
 Such a regulation we find in the laws of New York, 
 North Carolina, Georgia, and Massachusetts; in 
 which latter State such marriage, when unauthor- 
 ized, 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, follow- 
 ing 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 mar- 
 riage 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, Ehode 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 per- 
 ceive that the number of causes for which divorce 
 may be obtained has been very considerably in- 
 creased in modern times. There is an increasing 
 
 * It is quite possible that errors may have crept into the sketch- 
 es 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 shall 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 so- 
 ciety ? — 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 news- 
 papers 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 increasing? 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 1 Is there any difference be- 
 tween the different States in the number of suc- 
 cessful petitions for this privilege ? 
 
 "We propose to occupy the remainder of this Chap- 
 ter with an exposition of the statistics of divorce 
 as far as the tables prepared in several of the States 
 10 
 
218 DIVOKCE AND DIVOEUE 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 sta- 
 tistics. Massachusetts has published one list of di- 
 vorces 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 publish- 
 ed with regularity. In Ohio the eminent commis- 
 sioner of statistics, who has recently been displaced 
 Mr. Edward D. Mansfield, has prepared very use- 
 ful tables. But in most of the 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 our inad- 
 equate 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 ascer- 
 taining how far this commonwealth differed, in 
 one important department of morals, and in re- 
 spect to one indication of social advance or de- 
 cline, from its sister States. We were desirous, 
 also, of finding out, if we could, whether there 
 was any movement of divorce toward increase 
 
IK THE 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 Englauder, enti- 
 tled " Divorce Legislation in Connecticut," pub- 
 lished in July, 1866* 
 
 At the risk of repeating what was there said 
 we must remind our readers that to the two or igi- 
 n al causes of divorce — adultery and desertion — 
 there were added two others in .1843, "habitual 
 intem perance and intolerable cruelty," and that m 
 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 par- 
 ty as permanently destroys the happiness of the 
 petitioner and defeats the purposes of the mar- 
 riage 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 addi- 
 tion of less than one-half, of which one-half Cath- 
 olics, 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 DIVOBCE LAWS 
 
 both directly and by its influence when other 
 causes were weak, aided the petitioners for di- 
 vorces not a little. Add to all this that after di- 
 vorces are granted there is an unlimited license 
 of remarriage, and that there is little fear of pros- 
 ecutions 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 to- 
 gether in a union which they aimed, perhaps, to 
 make possible by their crime. Herod and Hero- 
 dias 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. How, then do statistics 
 show that we stand ? 
 
 The statistics we shall present under the heads 
 of the ratio of annual divorces to annual mar- 
 riages, 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 Yermont the ratio of annual divorces to an- 
 nual marriages stands thus : 
 
 * A member of the committee raised to consider the subject 
 of divorces in 18GY stated that he knew a couple in a town near 
 his own who were divorced and married again a fortnight after- 
 ward, and obtained a second divorce on similar grounds with the 
 first in a very short time. 
 
IN THE UNITED STATES. 
 
 221 
 
 Tears. 
 1860, 
 1861, 
 1862, 
 1863, 
 1864, 
 1865, 
 1866, 
 
 Divorces. Marriages. 
 
 Eatio. 
 
 Total, 
 
 94 
 
 2,179 
 
 1 to 23.2 
 
 65 
 
 2,188 
 
 u 
 
 33.7 
 
 94 
 
 1,962 
 
 a 
 
 21 
 
 102 
 
 2,007 
 
 a 
 
 20 
 
 98 
 
 1,804 
 
 a 
 
 18 
 
 122 
 
 2,569 
 
 a 
 
 21 
 
 155 
 
 3,001 
 15,710 
 
 tt 
 
 19 
 
 730 
 
 a 
 
 21.5 
 
 In Massachusetts, 
 
 
 
 Tears. 
 
 
 Divorces. 
 
 Marriages. 
 
 Eatioa. 
 
 1861, 
 
 
 243 
 
 10,972 
 
 1 to 45 
 
 1862, 
 
 
 227 
 
 11,014 
 
 " 48.4 
 
 1863, 
 
 
 239 
 
 10,873 
 
 " 45.5 
 
 1864, 
 
 Total, 
 
 313 
 
 1,022 
 
 12,513 
 
 " 40 
 
 
 45,372 
 
 " 44.4 
 
 In Ohio (the years begin in July of the year 
 named). 
 
 Tears. 
 
 Divorces. 
 
 Marriages. 
 
 Eatios. 
 
 1865, 
 
 837 
 
 22,198 
 
 1 to 26 
 
 1866, 
 
 1,169 
 
 30,479 
 
 " 26 
 
 1867, 
 
 975 
 
 
 
222 DIVOECE AND DIVORCE LAWS 
 
 In Connecticut. 
 
 
 
 
 
 Tears. 
 
 Divorcee. 
 
 Marriages. 
 
 ■Ratios. 
 
 1860, 
 
 310 
 
 3,978 
 
 1 to 
 
 12.83 
 
 1861, 
 
 275 
 
 3,757 
 
 a 
 
 13.70 
 
 1863, 
 
 257 
 
 3,701 
 
 a 
 
 14.44 
 
 1S63, 
 
 291 
 
 3,467 
 
 u 
 
 11.90 
 
 1864, 
 
 426 
 
 4,107 
 
 a 
 
 9.64 
 
 1865, 
 
 404 
 
 4,460 
 
 a 
 
 11.04 
 
 1866, 
 
 488 
 
 4,978 
 
 a 
 
 10.19 
 
 1867, 
 
 459 
 2,910 
 
 4,779 
 
 u 
 
 10.40 
 
 Total, 
 
 33,227 
 
 u 
 
 11.40 : 
 
 From Prussia we have some materials for insti- 
 tuting a comparison between that country of no- 
 toriously loose divorce laws and the States named 
 above. "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 under- 
 stand, from the records in the several counties. 
 
 Years. 
 
 Divorces. 
 
 
 Years. 
 
 Divorces. 
 
 1849 
 
 91 
 
 
 1855 
 
 208 
 
 1850 
 
 129 
 
 
 1856 
 
 215 
 
 1851 
 
 1G5 
 
 
 1857 
 
 232 
 
 18E2 
 
 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 Connec- 
 ticut, 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 two- 
 thirds, say 800, were Catholics, who rarely peti- 
 tion 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, 
 84,914 ; 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 four- 
 fold that in Massachusetts, 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 twoand 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 DIVOBCE AND DIVORCE LAWS 
 
 balance this, the marriages, as always happens in 
 similar cases after a war, have increased quite per- 
 ceptibly, 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, pertain- 
 ing to 1838-1840. 
 
 Judicial districtof Berlin, 67 divorces to 100,000 inhabitants. 
 
 " Frankfort, 30 " " " 
 
 " " Magdeburg, 35 " " " 
 
 " " Konigsberg, 34 •' " " 
 
 " " Stettin, 36, " " " 
 
 Greifswald, 16 " " " 
 
 In the Rhine provinces, among 600,000 Prot- 
 estants, 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 legis- 
 lation 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 iu some of the United States must be based 
 in part on estimates. For Massachusetts, we fol- 
 low 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.f 
 
 * From Strippelmann's Ehescheidungsrecht, a valuable work 
 written by a lawyer at Caasel in Hesse, and published in 1854. 
 Our authority for the other German statistics is Viebahn's Statis- 
 tik, 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 Li- 
 brarian'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 kind- 
 ly furnished by Henry Clark, Esq., of Rutland, Clerk of the Sen- 
 ate of that State. Rev. W. W. Andrews and others havo ren- 
 dered us important assistance. 
 
 ■)■ 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 popula- 
 10* 
 
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 " " 
 
 In Ohio, in 1865, there were 33J- 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 
 Yiebahn says, to the more " earnest treatment" 
 of divorces on the part of the civil and church 
 authorities. The table gives the number of di- 
 vorces 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 1861. This would give about 85.5 to 100,000, in- 
 stead of 87.5 for 1S61, 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 " " 
 
 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 ISTew England States in 
 general. Then we should have to deduct those 
 families at the head of which there is not a mar- 
 ried 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 DIVOECE AND DIVOECE 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 mar- 
 riages. 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 mar- 
 riageable 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. Twenty- 
 six 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 oc- 
 curred 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, two- 
 thirds 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. Dwiglit, 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 twenty- 
 six 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 488 
 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 infor- 
 mation we annex. In Vermont, out of 571 di- 
 vorces 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 misceh 
 laneous. 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 Mr. 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 unreli- 
 able," 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, help- 
 ing out other grounds where they are weak, and 
 having a baleful because a most indefinite and 
 capricious influence of its own. 
 
 In Yermont, 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, ex- 
 cept that in Ohio, in 1867, 1,441 petitions canue 
 before the courts, of which 975 were granted, 245 
 dismissed, and 220 not disposed of at the close of 
 the statistical year. 
 
232 DITOEOE 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 consider- 
 able part of the population fell below their ratio, 
 while the " Western Eeserve counties have a much 
 larger proportion of divorces than the rest of the 
 State." These counties constitute "New Con- 
 necticut," the settlers of which came from the old 
 State. The fact is significant. 
 
 Has it not, we ask in closing, been made to ap- 
 pear that the laws of divorce in this country de- 
 mand 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 Protest- 
 ants and Catholics, called upon to unite in a de- 
 
 * In 186 1 ? a committee of the legislature of Connecticut report- 
 ed 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 parte, the testimony of two credible witnesses resid- 
 ing 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 tho 
 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. 
 
m THE UNITED STATES. 233 
 
 mand that there be some cheek on so great and 
 threatening an evil as that which we have Bpoken 
 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 chap- 
 ter. 
 
234 DUTY OF THE CHURCH AS TO DIVORCE, 
 
 CHAPTEK VI. 
 
 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 trae princi- 
 ples 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, as a divine institution estab- 
 lished both in our nature and by positive precept, 
 and as involving the welfare of mutually depend- 
 ent beings, has and must have important rela- 
 tions 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. 'J..J5 
 
 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 obli- 
 gations 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 con- 
 tracting parties. And so, as contract is one of 
 
236 DUTY OF THE CHTJECH 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 theol- 
 ogy, 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 contem- 
 plates 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 Apos- 
 tles laid down, and as the state, in all its free 
 varying forms, presupposes the recognition of jus- 
 tice 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 Modestinns, 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 per- 
 petuity of the marriage union of one man and 
 one woman as essential to the nature of the insti- 
 tution. It runs as follows : Kuptise sunt conjunc- 
 tio maris et fceminee et consortium omnis vitas, 
 divini et humani juris communicatio.* 
 
 * Comp. Inst. Justin, 1-9, § 2. " Nuptise slve matrimonium 
 
PRINCIPLES OF DIVOBCE 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 funda- 
 mentally 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 con- 
 flict 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 legitimum. 
 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 ratum according to the 
 
 est viri et mulieris oonjunotio, individuam vitee consuetudinem 
 continens." In the decree of Gratian, part 2, Oaua. xxvii., 
 Quaest. ii., c. 3, we have the definition " consensus ergo cohabi- 
 tandi et individuam vitse consuetudinem retinendi interveniens eos 
 conjuges fecit. Individua vero vitae consuetudo est talem se in 
 omnibus ezhibere viro, qualis ipsa sibi est, et e converso." 
 
238 DUTY OF THE CHTJECH AS TO DIVOBCE. 
 
 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 re- 
 stored 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 Catho- 
 lic 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. Bichter Kirckenr., 6th ed., § 263. 
 
PRINCIPLES OF DIVOKCE 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 out- 
 ward 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 per- 
 sons 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 imper- 
 fect 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 in- 
 jurious, on the whole, to society. There is a differ- 
 ence 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 CHUKCH AS TO DIVORCE. 
 
 legal, and thus giving a bounty to immorality. 
 When the state imposes no penalty on drunken- 
 ness, 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 mo- 
 rality 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. 2Jrl 
 
 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 enno- 
 bling 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 "hard- 
 ness of hearts " on this side of Byram River to 
 account for this difference, or is it due to the un- 
 wariness and unskillfulness of legislators ? 
 11 
 
2-i2 DUTY OF THE CHURCH AS TO DIVOECE. 
 
 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 min- 
 ister, 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. Sup- 
 pose 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 com- 
 mitteth 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 joined 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 Suppar, 
 
PRINCIPLES OF DIVOECE LEGISLATION. 213 
 
 and thus any one who wished ought to have tree 
 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 com- 
 mon 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 adul- 
 terous, on the same ground. In the cas'e 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 CI1UECH AS TO DIVOEOE. 
 
 the law of Christ. This we say, is the most im- 
 portant 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 cele- 
 brated 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 con- 
 science ; 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 
 
PKHSTCIFLES OF DIVOBCE LEGISLATION. 24:5 
 
 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 ? 
 Has 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 at- 
 tempts 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 may be, whether 
 judged by Christ's law, or by Paul's rule, as gen- 
 erally 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 mat- 
 ter of state legislation, overlooking the religious 
 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 dis- 
 cipline 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. 247 
 
 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 sus- 
 tained 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 num- 
 ber to another body, because, in their opinion, he 
 had put away his wife unlawfully. As the Con- 
 gregational churches have always been compara- 
 tively 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 in- 
 sensible 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 CHURCH AS TO DIVORCE. 
 
 to the old usage in respect to the discipline of di- 
 vorce. We have had occasion to know that for 
 some time many of the ministers of the Congre- 
 gational 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 meet- 
 ing 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 inno- 
 cent 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 re- 
 marriage of divorced persons. The canon im- 
 
PRINCIPLES OF DIVOEOE 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 mat- 
 ter 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 di- 
 vorced for adultery after the death of the inno- 
 cent 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 nnion 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 thatofa 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 re- 
 union in the first instance, after condonation, yet 
 would never have thought of remarriage ; while 
 11* 
 
250 DUTY OF THE CHURCII AS TO DITOEOE. 
 
 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 in marriage by a 
 careless or unscrupulous minister of another de- 
 nomination, and then appear in their pew or at 
 the Lord's table. "What will the Episcopal minis- 
 ter do in their case % If they are not disciplined, 
 the canon becomes hrutum fulmen. But min- 
 isters 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 
 
• PKINCIPLES OF DIVORCE LEGISLATION. 251 
 
 clear one ; if the churches had not formally re- 
 affirmed 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 pos- 
 sible 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 indi- 
 viduals concerned, after the church or churches 
 shall have taken a position, can no longer plead 
 ignorance or the excuse of legality. Add to this 
 that there is no barrier against bad law, no ade- 
 quate 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 reach — 
 exclusion from its privileges. Let the law not 
 forbid polygamy, and let a man with four or with 
 
252 DUTY OF THE CHTJKCH A8 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 wife, 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 i3 violated, the church ought to interfere — 
 to 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 feel- 
 ing itself called, whatever be the law of the state, 
 to educate the people and protect its own princi- 
 ples by ecclesiastical censures. 
 
PRINCIPLES OF DIVOECE 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 re- 
 mains a class of cases which call for a separate con- 
 sideration. We refer to cases where the offense 
 against the Christian rule of marriage occurred 
 long since, where the parties in their irreligious- 
 ness 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 Csesar 
 both. But in the case supposed, where the sin 
 of the individuals concerned was one of thought- 
 lessness 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 hus- 
 band and wife, or the similar position of the ex- 
 treme abolitionist, who, because slavery originates 
 in wrong, would require all slave-holders, under 
 all circumstances, to make their slaves froe or be 
 
254: DUTY OF THE CIIUBCH AS TO DIVOKCE. 
 
 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 mar- 
 riage has a civil as well as a religious side,— -that 
 the state may even forbid the separation of per- 
 sons who ought never to have been united in mar- 
 riage 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 inti- 
 mate, 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 de- 
 grees, 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 OP 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 have conformed themselves 
 to the altered state of things. The same holds 
 good in the case which we have been considering. 
 Let the church, while it cannot be a party to any 
 
256 DUTY OF THE CHUKCH 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 prin- 
 ciples 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 anoth- 
 er, so as at least not to come into frequent conflict 
 by the efforts of the church to teach the true doc- 
 trine concerning marriage and divorce, and by its 
 healthy discipline over its members. There will 
 then remain those pariahs of society who lie out- 
 side 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 di- 
 vorced 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 ful- 
 fill 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 ac- 
 countable, 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 DIVOECE 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 aceount of 
 adultery and malicious desertion, or for the first 
 reason alone. In the present state of Christian 
 countries, however, this extent of reformation is al- 
 together 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 ex- 
 pected 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 Testa- 
 ment in their legislation touching rights and tho 
 common welfare, that you may as well separate 
 two parties who hate and injure one another rath- 
 er 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 
 
258 DUTY OF THE CHUECH 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 
 ns into this position, a conviction, impressed by the 
 history of divorce and divorce laws even in Chris- 
 tian 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 concu- 
 bine. M. Tronchet having said that this prohibi- 
 tion for the woman could have a dangerous influ- 
 ence 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 adul- 
 tery could never marry his or her accomplice. 
 (Art. 298.) We doubt the correctness of the con- 
 clusion 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 sufirage 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 won- 
 der 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 CHTJECH AS TO DIVOECE. 
 
 " wipetli her mouth " and takes the airs of an hon- 
 est 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 civil code. (Art. 298, 
 u. s.), "La femme adultere sera condamnee par 
 la meme jugement — a 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 pub- 
 lic officer, by the imprisonmentf of the woman. 
 
 So also in the projectof alawlof divorce-in which 
 Savigny had a part, it is providM.that in dgcr^es 
 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 evi- 
 dence against siich 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, Vennisoht. Schr. V., 3T8. 
 
PEINCIPLES 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, ex- 
 cept that it is justly regarded as a greater advance 
 in wickedness for women as a class to be unfaith- 
 ful 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 adul- 
 tery which appear, in the principle, in English law 
 and the French civil code. 
 
 3. In all cases of divorce, where the blame- 
 worthy 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 re- 
 quires 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 DIVOECE. 
 
 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 Ehenish 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 mu- 
 tual 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 dis- 
 solution 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 de- 
 part, let her remain unmarried or be reconciled to 
 her husband," — which refer, as we have given our 
 
PKINCIPLES OF DIVORCE LEGISLATION. 263 
 
 reasons for supposing, not to separation for the 
 cause of adultery but for minor faults. Being con- 
 sistent with the doctrine that marriage is indis- 
 soluble and is a sacrament of perpetual efficacy, it 
 gradually superseded divorce a vinculo which in- 
 volved 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 small- 
 er offenses against the law of marriage. The 
 feelings of the Catholics, trained up for centuries 
 by their theory of the sacraments, ought to be 
 respected in the legislation of a country where re- 
 ligions 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 men- 
 sa 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 separa- 
 tion de corps." The former was contained in the 
 projet before it was amended : "L' epoux qui aura le 
 droit de demanderle divorce pourra le borner a la 
 demande en separation de corps et des biens." 
 We should unite the two in this way : if the par- 
 ties can agree, the decree of the court may pro- 
 
26i DUTY OF THE CHUECH AS TO DIVOECE. 
 
 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 defen- 
 sible on religious grounds, and if it prevailed in 
 the law it would destroy the balance between the 
 civil and the religious weight of marriage, throw- 
 ing 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 ad- 
 mitted. 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 con- 
 tinent 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 for? 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 re- 
 lation and a winking at the grossest violations of 
 its sanctity ? Will not the parties be tempted Jo 
 thin k that to continue as they are, with the allow- 
 ance 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 difficul- 
 ties 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 de- 
 gree when it is applied as a temporary measure 
 for those less grievotis 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 CHTJKCH AS TO DIVOECE. 
 
 state of life intolerable ; desertion and crime, sub- 
 jecting to a long imprisonment, break np the 
 family state. Bat the violent man, the sot, the 
 vagabond, the criminal, may be reformed : and 
 what better school can 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 appli- 
 cation of either party. In the code civil, power 
 is given to the party who was originally the de- 
 fendant, in all cases excepting where the com- 
 plaint 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 DIVOEOE LEGISLATION. 267 
 
 shall sustain as little pecuniary loss or deficiency 
 in the means of support as possible, and the culpa- 
 ble 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 vari- 
 ous in the different codes, and the adequate treat- 
 ment 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 directiug 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 en- 
 dearments, 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 case 
 
268 DUTY OF THE CHUKCH AS TO DIVORCE. 
 
 of such a person's incompetence, to some third 
 person. 
 
 7. The law ought to be specific and for deter- 
 minate causes, and little discretion should he 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 inde- 
 terminate 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 often- 
 times into extreme perplexity, for the happiness 
 of the marriage relation is a very vague thing, 
 
PRINCIPLES OF DIVORCE LEGISLATION. 269 
 
 and 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 ob- 
 served 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 matri- 
 mony, for it amounts to not liking one another, 
 and the dislike is enhanced by the prospect offer- 
 ed 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 if 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 di- 
 vorce 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 re- 
 gard 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 Or THE CHURCH AS TO DIVOKCE. 
 
 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 ex- 
 isting 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 teel any great respect for American legisla- 
 tion. 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 lividg 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 in- 
 jured 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 adul- 
 teries 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-appear- 
 ance 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 abundanU an extract from a letter written by a 
 legal gentleman in Indiana. [The seventh clause, to which refer- 
 ence is made, runs thus : "Any other cause for which the court 
 shall deem it proper that a decree shall be granted."] It fre- 
 quently 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 Ave of the records 
 of divorces can the real ground of the divorce be obtained from 
 the paper with certainty." 
 
272 DUTY OF THE CHTJECH AS TO DIVORCE. 
 
 ings a state's attorney should ex officio be the guard- 
 ian of the interest of the absent defendant. The 
 laws of Indiana, -where there are many such eases, 
 strive to make their peace with justice and right- 
 eousness 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 th at when the suit is not expcvrte, 
 and when the proceedings issue in a jury trial, di- 
 vorce 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., 351. 
 
PRINCIPLES OF DIVOKCE LEGISLATION. 273 
 
 The code civil by its delays favored reconciliation, 
 and where divorce was desired by the joint con- 
 sent 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 rec- 
 onciliation 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 com- 
 plaint 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 commission- 
 ers, especially by the personal judge of the married 
 pair, with or without clergymen called into coun- 
 cil." 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 con- 
 ciliation shall be introduced into any of the United 
 States, they might be usefully employed on com- 
 plaint 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 * 
 
2Y4 DDTT OF THE CHURCH AS TO DIVOKCE. 
 
 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 wbat 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 wbo seek 
 to reform the laws in tbis 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 im- 
 mediately affecting the Christian Church, and as 
 affecting society outside of the company of pro- 
 fessed 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 partic3 unite in 
 desiring it, would assuredly awaken men of Chris- 
 tian 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 cor- 
 porate or united body, but an aggregate of per- 
 sons belonging to different, and often jealous de- 
 
rBINCIPLES OF DIVOKCE 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 Jew- 
 ish 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 tri- 
 fling 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. Tou 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 disci- 
 pline, 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 CHDECH AS TO DIVOECE. 
 
 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 morali- 
 ty, and when you will be looked upon as the ene- 
 mies of social progress." 
 
 Greatly to be desired then as is a reform in di- 
 vorce 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 ex- 
 isting 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 country 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 re- 
 ceive the crudest falsehood, and to reject the most 
 venerable truths. Religion appears to them a 
 
PEINCIPLES OE DITOECE LEGISLATION. 277 
 
 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 po- 
 litical 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 i3 to elevate or purify these 
 classes % They stand aloof from the ennobling in- 
 fluences 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 enter- 
 prise, 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, be- 
 tween low views of marriage and divorce and the 
 views contained in the ISTew 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 to 
 
278 DUTY OF THE CHUECH AS TO DTVOECB. 
 
 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 Jaws are es- 
 pecially 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 main- 
 ly, 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 mar- 
 riage 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. 
 
 Eut would not a strict divorce law defeat its 
 own end ? It certainly might, and that in two 
 ways : first, by creating opposition enough to ob- 
 tain an alteration of the law ; and then, in a cor- 
 rupt state of society, by tempting to sin within the 
 marriage relation, if a person cannot free himself 
 
 * See Note 6, Appendix. 
 
PEINOIPLBS OF DIVOECE 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 adul- 
 terer the advantage of marrying again, but not if 
 it took away the right from him or delayed the 
 exercise of it for a terra of years. And on the 
 other hand loose divorce laws do not prevent 
 adultery, as we have fully shown by the history of 
 Koman society under the emperors. 
 
 We entertain no fear then that a system of di- 
 vorce laws coming nigh — gradually, if it must be 
 so — to the severity of the ISTew 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 mar- 
 riage could not, if accepted, fail to purify society. 
 
APPENDIX. 
 
 NOTE 1 TO CHAPTER II. 
 
 Ore 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 
 yeyovvla 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 
 yeyovvla, 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," eruv yeyovuq 
 urj ekarrov fj ■KevrijjiovTa. 
 
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 Christiana 
 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 per- 
 son who can be called his wife) living. No one was to be allowed 
 to say, that widow had two husbands at once, ono a divorced, 
 and one an actual husband ; that elder has two wives, one dis- 
 missed and one living with him. But there is in our view a 
 serious objection to this interpretation. We fall back therefore 
 upon the second. The widow must be a univira, the elder or 
 deacon a monogamus, in the sense in which that word (like liga- 
 mus, 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 eldership, 
 but if he had not had any household, howcould his power of gov- 
 erning 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, imivira, 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 passa'ge, 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 Basilicae, says "Walter, u. s., § 315, repeat literally 
 the causes of divorce given in the novella of Justinian. "We 
 have no copy of this code in our hands, but have noticed in the 
 manual or Hoxabiblua of Harmenopulua, which has still authority 
 in Greece, that the title on divorce ia almost entirely borrowed 
 from the aource 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 Balsa- 
 mon 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 aaid, aince the parties arrange the 
 
 * Most recent interpreters and some of the Fathers explain these texts as 
 we have done. Mathies and Huther, 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 livcB, with no woman in sexual intercourse except with 
 his lawful wife. 
 
284 APPENDIX. 
 
 affair as seems to them best, others on a reasonable pretext (koto. 
 irpSfamv evloyov, 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 be- 
 tween divorce by common consent and divorce on account of fault 
 of one of the parties. It agrees with the first in this, that a cer- 
 tain sort of agreement of the parties is necessary, and with the oth- 
 er, that it is for determinate reasons. Its essential characters are 
 the following : 1. No libellus repudii, it is probable, was neces- 
 sary. 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. 1) ; 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 Constantino 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 prop- 
 erty was brought by him or her into the partnership — the hus- 
 band the antenuptial donation, the wife the dos. In the last 
 case the party remaining in the world was to have whatever, ac- 
 cording 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 novel 
 
 The divorce for a good reason contains the same causes of di- 
 vorce as the law of Theodosius II. referred to in the text, to 
 which this novell adds three others against the woman : procure- 
 ment 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 antenuptial- 
 donation 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, in fact dissolved them 
 injure, 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 confusionem. 
 
 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. Tet 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 sub- 
 ject 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 re- 
 sisted 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 men- 
 tioned it elsewhere — is furnished by a novell of Justin II. — 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 Basilica?. 
 
 NOTE 3 TO CHAPTER in. 
 Some Notices of Divorce Laws in the Middle Ages. 
 
 There are numerous proofs that the strict rule of the indissolu- 
 bility 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 di- 
 vorce 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 im- 
 potence, 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, Erbreoht, iv., 489 ff.) 
 
 In the laws of Aethelbirht of Kent (a. r. 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." (B. 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 rea- 
 sons 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 in- 
 troduced 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 so- 
 lidi 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 be- 
 tween 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 hus- 
 band, 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 after- 
 ward forbidden by King Chiudasuintha, and adultery now con- 
 stituted the only ground of divorce. See Gans, u. s., iii., 341-344 
 
 As we have seen that the church temporized among the Scan- 
 dinavians, so was it more or less elsewhere. Among the Anglo- 
 Saxons the Poenitentiale 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, Angel- 
 sachs., 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 thore 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, 
 and when one became leprous. Furthermore, the following rea- 
 sons, emanating from one of the parlies, justified divorce: adul- 
 tery, desertion of a wife, a husband's crime punished with ser- 
 vitude, 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. 731- 
 740) : " Si mulier infirmitate correpta non valuerit debitum viro 
 reddere — ille qui se nonpoterit eontinere nubat magis," etc. The 
 capitulum of the synod of Vermerie under Pippin, A. D. 752, per- 
 mitting divorce with marriage to a man, against whose life his 
 wife has conspired with others, we have spoken of before. An- 
 other article of the capitulary of the same assembly agrees with 
 the above-mentioned sentence of Gregory III. Five years after- 
 ward, in the meeting at Compiegne (Compendium), it was en- 
 acted (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 ecclesiasti- 
 cal law. "We have noticed a still later instance in the assises des 
 
 * Some of these statements Catholic writers seek to explain away.. 
 
APPENDIX. 289 
 
 hmergeois of the kingdom of Jerusalem (§ 155, p. 322, ed. Fou- 
 cher) : " 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 bouehe 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 mis- 
 fortunes befall the husband. Then follows a rule for the paying 
 over of her doweT 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 con- 
 sider 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 adul- 
 tery. We must refer for that subject to Wilda's Strafrecht d. 
 Germanen, pp. 821-829. 
 
 NOTK 4 TO CHAPTER IT. 
 Foljambc'z 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 mis- 
 takes 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, 131. And 
 again, in § 705, he reaffirms the same thing, but without proof, 
 Saying only that the fact is now generally admitted. 
 13 
 
290 APPENDIX. 
 
 That sentences of nullity in ecclesiastical courts dissolved^mar- 
 riage, 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 eccleaiastical-r- 
 the case was altered. 
 
 The note in Salkeld's. Reports, which has misled the, author of 
 the article on divorce in the Penny Cyclopaedia and a number, of 
 others, including Mr. Bishop, is as follows; "A divorce for adul- 
 tery was anciently a vinculo matrimonii, 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 EJiz., 
 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 est 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. Fpljambe is thus stated. We translate from the law French. 
 " Feb. 13, anno ii Eliz. In the Star Chamber it was declared by 
 all the court, that whereas (7) Fnljambe 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 life; 
 time, this was a void marriage, was only a mensd et thpro, 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 Ban- 
 croft, 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 ex- 
 planation 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 hud 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 Eye, on the claim 
 that not Bye 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 ex- 
 cited. On this alone, says. Mr. Craik, could the court give judg- 
 ment, but "it is likelyenough 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 factSf 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 pradentum 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. 
 
 Extract from Bev. R. Loomis 1 article on Divorce Legislation in Con- 
 necticut. New Englander for July, 18G6. 
 DukixO a period of fifteen years nearly 4,000 divorces have 
 been granted ; a number equal to one-twentieth of all the fami- 
 lies 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 can- 
 not, from 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 di- 
 vorce 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 ex- 
 pressly for general misconduct alone. It is, indeed, exceedingly 
 curious to notice the effect which this so-called general miscon- 
 duct clause has had upon the construction of the entire enact- 
 ment, of which it forms apparently so subordinate a part. It is 
 noticed sometimes in musical instruments that an attachment di- 
 rectly connected with but a poriion 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 instru- 
 ment throughout its entire range. Something analogous to this 
 
APPENDIX. 293 
 
 would seem to hare 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 extend- 
 ing 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 commit- 
 tee, from which are drawn almost all the facts quoted in this ar- 
 ticle 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 miscon- 
 duct clause. 
 
 In a vast number of cases, in which the evidence in reference 
 to the particular offense alleged in the suit must have been re- 
 jected 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 in- 
 fluence of this clause has been far greater than any it could in- 
 dependently have secured ; and where upon this issue alone a de- 
 cree could hot 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 oyer 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 dan- 
 gerous 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 IB a notorious fact that, 
 ordinarily, no sufficient measures are complied with to secure no- 
 tice 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 discre- 
 tion of the officer who issues it, and practically the duty is ful- 
 filled, as shown in the evidence before the committee, by the dis- 
 charge 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 eonsid" 
 ered discourteous or otherwise, to the lawyer prosecuting a di- 
 vorce 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 half- 
 hour 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 
 
 TOTE 6 TO CHAPTER VI. 
 
 That div'orce laws, by great laxity, and by allowing criminal 
 attachments of married persons to result in a new marriage be- 
 tween 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 ho more tend to multiply adultery and other high 
 Offenses against the family state than lax ones, as we seem tb 
 have Shown. But the influence of law is limited. No one sup- 
 poses that a good divorce' law will do more than abvidge'fne num- 
 ber of flagrant offenses against marriage. If adultery is punished 
 instead of being rewarded, there will be fewer instances of this 
 crime ; while loose law's, like those of Home under the empire, 
 where divorce by agreement or by action of one of the parties was 
 exceedingly easy, and concubinage was allowed, did hot diminish 
 the higher crimes, although adultery was punishable. We look, 
 then, beyond law to the idea of marriage, as the gospel present's 
 it to us, and tb 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. Borne, 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-heartednes's making home cheerless and leading to drink ; 
 the equality of Condition which make's the podr, 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 to- 
 ward 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 Massa- 
 chusetts, seeks to show this, and Bishop Cox, in eastern New 
 York, warns his nock, 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 evi- 
 dence for them meets us too plainly to be denied, although the 
 argument from the decrease in the size of families is not a con- 
 clusive one. But our point here is, how much is divorce con- 
 nected with such a vice as this? Must not the same want of 
 recognition of the true ends of marriage lead to this and to di- 
 vorce. A heathenized mind is seen in both. 'Say, a mind worse* 
 than that of some heathens, of the ancient Germans, for instance, 
 among whom " numerum liberorum Jinire flagitium haletur." And 
 what is the cause of this unwillingness to have a family ? 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, 
 
INDEX 
 
 The references are to the pages. C denotes cited. 
 
 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. Colo- 
 nies before the revolution, 210-213 ; not punished by English 
 law, 178; consequences of, in Prussia, 146; in France, 163, 
 165, gee also Divorce, Separation ; treatment of in canon law, 
 117 ; condoned by early church, 107 scq., 110; does not dis- 
 solve marriage in the Roman church, 67 et alibi; not repressed 
 by frequency of divorce, 90 ; Luther and Calvin on the pen- 
 alty of, 139 ; incestuous, what by English law, 175. 
 
 Alford, e., 63. 
 
 Annulment of marriage not divorce, 118; when allowed by ca- 
 nonical 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 Protestauts in, 150; concordat of, 238. 
 13* 
 
298 INDEX. 
 
 B. 
 
 Bakes, law of divorce in, 150. 
 
 Balsamon, c, 63 ; Appendix, note 2. 
 
 Basil, c, 63. 
 
 Betrothal, Hebrew, 12 ; Greek, 28 ; Roman, 35, 3G. 
 
 Beza, e., 134. 
 
 Bishop (on marriage and divorce), o., 180, 185, 187, 188, 192. 
 
 Burnet, c, 169. 
 
 C. 
 
 Calbtcs (Bishop of Rome), 88. 
 
 Calvin, «., 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 au- 
 thority, 243 seq. ; special cases, 250 seq., 253 seq. 
 Chemnitz, u., 131. 
 
 Chicago, city Of, number of divorces there in a year, 228. 
 Coemptio, form of Roman marriage, 36, 41. 
 Commentators, several Protestant, on divorce, T35, 136. 
 Concubinage among the Hebrews, 12 ; Greeks, 33 ; legalized at 
 Rome by Augustus, 88 ; frowned upon by Constantino, 97 ; 
 and Justinian, ibid. 
 Confarreatio, form of Roman marriage, 35, 41. 
 Conatantine the Great, his laws on divorce, etc., 91, 95-98. 
 Corpus juris eanonici, Gratian's decrees, 113, 118, 121; decretals 
 
 of Gregory IX., 1C6, 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., 1*71 ; on Lady RLcli 
 
 and Laud, ibid. ; on Foljambe's case, Appendix, note 4. 
 Cranmer, his opinioos on divorce, etc., 170. 
 
 D. 
 
 Demosthenes, 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 Halicarhassus, 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 legis- 
 lator, 55 ; his treatment of the law of Moses, 56, 57 ; meaning 
 of tropvela 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 sep- 
 aration a meitsa et torn, 73 ; his rules where one party is an 
 unbeliever, 74-82 ; the Christian party to be passive, 75 ; 
 remarriage of the Christian party not thought of, 76 seq., 80, 
 81, 82; meaning of ov 6e6ovfaJrcu, 77 seq. ; opinions of com- 
 mentators', 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 Eng- 
 land, 168-178; in the United States, 179-233 ; effects of on 
 family life, Appendix, note 6. See Romans, Constantine, 
 
300 INDEX. 
 
 Justinian, Theodosius, Prussia, France, England, United 
 States. 
 
 Divorce by consent of the parties legal by Roman law until Jus- 
 tinian's time, 92, 99 ; restored by Justin, 1 00, Appendix, 
 note 2 ; when legal in Prussia, 145 ; in France, 152 ; espec. 
 by the code civil, 1 6 1-1 64. 
 
 Divorce, opinions concerning. See Early Church, Catholics, Pro- 
 testants, Sacraments, Greek Church, 
 
 Divorce a memo, et toro not true divorce, see Separation ; divorce 
 on sentence of nullity, 118, see Annulment, Prohibited de- 
 grees. 
 
 Dower, at Athens, 30, 31, 32; at Borne, 48, 89 et ofe'M. 
 
 Dwight (President), c, 229. 
 
 E. 
 
 Eablt church, current opinions of, on marriage and divorce, 103 
 seq. ; these formed before marriage became a sacrament, 104; 
 in what cases it allowed complete divorce, 105, 106; Shep- 
 herd of Hermas on divorce, 107 ; Clement of Alexandria on 
 ditto, 110; Origen, 110; Tertullian, 110; Augustin and Pol- 
 lentius, 110, 111; Chryaostom, 111 ; Jerome, 112; case of 
 Fabiola, 112; voices in favtfr of divorce in, 114-116; treat- 
 ment of adultery by, 105, 117. 
 
 England, divorce and divorce law in, 168-118 ; divorces of Queen 
 Catharine, Anne of Cleves, Margaret of Scotland, 169; of 
 Marquis of Northampton by act of Parliament, 170; Cran- 
 raer's opinions on, 170 ; statute and canons of 1 James I. 
 171, 172; marriage of Lady Rich, an adultereBS, by Laud, 
 172; only Parliament dissolved marriage, 173 seq. • ecclesias- 
 tical 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 
 
 rlage after divorce possible, when tho term of appeal is past, 
 
 176. 
 Episcopal Church, Protestant, in United States, its canon of 1868 on 
 
 solemnizing marriage discussed, 248-250. 
 Ewald, u., 23. 
 Ezekiel, the prophet, xvi. 9, 12 ; xxiii. 15, 18. 
 
 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 ex- 
 pressed, 157, 158; determinate grounds of divorce, 159; di- 
 vorce by mutual consent, 161 seq. ; formalities and delays of 
 this kind of divorce, ibid. ; effects of divorce, 163, 164 ; sepa- 
 ration a mensa et loro now restored to French law, 1 64 ; 
 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, e. See Corpus j. u. 
 
 Greek Church, what marriages forbidden in, 106 ; looser in allow- 
 ing 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 con- 
 cerning divorce, 33, 34. 
 
 Gregory's decretals. See Corpus j. c. 
 
302 Index. 
 
 H. 
 
 Hallam e. 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 from, 107, 108, and note. 
 
 Hillel, his doctrine of divorce, 15-16. 
 
 Hippolytus, c, 88. 
 
 Hitzigon Malachi. 23. 
 
 Honorius (emperor), his divorce legislation, 98. 
 
 Horace, c, 44. 
 
 Hug, his opinion On Matthew xix. 9 rejected, 66. 
 
 Huther on 1 Tim. ili. 2, a, 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 i 
 
 number of divorces in, 227. 
 Innocent III. (pope), c, 106, 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 ; 6sp. his 22d novel], Appendix, note 2 ; his 117th novel], 
 
 99. 
 Juvenal, c, 44. 
 
IHDES. 303 
 
 Kayser (Prof), 18th cent., his opinions on divorce, 140. 
 
 Keil on Malachi, 23. 
 
 Kent (Chancellor), c., JL80, 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. 
 
 Leo (emperor), the philosopher, 97. 
 
 Lingard on the reformatio leg. eeclesiast., 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 convention, 154 seq. 
 
 Maine, State of, its divorce laws, 198, 200, 202-204, 214. 
 
 Malachi ii. 11-16 explained, 23. 
 
 Mansfield, B. 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, 1 2 ; 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. ; coemplio, 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 church, 113; opinions on the other side, 115»-ej. 
 
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. 
 Mediaeval and barbarian laws of divorce, Appendix, note 3. 
 Meyer, commentary on N. Test., c, 65, 66, 76, 78, 83. 
 Mixed marriages, 107. 
 
 N. 
 
 Napoleon I. (when first consul), his views of divorce, 157. 
 
 Neander on 1 Corinthians, v., 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. 
 
 Omo, statistics of divorce, 221, 226, 228. 
 Origen, c, 63. 
 
 Patjlus (Roman jurist), c, 92, 93. 
 
 Pennsylvania, divorce laws of, 198, 202, 216; penalty for adul- 
 tery 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, 120 ; 
 adoption, consanguinity, etc., to What degrees a hindranco to 
 marriage, 120-123; rule of Alexander VI., 120; of Greg- 
 ory I., 121 ; of Innocent III., 121; of Gregory IX., ibid. 
 
 Protestant view of marriage and divorce, 126-140: how it grew 
 up, 1 21, 128; opinions of reformers, 128 seq. ; of Luther, 129, 
 130; of Chemnitz, 131; Zwingli, 132; Calvin, 132-134; 
 Seza, 134; of Protestant commentators, 135, 136; of eccle- 
 siastical ordinances, 136-139. 
 
 Prussia, divorce legislation of, 140-150; project of Cocceii (1149), 
 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; com- 
 plaints against the law, and attempts to reform it, 149, 150. 
 See Savigny. 
 
 Reform in divorce laws, what kind of, demanded in the U. S., 
 258-272. 
 
 Reformatio legum ecclesiast., 170. 
 
 Eein, his Rom. Privatrecht, 39, 90, 92 
 
 Remarriage of a divorced person, 60. 
 
 Rhenish Prussia, divorce in, 163. 
 
 Ehode Island, divorce laws of, 205, 214, 216; penalty for adul- 
 tery, 211. 
 
 Richter's Kirchenrecht, c, 115, 238, Appendix, note 3. 
 
 Rochau, Ton, c, 168. 
 
 Romans, their early forms of marriage, 35-37 ; first practice as 
 to divorce, 38; early divorces, 39; later laxity, 41-49 ; ex- 
 amplos of divorce, 45-47 ; divorce laws under Augustus, 47, 
 
306 INDEX. 
 
 48, 8'6-89 ; 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 
 gratid, Appendix, note 2. 
 
 S. 
 
 Saalschutz, 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), «., Appendix, note 3. 
 Schmidt, C. (of Strasburg), «., 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 on 1 Corinthians, c, 78. 
 State may be in conflict with church as to divorce, 23T seq. ; what 
 
 the state may do, 237, 241 ; State laws of divorce, what 
 
 they ought to be, 258 seq. 
 State trials (Eoglish), c., 173, 174. 
 Strippelmann, c, 225. 
 
 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; Jer- 
 emiah iii. 6-14, 18; Ezekiel xxii. 9, 12; xxiii. 45, 18; 
 Malachiii. 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 (iu Magna Graecia), 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. 
 
 TJhited States, divorce and divorce lawsin, 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 
 Bolely to the courts, 184 ; some States only know of separa- 
 tion a vinculo, 186; most allow separation u, 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 mensa 
 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". Caro- 
 lina, Iowa, Indiana, 204, 205 ; law of Illinois how inter- 
 preted, 206, 207 ; residence required in order to get a di- 
 vorce, 206; adultery, how treated by the States, 209, 210. 
 by thecolonies, 210 seq.; effects of divorce on property, 214; 
 on power of marrying again, 214-216; divorce on the in- 
 crease, 217, 218 ; statistics of certain States, esp. Connec- 
 ticut, compared with Prussia and France, 219-232. 
 
 TJSUS, a kind of Roman marriage, 35, 41. 
 
 T. 
 
 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, a, 16T. 
 Tirginia, divorce laws of, 199 ; penalty of adultery, 209, 211 seq. ; 
 mode of divorce, 183, 184. 
 
 W. 
 
 "Wachtbb, his Ehescheidungsrecht, 49 ; Appendix, note 2. 
 Walter, his Kirehenrecht, ft, 107 ; notes, 113, 114, 122, 125, Appen- 
 dix, note 2. 
 Wilda's Strafrecht, c, Appendix, note 3. 
 Winer, c, 25, 76. 
 
 Xenophon, c, 26. 
 
VKARLfS SC RIBNEX. A. C. ARMSTRONG. A. J. PEABODY, 
 
 €onbcmcb Catalogue 
 
 OF THE PUBLICATIONS OF 
 
 CHARLES SCRIBNER & Co., 
 
 654 BROADWAY, 
 
 New York. January> i868 
 
 »*# The figures in the last column of this Catalogue refer to Charles 
 ScribNer & Co.'s Descriptive Catalogue, copies of which will be sent to any 
 address upon application. 
 
 *% Blanks in the column of prices, except in the case of School Text-Books, 
 the prices of which may be learned from CHARLES SCRIBNER & Co.'s Educa- 
 tional Catalogue, indicate that the Works are either out of print or in press. 
 
 »*„ In this list the names of Books just published are given in SMALL CAPI- 
 TALS ; those issued during the year 1 867, as well as new editions of Works pre 
 viously produced, are indicated by italics. 
 
 »** The prices here given are for the regular style of binding in cloth. Books 
 furnished in other styles, and their respective prices,may be learned from the 
 Descriptive Catalogue. 
 
 »*» Any of these Books will be sent post-paid to any address upon receipt of 
 the price. ^___ 
 
 Adams, W., D.D. 
 
 Thanksgiving 
 
 Three Gardens 
 
 Agassiz, Prof. Louis. 
 
 Structure of Animal Life (The) ... I 8vo 2 50 
 
 Alexander, A., D.D. 
 
 Moral Science t i2mo I 50 
 
 Alexander, J. W., D.D. 
 
 Alexander, Archibald, Life of, (Portrait) . 1 
 
 Christian Faith and Practice (Discourses) . 1 
 
 Consolation (Discourses) .... I 
 
 Faith (Discourses) I 
 
 Forty Years' Correspondence with a Friend 2 
 
 Preaching, Thoughts on .... 1 
 
 Volumes. Size. 
 
 Price. Page 
 
 I l2mo 
 
 $2 CO 2 
 
 I I2mo 
 
 2 CO t 
 
 umo 
 
 2 00 
 
 J 
 
 i2mo 
 
 2 00 
 
 6 
 
 1 21110 
 
 2 00 
 
 5 
 
 1 2 mo 
 
 2 00 
 
 6 
 
 l2mo 
 
 4 00 
 
 4 
 
 i2mo 
 
 2 00 
 
 5 
 
1 Charles Scribner & Co.'s Condensed Catalogue. 
 
 Volumes. Size. Price. 
 
 Alexander, J ; A., D.D, 
 
 Afts (Commentary) 2. I2mo $4 00 
 
 Isaiah " (complete) 2 8vo 6 50 
 
 " " (abridged) ... 2 12 mo 4 00 
 
 Mark " I izmo 2 00 
 
 Matthew " 1 i2mo 2 00 
 
 Psalms " 3 i2mo 6 00 
 
 New Test Literature and Ecc Hist. . . 1 i2mo 2 09 
 
 Sermons (with Portrait) .... 2 l2mo 
 
 Allston, Washington. 
 
 Lectures and Poems I i2mo 2 50 
 
 Andrews, Rev. S. J. 
 
 Life of Our Lord .1 post 8vo 3 00 
 
 Armstrong, G. D., D.D. 
 
 Works of 3 i2moea.i 25 
 
 Bautain, Prof. A. 
 
 Extempore Speaking I i2mo 1 50 
 
 Beecher, Rev. H. W. 
 
 Prayers from Plymouth, Pulpit, . . 1 i2mo 175 
 Botta, Prof. 
 
 Dante as. Poet, Patriot, Philosopher . . 1 crown 8vo 2;. 50 
 
 Brace, Charles L. 
 
 Hungary, with Experience of Austrian Police; 1 izmo 
 
 Home Life in Germany 1 izmo 
 
 Norse Folk I i2mp 2.00 
 
 Races of Old World I post 8vo 2 50 
 
 Short Sermons for Newsboys . . . 1 i6mo 1 50 
 
 Bushnell, Horace, D.D. 
 
 Character of Jesus j i8mo 1 00 
 
 Christ and his" Salvation .... I !2mo 2 00 
 
 Christian Nurture I izmo 2, 00 
 
 Nature and the Supernatural ... I i2mo. 2 25 
 
 New Life, Sermons for .... I i2mo 2 00 
 
 Vicarious Sacrifice, The . . . . 1 8vo 3 00 
 
 Work and Play I i 2m o 2. 00 
 
 Cheever, G. B., D.D. 
 
 Works of 3 , 2mo 
 
 Clark, Prof. N. G. 
 
 English Language, Elements of . . . 1 i2tno I 25 
 
 Collier, J. Payne, F.S.A. 
 
 Rarest Books in English Language . . 4 small 8vo. 12 00 
 
 Conybeare, Rev. W. J., and Howson, Rev. J. S* 
 
 St. Paul, Life and Epistles of (illustrated) 2 8vo 7 50 
 
 Page, 
 8 
 
 I 
 8 
 8 
 7 
 9 
 9 
 
 '3 
 
 «+ 
 
 IS 
 >4 
 IS 
 
 3 
 
 19 
 
 i i 
 18 
 
 17 
 
 19 
 
 18 
 
 19 
 
 2f 
 
 22 
 
Charles Scribner & Co.'s Condensed Catalogue. 3 
 
 Volumes., Sizfc. Price. 
 
 P»Sf- 
 
 I crown8vo$2 50 
 
 24 
 
 2 8vo 7 50 
 
 23 
 
 1 i2mo t 50 
 
 24 
 
 I 00 — 
 
 i2mo 
 
 8vo 
 8vo 
 
 i2mo 
 i2mo 
 l2mo 
 
 5° 
 
 4 00 
 
 00 
 
 75 
 
 5° 
 5° 
 5° 
 
 Cook, Prof. J. P., Jr. 
 
 Religion and Chemistry . . 
 
 Craik, Geo. L., LL.D. 
 
 English Literature and Language 
 
 Crosby, Prof. Howard, D.D. 
 
 New Testament with Notes 
 
 Crummell, Rev. A. 
 
 Africa, Future of . 
 
 Dana, A. H. 
 
 Ethical and Physiological Inquiries 
 
 Dana, R. Hi 
 
 Poems and Prose Writings . . 
 
 Dawson, Henry B. 
 
 Fcederalist (Univ. Ed.) . . 
 " with Notes . . 
 
 Day, Prof s H. N. 
 English Composition 
 Discourse,, (Rhetoric) 
 Logic . ."'.'. 
 
 Derby, Edward, Earl of. 
 
 Homer's Iliad (translated) . 
 
 De Vere, M. Schele, LL.D. 
 
 Studies in Englisk . . 
 
 DlNGMAN, J. H. 
 Publisher's Sheet-Book 
 
 Drummond, Rev. Jas. 
 
 Christian Life, Thoughts for 
 
 Duyckinck, E. A. and G. L. 
 
 Cyclopedia of Am. Literature (400 Portraits, &c) 2 royal 8vo 10 00 
 
 DWIGHT, BENJ. W. 
 Philology, Modern 2 
 
 Ellet, Mrs. E. F. 
 
 American Revolution, Domestic History of I 
 
 " " Women of . . 3 
 
 Pioneer Women of the West ... I 
 
 Queens of Am. Society (13 steel engravings) 1 
 
 Elliott, Charles W. 
 
 New England History 2 
 
 EWBANK, TpOS. 
 Hydraulics I 
 
 Eelter, S. A. 
 "Arithmetics, Natural Series of ... 1 
 
 2 crown 8vo 5 00 
 1 crown 8vo 2 50 
 
 I Folio 15 00 
 
 i2mo 1 50 
 
 8vo 
 
 l2mo 
 i2mo 
 i2mo 
 l2mo 
 
 8vo 
 
 8vo 
 
 6 00 
 
 1 50 
 
 6 00 
 
 6 oa 
 
 25 
 
 25 
 
 25 
 25 
 
 26 
 26 
 27 
 
 28 
 
 29 
 
 29 
 
 3° 
 
 3' 
 
 3° 
 
 32 
 
 33 
 32 
 33 
 
 34 
 
 34 
 
 35-3S 
 
4- Charles Scribner & Co.'s Condensed Catalogue. 
 
 Volumes. Size. Price. Page 
 
 Field, Henry M., D.D. 
 
 Atlantic Telegraph, History of ... I l2mo $1 75 37 
 
 Fisher, Rev. Prof. Geo. P. 
 
 Supernatural Origin of Christianity . . I 8vo 2 50 38 
 Silliman, Benj., LL.D., Life of (Portrait) 2 crown 8vo 5 00 37 
 
 Forsyth, Wm. 
 Cicero, New Life of (Illustrations) . . 2 crown 8vo 5 00 3^ 
 
 Fowler W. C, LL.D. 
 
 Sectional Controversy (The) . . . x 8vo I 75 39 
 
 Froude, J. A. 
 History of England .... 10 crown 8vo 3 00 ea. 40 
 Short Studies on Great Subjects . . 1 crown 8vo 3 00 41 
 
 Gage, Rev. W. L. 
 
 Carl Hitter, Life of .... . I I2mo 2 CO 42 
 
 Gasparin, Count. 
 
 America before Europe .... I i2mo 2 00 42 
 
 Gibbons, J. S. 
 
 Public Debt of the United States . 1 crown 8vo 2 00 43 
 Guizot, M. 
 
 Meditations (First and Second Series) . 2 i2moea.i 75 43 
 
 Guyot, Prof. Arnold. 
 
 Geographies, Wall Maps, Key, etc. . . - — — 44-47 
 
 Hall, Edwin, D.D. 
 
 Puritans and their Principles ... I 8vo 2 50 48 
 
 Halsey, Rev. Leroy J. 
 
 Bible, Literary Attractions of . . . • i izmo 1 75 48 
 Headley, J. T. 
 
 Complete Works of 15 f 49 
 
 Heidelberg, 53 
 
 Catechism I ama u 4to 3 j ^ 
 
 Herbert, H. W. 
 
 Works of 3 i2moea.i5o 54' 
 
 Holland, Dr. J. G. (Timothy Titcomb ) 
 
 Bay-Path. A Novel I I2mo 2 ^ jg 
 
 Bitter-Sweet. A Poem . . . . 1 i 2 mo 1 50 56 
 
 Gold Foi ' I l2mo I 75 56 
 
 . Kathrina. A Poem , , 2mo , so | 9 
 
 *, Lessons in Life , , 2mo , -- „ 
 
 Letters to the Joneses 1 i2mo 1 75 57 
 
 Let«rs to Young People , 12mo , 5 g ?- 
 
 Miss Gilbert's Career ! i 2mo a „, 59 
 
 Plain Talks on Familiar Subjects . . 1 i 2m o 1 75 58