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DIVORCE 
 
 DIVORCE LEGISLATION 
 
 ESPECIAI.I.Y IN THE 
 
 UNITED STATES 
 
 BY 
 
 THEODORE D. WOOLSEY 
 
 SECOND EDITION ItEVISED 
 
 NEW TOEK 
 
 CHARLES SCRIBNER'S SONS 
 
 743 AND 745 Bboadwat 
 
 1883 
 
COPYEIGHT BY 
 
 CHAELES SCBIBNER & CO. 
 1869 
 
 COPTEIOHT BT 
 
 OHABLES SCBIBNEE'S SONS 
 I8S2 
 
 Trow's 
 
 Printing and Bookbinding Company 
 
 201-2T3 East iztA Street 
 
 NEW YORK 
 
PREFACE TO THE SECOND EDITION. 
 
 Lt this new edition of "Divorce and Divorce 
 Legislation," the first part is printed, with the ex- 
 ception of some corrections and a few notes, nearly 
 as it appeared in 1868. The remainder, including 
 the end of Chapter IV., and Chapters V. and YI. 
 is rewritten. The Appendix is in part new. 
 
 "When the work first appeared, many were be- 
 ginning to be alarmed at the distance to which the 
 divorce laws in this country,, and especially in New 
 England, had departed from the command of 
 Christ, and even from the views of the early set- 
 tlers of New England. After a lapse of thirteen 
 years, the interest in the subject is greatly in- 
 creased. There seems to be a firm resolve taken 
 in all Christian denominations to do what can be 
 done in purifying and Christiani^iing the law of 
 divorce in this part of the Union; and in the 
 course of the new movement, better knowledge has 
 been gained of the extent to which loose opinions 
 
IV PEEFACE. 
 
 and loose practices have proceeded. I have made 
 use of the information gathered in various quarters, 
 which was not accessible in 1868, for the present 
 work; new researches of great value were given 
 to the world by Mr. Can-oil D. Wright, in 1880.; 
 Dr. Nathan Allen has laid the public under new 
 obligations for his humane studies in this branch ; 
 and a number of gentlemen, with no little toU, 
 have drawn from the records of courts statistics 
 before unknown. I wish to express my obligations 
 to all these gentlemen for doing what only one 
 State for a long time took the trouble of doing ; 
 and especially to acknowledge myself largely in- 
 debted to Kev. S. "W". Dike, of Koyalton, Yt., for 
 his energy and its valuable results in this field. 
 
 Deeemlber, 1881. 
 
PREFACE TO THE FIRST EDITION. 
 
 The followiag Essay is a reprint of articles 
 wliicli 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 
 
PEEFACK. 
 
 ample can reach. The call came to htm be- 
 cause he had studied the subject in connection 
 with lectures on Natural Eight and the State, 
 delivered in Tale College, and was supposed 
 to have some familiarity with the exegesis of 
 the I^ew 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 
 thdre 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. 
 
PEEFACE. 
 
 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 ; Eev. W. W. Andrews and 0. 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, HI., and Henry Hitchcock, 
 Esq., of St. Louis. 
 
 Ubtv Hatbit, March 31, 1869. 
 
TABLE OF OOK'TEKTS. 
 
 CHAPTER L 
 
 FASE 
 
 DrvOBCE AMOKG THE HEBKEWS, GkBEKS, AND BOMAN& 9 
 
 CHAPTER n. 
 Doctrine op Divobce in the New Testament 50 
 
 CHAPTER ni. 
 
 Law op Divokcb in the Roman Empikb and in the 
 Christian Church 86 
 
 CHAPTER IV. 
 Divorce and Ditobce Law in Europe since the 
 Repormation 133 
 
 CHAPTER V. 
 DivOECE and Law op Divorce in the TJNrrED States. 194 
 
X CONTENTS. 
 
 CHAPTBB VL 
 
 vkas 
 
 DwiY OF THE Chtiech towakd Ditokob — Some Hints 
 ON DivoECE Legislation 251 
 
 APPENDIX. 
 Note on Dbutebonomt xxiv. 1-4 301 
 
 Note on Cebtain Passages in I. Timothy and in 
 Titus 303 
 
 Notes on the Twenty-second Notbll op, Jus- 
 tinian. 304 
 
 Some Notices of Ditobce Laws in the Middlb 
 Ages 307 
 
 FoLJAivTBE's Case. 310 
 
 M. Naqubt's Projects of a Divokce Law 313 
 
 Extracts from an Article in the Wew Englander 
 for July, 1866, by Eet. Henry Loomis 315 
 
 Inde:^ '. 319 
 
ESSAY ON DIVORCE. 
 
 CHAPTEE I. 
 
 DIVORCE AMONG THE HEBREWS, GREEKS, AiTD 
 ROMANS. 
 
 In the present elaapter we shall attempt to give 
 an account of the law and practice of divorce 
 among the Hebrews, Greeks, and Eomans, 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 HEBEEWS, 
 
 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. M- 
 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. 
 
 nrVOKCE 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 
 
11 
 
 twain shall be one flesh." Here the union of one 
 man with ouly 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 gi-eater " 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 Shunammi- 
 
12 DIVORCE AMONG THE HEBEEWS, 
 
 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 kiag 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 him witb 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 pUlegesch 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 
 sla've. 
 
 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 tliy 
 companion and the wife of thy covenant ;" and 
 Ezekiel : " I sware unto thee, and entered into a 
 covenant with thee, and thou becamest mine." 
 
 * Comp. Saalsohutz ; Mos. ReoM. , p. 748, ed. 3. The priests 
 were forbidden to marry a divorced woman (Levit. xxj. 7, 14). 
 
GEEEK8, AND ROMANS. 13 
 
 • In numberless instances the word zanah, to play 
 the whore, is transferred to signify a breach of the 
 covenant-relation between God and the people by 
 the crime of idolatry. Closeness of union and 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 mie 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 generally given 
 or a price was paid by the bridegroom, and this 
 answers to the purchase of the wife, which was prac- 
 ticed over a large part of the world in ancient 
 
14: DIVOECE AMONQ THE HEBEEWS, 
 
 times, as 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, Ee- 
 bekah, her mother and brother also receiving 
 " precious things." In the case of Jacob, as he had 
 ■ nothing to pay, service was rendered as an equiva- 
 lent. 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 be- 
 longed to it in the marriage usages of other nations. 
 A distinguished writer on Jewish antiquities tries 
 to show that the custom among the Jews amount- 
 ed 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. 
 ISTevertheless 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, and 
 Ewald, Antiq., U, 3, b'. 
 
GEEEKS, AND B0MAN8. 15 
 
 •withoiit hazarding tke 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 Emperer 
 Augustus attempted to give legal form to divorce 
 among the Eomans 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 of controversy between the schools 
 of Shammai and Hillel : the latter understanding 
 it of any thing offensive or displeasing on the part 
 of the wife ; the former giving it an ethical sense, 
 according to most modern writers, as if it were to 
 
16 DIVOECE AMONG THE HEBEEWS, 
 
 be confined to an act of imnrorality like adultery. 
 Winer, however, says that the Gemara makes the 
 Tiew 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 ai-e 
 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 : " Ervaih dabar 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 Kabbins follow, explained it as 
 
GEBEKS, AND EOMANS. IT 
 
 something disgusting or cmy 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, protectio7i 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 fot 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- 
 band would need the help of some Levite or other 
 educated person, of whom he would stand in a 
 
 * Iq the forma given by Selden, TJzor Hebr., iii., 24, no men- 
 tion is made of any reasons. 
 
18 DIVOECE AMONG THE HEBEEWS, 
 
 certain awe, if conscious of tlie frivolity of the 
 reasons for a divorce (see note 2, Appendix). 
 
 How far this statute went into general use, we 
 have no means of knowing. Two passages, one in 
 Isaiah (h 1), and one in Jeremiah (iii. 8), refer to 
 the bill of divorcement to lUnstrate God'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 common 
 use. The passage in Jeremiah however suggests a 
 difficiilty. God put backsliding Israel away and 
 gave her a bill of divorce on account of her adul- 
 tery. May we argue from this that the penalty of 
 death for this crime was now softened down, on 
 account of the great corruption of manners, into 
 repudiation ? The passage in Ezekiel (xxiii. 45, 46), 
 where judgments by righteous men in cases of 
 adultery are spoken of, proves the contrary. Jere- 
 miah adapts his simile to the facts of the case. 
 The adultery of Israel was a giving up 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 at once the wives of one husband, a 
 thing directly against the law of Moses. The hus- 
 band was not bound to g^t his wife punished. 
 
GEEEK8, AND BOMANS. 19 
 
 3. The divorced wife may now contract mar- 
 riage with another man, but if separated from him 
 bj 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, jind her feelings, when 
 
20 DrVOECE AMONG THE HEBEEW8, 
 
 she felt herself to he pnt in the hackground, 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 foreyer 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 Brumann Gesch. Koms., iii., 107. 
 
G2EEKS, 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 Deut. xxii. 28, 29. The substance of it is, 
 that a man who deflowers an unbetrothed virgin, 
 besides paying a fine to her father, shall take her 
 for his wife without the power to " put her away 
 all his days." The other (vv. 13-19 of the same 
 chapter) contemplates a newly married man's 
 spreading an evil report concerning his wife's 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 irom one who could never get 
 rid of the detested object. We can only answer 
 that the law allowed no such cruelty, that her 
 family fiiends could act as her defenders, and that 
 on his death she could not, it is probable, be 
 stripped of the use of some portion of his property. 
 We have no means of judging whether the 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 DIVOECE 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 fixjm 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 tlie offerings of such men, because 
 they have dealt treacherously or unfaithfully each 
 one againstthe wife of his youth, who is his compan- 
 ion and the wife of his covenant. The next words 
 are among the obscurest in the Bible, and if we 
 could make them plain, they would require too 
 long a comment for this place. Then tlie prophet 
 adds : " therefore take heed to your spirit and let 
 none deal faithlessly against the wife of his youth. 
 Tor the God of Israel saith that he hateth putting 
 away, for one covereth 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 
 
GEEEKS, AOT) BOMAITS. 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 irom 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 Jehovabj etc., and him who heapeth crime 
 on his wife." JSTor is Hitzig reluctant to adopt 
 the translation wife instead of garment at the end 
 of the passage.* 
 
 Hitzig well remarks on the passage, " that the 
 putting away of the wife was indeed permitted 
 (Deut. xxiv. 4), but was not on the whole a thing 
 which God could look on with complacency, and 
 in the case before us it had in it something hateful, 
 not merely on account of its freqi^ency. Perhaps 
 we have here the beginning of the stricter doc- 
 
 * A condensed exposition of this passage is given by Keil ia 
 his Commentary on the twelve minor prophets, not long since 
 published (1866). Headopts Kohler's views almost throughout. 
 
24: BITORCE AMONG THE HEBEEWS, 
 
 trine of the New Testament." The beauty and 
 noteworthiness of the passage consist in tlie deep 
 moral and religious feeling which pervade it. The 
 wife and husband are bound by a covenant. To 
 put a wife away is to break that covenant, to act 
 treacherously or faithlessly. This is what God 
 hates. "We have thought while studying this 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 teU 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 EOMASS. 25 
 
 ability is that multitudes of Ms countrymen, es- 
 pecially the more heathenish part of them, made no 
 scruple of dismissing their wives at pleasure.* 
 
 DIVOEOE 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 Hephagstus, must have been defiled them- 
 selves, and must have grown more so fi-om famili- 
 
 * The authors ■whom we have principally relied upon are Saal- 
 schiitz (Mosaisches Beeht), Seldeu's Uxor Hebr. in VoL IL of his 
 •works, Winer's Realwort., and leading commentators. Selden, 
 from the mixture of the Kabbinioal and scriptural, is very -wea- 
 risome and confusing. 
 2 
 
26 DrVOECE AMONG THE HEBREWS. 
 
 arity with snch examples. Still a simple unsen- 
 sual mode of life, and original tradition guarding 
 the saeredness 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 his 
 mind by taking part in public affairs. Was it 
 strange, when as a matron she came to have a 
 larger liberty, that she should abuse it ? Or was it 
 sti-ange that the hetaera, conversant with men and 
 used to please men, should usurp the wife's influ- 
 ence ? But it was strange, sadly strange, that the 
 corruption of morals 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 Lycurgns. This 
 scholar of Socrates can have had no moral but only a political 
 view of marriage. 
 
GEEEES, AND EOMAITS 27 
 
 ger men, and if not without rebuke, yet swept 
 abroad so widely, as to be the greatest disgrace 
 of tlie 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 Eoman periods, if we jadge 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 sei-vices 
 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 ahow that he was awake 
 to the importance of purity in the family relations. A passage ■ 
 in the eighth book, where he would have law attempt to secure ■ 
 In the new city a degree of purity which he regards as almost 
 chimerical, is well worthy of notice (p. 841, D). 
 
28 DrVOEOE AMONG THE HEBEEW8. 
 
 nification of a gift or present at first, and as tte 
 father wonld 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 eattle- 
 Jmding, 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 
 
GBEEKS, AND E0MAN8. 29 
 
 a lawful wife, whereas under Roman law tlie 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 hyrios — 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 Home," so it was with marital power 
 also. After the death of the husband or the di- 
 vorce of tlie parties, the vnfe fell under the author- 
 ity or guardianship of her next blood relative. 
 
 Divorce at Athens was easy and frequent. It 
 took two shapes,, distinguished of1;en by different 
 words, being called sending away or out of the 
 house {ajpo^empein or ekpempein), when the hus- 
 band repudiated the wife ; but quitting amd going 
 awayiapoleipein) 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 ekbsilleiii, apoluein, aphienai. 
 
30 DIVOECE AMONG THE HEBKEWS, 
 
 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 guardians 
 of the orator Demostlienes during his minority. 
 Protomachus, a man in needy circumstances, hav- 
 ing" the same chance, persuades his fiiend 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- 
 
GEEEK8, AND BOMANS. 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. ■ DIVOECE AMONG THE HEBREWS, 
 
 hyrioSy subject to the stated payments of interest. 
 If paid over, seciirity was taken on her behalf 
 -upon her husband's property, and he was also 
 bouiid personally for it. If he delayed to pay it over 
 after the divorce, eighteen per cent, yearly interest 
 was due tor 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 ia 
 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 
 modem 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 Grsecia, 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 
 
QEEEZS, AND JE01IAN9. 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 frona 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 
 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 
 
 * Leges xi., p. 930, A, 
 
34 DivoEOE AMOire the Hebrews, 
 
 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 contemplates more than ear- 
 nest persuasion, this 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 Kepublic testifies. 
 It needed a gospel of holiness to put the Greek 
 mind on a better track in regard to marriage and 
 divorce.* 
 
 DIVOECE AMONG THE EOMAITS. • 
 
 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 early institutions, more 
 than those of any western nation, partake of 
 patriarchal life. The closeness of the family tie, 
 
 * The principal nuthoritiea besides passages of authors, and 
 especially of Demostlienes in his private orations, arethewriterson 
 Attic law, especially Meyer and Schomann's Attische Process, 
 page 408, onward ; Platner's Process, part 2, page 245 ; and the 
 writers on archseology, especially K. F. Hermann. 
 
GEEEKS, AND E01VTANS. 35 
 
 the septs or gentes of the patricians, and the vast 
 powers of the housemaster over wife, children, and 
 slaves, which it took ages to undermine, all point 
 in that direction ; and their peculiar veneration 
 for ancient form in all things is of the same source. 
 In fact so essential is the early constitution of the 
 household to the Roman State, that State life, as 
 it first shows itself, may be said to have grown 
 directly out of family life. 
 
 Roman marriage in its earliest, forms was for 
 the wife a passing out of her natural family, where 
 she was under the absolute control of its head, 
 into the family of her husband, whose control was 
 nearly the same as that of her father or 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 marvus was acquired 
 by the husband. Of thesCj without entering dnto 
 the province of Roman archaeology, it seems 
 necessary to say a word for the better comprehen- 
 sion of the subject. The oldest of them, confarrea- 
 tion, which was exclusively patrician, was cele- 
 brated with special formalities by public priests 
 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 DIVOECE AJMOITG THE HEBEEWS, 
 
 when the bride, after the regular betrothal and 
 nuptials, had cohabited with her husband for a 
 year without an absence of three successive nights, 
 the manus or marital power was fully secured. 
 Here the marriage and the man'us originated in 
 two acts widely separated in point of time. The 
 remaining form, of originally plebeian origin, — co- 
 emjpUon — ^was a kind of fictitious sale, much like 
 that used in adoption and emancipation, and here 
 the daughter's consent was needed for the existence 
 of the manus and the marriage. These may be 
 called forms of ciml marriage. This last form 
 had become obsolete before Gaius wrote his insti- 
 tutions under M. Aurelius. The two others were 
 in a state of decay under the earlier Roman em- 
 perors (comp. Gaius, i.. Ill, 112, 113). 
 
 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 imiversal form among 
 the Eomans. 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 mam,us and no rights over 
 any part of her property except the dower. The 
 
GEEEKS, AND EOMAITS. 3T 
 
 motive which gave rise to this kind of marriage 
 may have been the unwillingness of the woman's 
 father to lose control over her and her property 
 in favor of one who was suspected or imperfectly 
 known. It is one, and perhaps the earliest, of 
 a series of innovations, by which patriarchal, 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 manus 
 was acquired the wife had no rights over herself 
 or next to none, while the husband could dismiss 
 her from his house at his pleasure. In the free 
 form of marriage, the husband and the person -who 
 exercised the paternal power over the married 
 woman, or she herself, if she was sui juris, had 
 concurrent right to effect the separation of the 
 parties. Of such authority exercised by the wife's 
 father the comic poets of Rome furnish us with 
 instances, but in process of time, if he took this 
 step where there was an harmonious union and 
 perhaps a family of children, the husband had a 
 legal remedy against him. 
 
 The husband himself, moreover, was to some ex- 
 tent controlled by a very remarkable Roman in 
 stitution, which derived its sanction from old cus 
 torn rather than from positive law, — a family court, 
 consisting of blood-relations of both parties, to- 
 
38 
 
 DIVORCE AMONG THE HEBEEWS, 
 
 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 taking council of friends, but the 
 same stigma might have been put upon him for 
 expensiveness, or other conduct not exactly illegal. 
 In the freer kind of naarriage, 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 
 Komulus 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 beingnecessary 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 lalse keys, and adultery. Wine- 
 bibbing on the part of the wife we know from 
 
GREEKS, AND EOMAH-8. 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 someway 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 
 census, required him to declare, on oath, that he 
 had, or would have, a wife liberorum qumrendoruin 
 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, Taler. Max., 
 iL, 4, and by other writers. For explanation of it we refer to 
 Eeln'a Rom. Privatrecht, p. 208, and to an essay in Savigny's 
 vermisoht. Schrift, vol. i., Xo. 4. He violated public feeling 
 and his conscientious scruples were a mere pretext. 
 
40 DrVOECB AMONG THE HEBREWS, 
 
 rejecting the story altogether. Various have been 
 the attempts to erplain it or to reconcile it with 
 the probable state of facts. It may hare 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 
 Eoman 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. 
 Kome 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 
 
GEEEK8, AiTD EOMANS. 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 foreigner, who made up a large 
 part of the free population of Home. 
 
 Toward tlie 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 and 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 
 criraei of adultery would be diminished by the pow- 
 er thus furnished of entering into a new marriage 
 
 * lu the confarreaMo or religious mafriage of the patricians, 
 a form called diffarreaUo—Vasii is, separation with the ceremony 
 of offering the cake of spelt, as confarreaMo denoted union with 
 the same ceremony — dissolved the marriage tie. In both coemptw 
 and nsus, it is probable, a form called remancipatio, another ficti- 
 tious sale, set the wife free from her husband. In marriage 
 without the numus no form was necessary, and this kind of mar- 
 riage at the fall of the Republic had superseded the others almost 
 entirely. 
 
42 DIVOECE AMONG THE HEBREWS, , 
 
 with an object of guilty attachment. But adultery 
 too went a]ong 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 Kepublic, 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 
 sediles that some of the leading matrons had pre- 
 
QEEEKS, AND BOMA.NS. 43 
 
 pared and admiEistered 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 Eome, 
 being convicted of the same crime by a court of rel- 
 atives, were put to death.* 
 
 Nor ought we to overlook that ftightful 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. o. 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, iL, 37, and Bpit. xlviii. 
 
44 DIVOECE AMONG THE HEBEEWS, 
 
 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. They are more apt. 
 however, to dwell on avarice, lust of power, and 
 luxury as the groundwork of the evil, not making 
 enough of the decay of religion and the family, and 
 stni less aware of the deadly influence of slavery. 
 The satirist Juvenal speaks thus of the sources 
 of the corruption (vi., 294) : 
 
 Nullum crimen abest f aoiausque libidinis, ex quo 
 Fanpertas Bomaua perit. 
 
 And again (vi., 298) : 
 
 Prima peregrinos obscoena pecunia mores 
 Intulit, et turpi f regemnt secula luxu 
 Divitiae moll'es. 
 
 But Horace goes more to the roots of things, 
 when he says 
 
 Feouuda culpse seoula nuptias 
 
 Primum inquinavere et genus et domos. 
 
 Hoc fonte derivata clades 
 
 In patriam populumque fluxit. (Carm., iii., 6.) 
 
 We know Eome 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- 
 
GEEEES, AlTD EOMAKS. 4:5 
 
 priety on the part of the woman formshed 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 hdbeto. An early instance of this occurs 
 in the case of JEmilius PauUus, 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 PauUa 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 DIVOECE AlIONG' THE HEBREWS. 
 
 was often counteracted, as has been remarked, by 
 a greater advantage in prospect. 
 
 The lives of many of the most eminent Eomans 
 show how loose was the man-iage tie, or how 
 great the crimes of one of the parties. 
 
 L. LucuUus, 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 Clodins, 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 libertiuage, 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 Komans, 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 
 
GEEEKS, AND E0MAK9. 47 
 
 about a year, Kov was his daughter TuUia 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 youDger was married twice, and the sec- 
 ond wife was worthy of him, but the firsf, Atilia, 
 he divorced for adultery, after she had borne him 
 two children. To these specimens, drawn from 
 the families of the leading men at Eome, 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 flnd 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 thei 
 year 727 (b. c. 27), then in 736 (b. c. 18), by 
 several laws, among which the lex Jinlia de adul- 
 teriis et de pudicitia maybe mentioned, and fin- 
 ally in 762 (a. d. 9), by the lex Papia Poppcea. 
 Of these laws, so far as they related to divorce, 
 we shall say at present but a word, although they 
 
48 , DIVOECE AMONG THE HEBREWS, 
 
 form an epoch in the Koman legislation concern- 
 ing the family relations. Divorce was now sub- 
 jected to certain formalities, not being valid un- 
 less declared before seven grown-up Roman men 
 and a freedman of the divorcing party. The man 
 whose wife was caught in adultery or found guilty 
 of it was obliged to put her away, on penalty of 
 being held privy to the eiime, 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 miniitely a 
 principle already acted upon, that in suits con- 
 cerning dower after divorce the fault of the wife 
 subjected her to the husband's retention of a por- 
 tion of the dOwer. This in the practice of Roman 
 law seems to have been a most important matter, 
 but its details do not belong here. 
 
 Augustus, and even that frightful wretch Tibe- 
 rius, acted as legislators in the department of family 
 morals. Eut morals grew worse and worse. He 
 who is shocked by the developments of family life 
 iu the oration for Cluentius, or by such a charac- 
 ter as Aurelia OrestiUa, who, being reluctant to 
 marry Cataline on account of a grown-up son, 
 consummated the union when the son was made 
 
GEEEKS, AND EOMAJTS. 49 
 
 way with, — Be who is shocked by these earlier 
 acts of wickedness will be more shocked by what 
 Suetonius and that tragic historianTacitns 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 Eome rose to her greatness by severity of 
 family Hfe, so she fell into ruins by laxity just at 
 that point. 
 
 Eome 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 Bomans, Waohter's work on that 
 subject (Stuttgart, 1822), Eein's Privatrecht (Leipzig, 1836), 
 Bekker-Marquardn's Boman Antiquities, part t. (Leipzig, 
 1861), and Bosbaoh's Boman Marriage, deserve, among many 
 others, especial mention (1869). See also Marquardt (in his 
 and Mommsen's Handb. d. Bom. Alt.) in voL i. of his Prhat- 
 leben Aer Bomer (1879). 
 3 
 
50 DOCTEINE OF DITOEOE 
 
 CHAPTEK II. 
 
 DOCTBINB OF DIVORCE m THE NEW TESTAMENT. 
 
 Nothing places in a more striking light the 
 sway of Christ over the mind of the Christian 
 world than the fact that a few hints of his have 
 been enough to tnrn 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 
 aflfections. What he says on this subject is small in 
 compass, it is a moral rule, and not in form a law 
 for a state, it leaves more than one problem to be 
 solved ; yet it has to a great extent controlled Chris- 
 tian law in an important branch of private relations, 
 it has directed the discipline of the Church, it lias 
 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 liglit thrown upon them, 
 
52 DOCTEINE OF DIVOECfE 
 
 and appear to be fragments of tlie same diseonrse. 
 Without the place in Matthew we could jBnd 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., arid being 
 an essential part of that wonderful sermon, is seen 
 to have a connexion 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-. 
 iiizing 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 
 
 notreqiiire to be expressed. But we ought to notice 
 that St. Paul also, when he refers to owe Lord's 
 teaching, inserts no condition wliatever. 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 tbe meaning of 
 TTopveia 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 committeth adultery." !Now as by 
 Jeviish 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: " imto 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, Tii. 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 docteute of divorce 
 
 have begun to creep in among Hellenistic Jews : 
 at least the license of divorce allowed by the rulers 
 of the world conld 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 honse 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 ia 
 the house the disciples asked him again of this 
 matter," give proof of fresh clear recollection. 
 But is there, anything forced here in the supposition 
 that our Lord discoursed again to his disciples of 
 what he had said just before, so that there was no 
 need on the part of either evangelist to give an ac- 
 connt of the whole conversation. In Matthew the 
 disciples felt pei-plexed by what he had said, and 
 pnt 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 jiistifled, and his account of what was said 
 ill the house is 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 jtrst 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 BOt 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 more 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. I^or ' 
 are these verses touching divorce peculiar in this 
 respect. When he cites the lese 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. 
 
 ISTow it might happen, as it lias happened, that 
 some of these rules propounded by our Lord 
 would reform and transform legislation. Such 
 
56 
 
 DOCTEINE OF DIVOEOE 
 
 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 shape; 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 w€dge into the law, which 
 
IN THE NEW TESTAMENT. 57 
 
 Paul and others drove further, until all men saw that 
 the Jewish code was not obligatory on Christians. 
 
 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, he 
 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 ai'e 
 times, there is a state of feeling, a " hardness of 
 hearts," which stand in the way of perfect legi> 
 lal^on; 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 ii-om experience any judg- 
 ments concerning the human relations of which 
 he here speaks, whose vocation was too high for 
 the entanglements of family Hfe, — 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 bOCTRINE 01" DITOECE 
 
 with either of the two schools which then divided 
 opinion aniong the Jews on the subject 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, 
 a^ut 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 mmt;^^^Smse, and cum- 
 min. 
 
 Wliat 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 I., pages 15, IS. 
 
IN THE NEW TESTAMENT. 59- 
 
 Third, that the man who marries a woman, put 
 away for no crime of her own, commits adnltery. 
 This rule is contained in ch. v. of Matt., and in Luke, 
 but not in Mark, nor in some texts of Matt. xix. 
 
 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 cases of that description. This 
 caae is plain enough, but there are questions of 
 some importance and of some difficulty growing 
 
60 DOCTEINE OF DIVOECE 
 
 out of our Saviour's words which need to be 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 'Tree 
 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 is not making a code, but only a 
 special rule. He could not say that such a -guilty 
 cause of a divorce committed adultery by marry- 
 ing again, for she is now free from her husband. 
 But 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 old Jewish law with death. 
 To claim for an adulterer and an adulteress the 
 prcjtection of law in a Christian statfe, so that, when 
 free through their crime frona 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. 
 
 Anotlier question of importance relates to the 
 meaning of nopveia in tlie two passages of Matthew. 
 Is it synonymous with noixela or does it embrace 
 
m THE NEW TESTAMENT. 61 
 
 uncliaste 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 he named wlio 
 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 before marriage, especially if the 
 rule were applied alike to both sexes. 
 
 The word then relates to what has transpired 
 since marriage. We add that it must refer to 
 some outward act. It can not in its proper sense 
 
62 DOCTEINE OF DIVOECE 
 
 denote a mere quality, and, if ever used with a 
 breadth of meaning to embra,ce 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 -nogveia 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 fioixeca, and we are 
 wiUing to accede to their opinion.* 
 
 * Origeii seems to understand it thus, Tom. 14 of his comment, 
 on Matthew (iii. 322, 323, ed. Lommatsch). So Greg. Naz. says 
 (Or. 37), that Christ allows separation only from the ivdpvri, be- 
 cause she ToSevet TO ykvo^. Basil in his 2lst canon cited by Suicer, 
 voce iropvo; used that word in- the same way, and Balsamon re- 
 
IN THE NEW TESTAMENT. 63 
 
 ■ But whj sliOTild an exception like that in the 
 two passages of Matthew be made, if TroQvsta 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 Komans* 
 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 calls the adulterer a ir6pvo!. Euthymins 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, 
 Tholnck (Bergpred , ed. 3, p. 229), who himself adheres to the 
 sense which is here defended, and Alf ord in his note on Mat- 
 thew T. 32, may be consulted. Grimm defines it to be in the 
 New Testament a general expression denoting gucevis Ulidtm 
 veneri indulgens, sen gucestus, seu libidinis caitaa. In the Sept. 
 iropviia. and Moixci'a are parallel in Hosea ii. 2. Comp. Matth. 
 xix. 9. 
 
64 DOOTEINE OF DITOECE 
 
 lice magistrates.* This view of Jewish usage 
 gives a better explanation of Jer. iii. 8, than that 
 'which we gave in the jBrst 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- 
 trotlied 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 would be satisfied in his view, so far as he 
 was concerned, if he should abrogate 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 nopveia will they furnish 
 no ground for divorce ? All that needs to be said 
 here seems to be that death is the penalty for such 
 crimes by Jewish and many other laws, so that 
 the separation would be inevitable; that our 
 
 * Comp. Saalschiitz, chapters 4 and 5, on the judges and the 
 Shoterim. 
 
 f The notion at one time pretty common, that iiiauo^ here 
 means mild, dement, is now nearly exploded. The betrothed was 
 treated as a wife by the law. Deut. xdi. 24. 
 
IS THE NEW TESTAMENT. 65 
 
 Lord had no occasion to speak of gross crimes of 
 very rare occnrrence about whicli there could bo 
 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 
 ■nopveCa, the generic word, is here used instead 
 of the more specific fioixela. That reason can 
 hardly be the rhetorical one of avoiding the 
 repetition of the same word. ISTor can it well be 
 what Tholuek suggests, in his commentary on the 
 Sermon on the Mount, that the generic word gives 
 more indication of the moral category of the 
 ofiense. Still less is De Wette's solution satisfac- 
 tory — " that fioixB^'a is avoided because the verb 
 HOLxda-dai 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 Tholuek 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 
 
DO DOCTBINE OF DITOECE 
 
 point, is of strict interpretation, or else sneli as , 
 all, at the time when it was made, would admit 
 without its being mentioned. And this remark 
 brings ns to the passages in the two other Evange- 
 lists, and in Paul where no exceptional case is 
 stated. The reason for these unqualified state- 
 ments of the sacred wzdters 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 so great 
 a crime as adultery, which of itself actually caused 
 the married pair to be no longer one flesh, which 
 violated the idea of marriage. 
 
 There is .nothing in these passages, nor in our 
 Saviour's principle in regard to marriage, nor in. 
 other passages of the J^ew 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 
 woiild help the absolute iudissolubility 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 interpolatiofi. 
 of this, however, although the reading varies, there is no good 
 evidence. 
 
m THE NEW TESTAMENT. 67 
 
 adulterinis, althougli in his retractations* this nobly 
 honest man doubts whether he has cleared np 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 who heard our Lord 
 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 givfe 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. 
 
DO DOCTEINE OF DIVOECE 
 
 the husband separates the married pair to the 
 same extent, and involves permission of remar- 
 riage to the in-nocent 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 uttered 
 the words used by Mark (x. 12), " and if a woman 
 put away her husband," vsdth the qualification 
 found in Matthew, "saving for the cause of forni- 
 cation ?" l{nopvela could meaji any lewd conduct 
 inconsistent with being one fl.esh, 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 
 
m THE NirW TESTAMENT. 69 
 
 that "tliey 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 as Meyer on Mark x. 12, says : Mark's 
 omission of Matthew's /if) iirl iropveia made no real 
 difference, this reason for divorce being understood 
 of itself. Perhaps, also, the woman's right of di- 
 vorce may have crept in among the Jews, from 
 intercourse with Greece and Home (Comp. Jos., 
 Antiq., XV., 1, 10). 
 
 But may it not be said with Augustiu,* 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 hiin, 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 muta/ndis, 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 the beginning. 
 
TO DOOTEIKE OF DIVOECB 
 
 Therefore this separation must be on the ground 
 of adultery. But the party learning the other 
 must remain unmarried. Therefore the man or 
 woman separated from a guilty partner must re- 
 main unmarried. 
 
 The right 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 ;^t>^K7i?5, and 
 he says in efifeet, 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 (vii., 12 onw.), in which Paul 
 handles the subject of divorce. Two cases are 
 here noticed, one for which the Lord had given 
 
■ rtJ- THE NETV TESTAMENT. Tl 
 
 commandment, where both the parties were Chris- 
 tian believers, and another which liad not been 
 provided for bj the Saviour's aiithority, where one 
 of the parties was an unbeliever. In regard to 
 the first case, tlie 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 Rom. vii. 2, where, when it broadly said that 
 the wife is bound by the law to her husband as 
 long as he liveth, the Apostle puts out of sight 
 the husband's freedom of divorcing the wife which 
 the law itself concedes to him. 
 
 The commandment of Christ is limited, as we 
 conceive, by the Apostle to the case where both 
 partners in the marriage are believers, because 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 iniraction 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 DOCTEINE OF DiyOECE 
 
 in itself for partners of diverse faith, or even for 
 two heathen, as for two Oliristian 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 wliom 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 lierself, — which 
 seems to imply that instances of this kind had oc- 
 curred and were known to the Apostle, — let ber 
 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 Kal (v. 11) — as even to withdraw 
 from her husband and live apart, the choice between 
 
tS 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 woald be legalized, or it can include the 
 declaration of a purpose of divorce besides. We 
 question whether it means so much as this, al- 
 though it is used as the equivalent of a(phiiii.. For 
 the Apostle sajs, " 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," in- 
 volves her power of sooner or later contracting a 
 lejal marriage with another man. Eut whatever 
 may be thought of this, it is obvious that the 
 Apostle conceives of a state of things in which a 
 woman, separated from her husband, and, 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 Tnatrinionii. 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 
 
 4 
 
74 ■ DOCTUmE OF DIVOECE 
 
 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 hind 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. 75 
 
 are consecrated. "Without stopping to discuss the 
 Apostle's meaning here, it is enough if we say that 
 he draws a broad line between a family where 
 both parents are heathen and another where one 
 is a Christian. 
 
 But the heathen, whose husband or wife had 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 tliese words : " But if 
 the unbelieving depart let him depart." That is, 
 if he separates himself fr(jm his Christian partner 
 (or is in the act of separating liimself, as sime 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. 
 Tor it is wholly uncertain whether by living with 
 Bnch a partner, when he is bent on separation, 
 any such result will be attained.* 
 
 * The clause," but God has called us to peace, " is difEciilt. 
 We have given the antithesis, represented by (5£, as pointing to 
 
76 DOOTEUTE OF DIVOECE 
 
 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 donCj we 
 have unavoidably shown a certaLu 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 whicli Panl only hints at, for it seems to us to be 
 implied in the word xapH^eTai. The expression " iu 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 fif, and explains it, " so as to be in peace," which is really 
 admitting what he condemns. De Wette follows him. Harless 
 and Meyer give the solution adopted in our paraphrase : — " God 
 has called us in peace," i. e. God's call has come to us in the 
 ethical form of peace. The words, "for what kno west 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 Si instead of ri yap, and the words scarcely admit of 
 the version, " what do you know but that," or " how do you know 
 that you will not." For an attempt of Tboluck to defend this 
 way of understanding the interrogation, see his Bergpred. 
 fourth edition, p. 252. Billroth, - Riiokert, 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 iu this' 
 state of desertion. The case is like that mentioned in verse 27. 
 
IN THE NEW TESTAMENT. 77 
 
 16 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 ou SedooXurai, " 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 
 (Decret. Grat., ii. Caus. sxviii., Qu. 2, 0. 2, and Decretals, iv., 
 19, de divprtiis, Cap. 7), 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 
 
 DOOTEINE 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 oo de^ouXurai. 
 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 ; Eoiii. vii. 3). 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 
 00 6e6o6XcdTai does not deny the obligation to re- 
 main unmarried, as Grotiuis and others assert, but 
 the necessity of continuing the married state'; 
 and so he remarks that the place gives no express 
 answer to the question whether Paul concedes re- 
 
IN THE NEW TESTAMENT. 79 
 
 marriage to the Christian party. Stanley on the 
 passage remarks in the same strain, " that this is 
 not so much a permission of separation as an 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 
 ISTeander'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 tlie 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 ■ DOCTEINE OF DIVOECE 
 
 living together, — and in verses 10, 11, xopi^ecrdat 
 is so used that with it reconciliation is thought of 
 as stni possible." And in the greatly altered 4th 
 edition (p. 253)^ he expresses his opinion that " we 
 can not find in the ease 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- 
 mamage 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 iu the Apostle's mind. Tlie 
 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 s.imply this : " if the heathen is 
 bent on separation, let hiui take his course. You 
 are permitted to sufl'er this in order to preserve 
 
tCir THE NEW TESTAMENT. 81 
 
 your peace. Tou are not bound to stay with him 
 to secure his conversion, for this is an uncertain 
 thing." 
 
 Eut, it maybe asted, 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 — eith.er to remain un- 
 married or to be reconciled — had no existence in 
 the case of which the latter verse treats ; that 
 here, in fact, the believer is neither bound to 
 remain unmarried nor to be reconciled to the 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 DITOECE 
 
 morbidly conscientious lest by consenting to such 
 separation tbey 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 ;^;w/5i'f£Tat 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 somB delay ? 
 
 The view here presented brings the precepts of 
 
m THE NEW TESTAJUENT. 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 should 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 
 should 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 with De Wette that 
 -Christ, in the words " except on account of fornica- 
 tion," only give a sample of exceptions which he 
 held to be 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, in giving a 
 reason of general . application, he shows that his 
 rule is universal. 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 DOCTEINE 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 tlie 
 proper sense, but only as a kind of coniuiernium, 
 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 times 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 
 
nsr THE NEW TESTAMEHT. 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 np to the idea,l, 
 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 wiU be seen 
 also, that this opinion, not confining the Apostle's 
 words within the limits of marriages where one of 
 the parties was a heathen, but extending his prin- 
 ciple so as to include all cases of desertion, has open- 
 ed a wide door for divorce in Protestant countries.* .,_ 
 
 * For certain passages of the'New Testament having a pos- 
 sible bearing on divorce, see note 2, in the Appendix. 
 
86 LAW OF DIVOEOE IN THE EOMAN EMPIRE, 
 
 CHAPTEE III. 
 
 LAW OF DIVORCE IN THE EOMAN EMPIRE, AiTD IN 
 THE 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 Koman empire down 
 to the time of Justinian, and of Christian opin- 
 ion until it became the canonical laW of the Cath- 
 olic ChurcL 
 
 In the first chapter of the present essay we were 
 not able to do much more than to allude to the legis- 
 lation of Augustus, by which an effort was made to 
 check some of the leading social evils of Home, and 
 which remained on the whole, ever afterward, the 
 groundwork of Koman 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 IIT THE CHEISTIAN OHUECH. 87 
 
 keep mistresses than to be eneurabered mth the 
 expensive cares, and tried by tlie vexations of a 
 family ; and persons of the higher ranks preferred 
 in some instances to marry freed women rather 
 than the proud and costly descendants of the aris- 
 tocracy. Hence it was enacted in these Julian 
 laws that an unmarried man between t^venty 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 enr 
 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 maiTy freedwomen, pi ay- actresses, or 
 women of ambiguous character. Other men could 
 ally themselves to freedwomen, and, as we have 
 seen, when a patron contracted such a marriage. 
 
88 LAW OF DIVOBOE IN THE EOMAN EMPIEE, 
 
 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. Eestrictions 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, § 12, p. 460, ed. Duncker. He charges 
 Callistus, bishop of Rome, not only with ordaining men who had 
 been married twice or thrice, and with ti'eating 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, tbey did not wish to have 
 
AND IN THE CHEISTIAN CHDECH. S9 
 
 as being a legal relation, no loss of respectability, 
 and it was beld to be more seemly for the patron 
 to be united to bis freedwoman by tbis tie than by 
 tbat 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, and of the trial of con- 
 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 cliild by a slave or a low freeman. This CalUstus was bishop 
 in A. D. 217-221. Pree women of the better classes were re- 
 quired on entering into this condition of life to make a iestatio or 
 formal notice of their intentions, and were liable otherwise to the 
 penalties pertaining to stufprwm. 
 
90 LAW OF DIVOEOE IN THE EOMAN EMPIEE, 
 
 matrimonial rights, but under the empire, al- 
 though neither law nor opinion set up any stiong 
 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 on looking 
 over the register of cases that three thousand pro- 
 cesses 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, had stopped the prosecutions.f 
 
 The penalties for adultery :|: continued until the 
 
 * See Rein's Criminalrecht, 850-856. 
 
 f Dion Cass., 76, § 16. He was consul about 220 and in 229. 
 
 J 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 juK tori pertained to the husband. He could not 
 commit this crime against his wife. 
 
AND IN THE CHEISTIAN OHUECH. 91 
 
 time of the Christian emperors, mnch the same as 
 thej 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 DIVOECB IN THE ROMAN EMPIRE, 
 
 and the womaTi's imprisonment in the cloister was 
 perpetual. As for the offendixig man, he was "vis- 
 ited with death, but not with confiscation of goods, 
 if he had near relatives in the direct line.* 
 
 The legislation ot 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. For, in the first place, it was a maxim 
 of Roman law far down beyond the time when the 
 emperors became Christian, that no obstacle ought 
 to be put in the way of a dissolution of marriage 
 caused by the free consent of the partners, liberty 
 of marrying again being in this case equally 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 (^oetice vinculo 
 oistringi), 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 validit}-, 
 
 * See Rein, u. s., 848-852, and Novell., 134, § 10, which re- 
 news Constantine'a legislation. 
 
AlTD IN THE CHEISTIAK CHUECH. 93 
 
 {pacta ne liceret divertere rum valere).* In the 
 second place, the laws affected but a small part of 
 the population of Rome. Slaves could contract 
 no marriage. Concubinage became exceedingly 
 common, it is. probable, among the lower classes, 
 and to this condition the law of divorce did not 
 apply. The limited range of the law seems to be 
 shown by the fact that for the legal formalities the 
 presence of a freedman of the divorcing party was 
 necessary. It is true. that a freedman of a near 
 relative was held to be essentially a freedman of the 
 party giving tbe 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 
 
 * Paulus in Dig. ±\v., 1, 134; Cod. viii., 39, 1: 2, de inutiL stip. 
 
 f Tliese were adultery, — ^where a man was obliged on penalty to 
 dismiss his guilty wife ; — the case of a freedwoman married to her 
 patron who could not separate from him although he might from 
 her ; the captivity or insanity or certain bodily defects of one of 
 the parties. 
 
94 LA.W OF DIVORCE IN THE ROMAN EMPIEE, 
 
 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 t'me 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. Butwhatif 
 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 the 
 fifth by taking poison escaped a similar lot. IS^ero 
 and Domitian supply us with instances of divorce. 
 
AND nsr THE CHRISTIAN CHUECH. 95 
 
 Elagabalus got rid of his first wife because she 
 had a mole on her body, then, married a vestal 
 virgin — an nnlawM thing— and then after send- 
 ing away a third, foui-th, and fifth, returned to the 
 vestal. But the doings of the miserable Carinus 
 (about 28i A. D.), who married and divorced 
 nine wives— ^-m^sz's plerigqns praegnantihus, as 
 the historian Vopiscus writes — are not easily 
 matched, unless by the feats of those Roman ladies 
 of whom Juvenal sayp, (vi. 229) : 
 
 " Sic fiunt octo mariti 
 Quinque perauctumrioa; 
 
 or that other in Martial's epigram, (vi. 7) : 
 
 " Aut minus, aut certe dob plus tricesima lux est 
 Efc nubit deoimojam Thelesina viro." 
 
 Martial atones for many bad things by the words 
 which follow : 
 
 " Quae nubit toties, non nubit, adultera lege est." 
 
 Put 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 DIVOECE JS THE ROMAN EMPIEE, 
 
 heathenish, and with unhroken 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 beha,lf of the sanctity of mar- 
 riage throughout society, but we believe also that 
 it could not have given new life to Home, 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 ii'on 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 fur the woman, namely 
 when the man was a homicide, a poisoner, or a 
 violator of sepulchres ; 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 33Y the wife had permission 
 to put away her husband for the fourth reason 
 
AND IN THE CHRISTIAN CHUECH. 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 Homan 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. 
 StUl 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 Constan tine'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 mftrriage, 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 overtiimed 
 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 DIVOEOE IN THE ROMAN EMPIEK, 
 
 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 oM 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 Eoman law, which Julian 
 had recalled, of a one-sided separation for lighter 
 faulty, with retention of more or less of the dower. 
 Theodosiua II. in 439 abrogated earlier ordinances 
 — ^probably those of Honorius — and after ten 
 years of experiinent, 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 goyernmeut, 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 ClIEISTIAN CHUECH. 99 
 
 house, or of visiting the theatre, 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 tow 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 
 have been 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 fNovell. Ill, § 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, L 9. 
 
 It is remarkable that until tlie Novella 134 was issued in A. 0. 
 55S, there was no penalty attached to divorce ex communi am- 
 sensu. Now the penalty for both parties was, to be shut up in a 
 monastery and to lose their property. But if persons attempting 
 to separate from one another in this way recalled their act be- 
 
100 LAW OF DIVOEOE HT THE EOMAN EMPIRE, 
 
 again defined the justifiable causes of divorce, 
 which were nearly the sanje 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 tliis kind of divorces, another, 
 called divorce Ixma 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 sufRcieht, 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 te 
 corporally punished and sent into eiile.-^Justin, in NoTeL 140 
 (A. D. 566), restored divorce by common consent. 
 * See note 2 to chapter 3 in the Appendix; 
 
AND IN THE CHEISnAN CHTJECH. 101 
 
 1. That divorce ex communi consensu kept its 
 ground all the way down to Jnstinian, and was 
 attended with liberty of remarriage. 
 
 2. That divorce on acconnt 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 Eoman 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 for a long time 
 but little influence in changing the traditional prin- 
 ciples of Eoman 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 Koman law, and at length gained a 
 
102 LAW OF DITOECE IN THE EOMAN EMPIEE, 
 
 victory over them ? To nBderstand fully the state 
 of Christian opinion in this respect we ought to 
 trace the doctrine of the church on marriage in 
 general, from its beginnings derived from the 
 G-Ospel or some other source, until it grew into a 
 vast body of canonical law. But we have no room 
 for such an exposition. "We can only mention the 
 sources to which this doctrine is to be referred. 
 Of these there were two, a new conviction of the 
 sanctity and closeness of the marriage relation, 
 and a feeling that marriage, thoiigh 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 ISTew 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 Paul 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 chas- 
 
 r tity 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 CHETSTIAN CHUEOH. 103 
 
 tlie soul. This opinion was partly due to Gnostic 
 or ascetic doctrines tliat 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 Eevelations, 
 sdv. 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 TertuUian, 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 antem 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 caU 
 
104 LAW OF DIVOECE IN THE EOIIAIT EMPIRE, 
 
 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 ma,r- 
 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 lixed and indissoluble nature. 
 Even death was held by some, although never by 
 the prevalent opinion, to be no dissolution of the 
 bond. The original source of the doctrine was of 
 course the declarations in the gospel, which were 
 honestly and laboriously interpreted with a pretty 
 
 * Much as Jerome disparaged marriage, he freely admitted, as 
 did most others, that any number of successive marriages was 
 not unlawful. " Non damno bigamos, imo nee trigamos et,si did 
 potest,octagamos." Ad Pammach. Apologet o. Joviu. 
 
: AND m THE CHEISTIAlir CHUECH, 105 
 
 uniform result long before the doctrine of the 
 sacraments was developed. This doctrine did not 
 first teach the unlawfulness of dissolving the 
 marriage tie, but took that view from the 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. 
 Th9 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- 
 tion ad integrmn 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 mamage had not been a Christian 
 one, that is, had had no sacramental character, a 
 complete divorce might take efiect 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 LA"W OF DTVOEGE IN THE KOMAN EMPIEE, 
 
 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 pat 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 retfer 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.! 
 
 * The opinion of Innocent III. in the Decretals of Gregory IX., 
 §§ 7, 8, de divortiis iv. 19, may be consulted here in lieu of every 
 thing else. 
 
 f In the Greek church, marriage, between the orthodox and 
 
AKB m THE CHEISTIAir CHUECH. 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, 
 does the man sin if he lives 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 wUl be 
 guilty of her sin and partaker of her adultery. And 
 I said to him, What then if the woman shall 
 persist in her vice. And he said. Let the man put 
 her away, and stay by himself, [i. e. remain un- 
 
 heretics was forbidden and declared null, although in Russia 
 since ITIS 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-' 
 lies 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 ZIV. 
 (1 740-1 YSS), as well as in the western Prussian provinces since 
 PiusTm. (1829 onward), mixed marriages, celebrated not ac- 
 cording to the form prescribed by the OouncU of Trent, but in 
 one sanctioned by the law of the land, are regarded as real valid 
 unions. (Waller, Kirchenr., §§ 300, 318). 
 
108 LAW OF- DIVOECE IN THE EOMAN EMPrEE, 
 
 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, , 
 shall repent and wish to return to her husband, 
 shall she not be taken back by her husband ? And 
 he said to me, Yerily, 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 again. This conduct is 
 incumbent on both man and woman. ITor is there 
 adultery only, said he, if one pollutes his own 
 flesh, but he also who makes an idol 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 par- 
 taker of his sin. For this was the command given 
 to you to remain unmarried, whether man or 
 woman, for in things of this sort there can be 
 repentance." * 
 
 * In the Greek tezts, 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 Iiath sinned 
 and repented." - The words there is one repentance, etc., seem to 
 mean that only once and not more than once after baptism, a sin- 
 ner who has committed an act of open deliberate immorality can 
 be received back as a penitent into the church. To give a sin- 
 ning wife a motive for repentance and not to drive her to despair 
 — ^this is what Is meant by " on account of repentance a man ought 
 not to marry" another woman. The indulgence of Hermas in 
 
AND IN THE OHEISTIAIf OHUEOH. . 109 
 
 In this passage it is distinctly asserted that a 
 man who puts a,w.\y 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 whidi the fi.rst assertion is built 
 is, no doubt, the wordsof our Lord, as explained by 
 the Apostle in 1 Cor. vii., " let her remain un- 
 married, or be reconciled to her husband," and 
 Hermas conceived that the reconciliation there re- 
 ferred to was to follow a separation' on account of 
 the adultery of the liusband. 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 Scrip tui-e. He 
 may have been weak-minded, he may have mis- 
 understood Scripture, as we think that lie did; 
 but he represents an opinion that must have been 
 extensively held, and at length became the rul- 
 ing one, and . aU this long before the doctrine of 
 the sacramental character of marriage obtained 
 currency. 
 
 aUowJng that there could be any second "repentance," was ex- 
 ceedingly distasteful to Tertullian, after he became a Montanist. 
 Comp. his de pudidiia, §§ 10, 20, where he has the words "scrip- 
 tura Pastoris quae sola mcechos amat," and thinks that the author 
 ought to have learned the opposite from the Apostles, referring 
 to Hebrews vi. 4-6. 
 
110 LAW OF DIVOEOE IN THE EOMAIT EISlPIEE, 
 
 In the next three centuries many other witnesses 
 appear on the same side. Clemtent, of Alexandria, 
 says (Strom, ii.., 23, § IM), that Scripture "regards 
 marrying again to be adultery, if the other divorced' 
 partner is living ; " and again, a little after (§ 14:5), 
 " not only is he who puts away a woman the cause 
 to her of this (adultery), but he who receives her 
 also, as giving her opportimity 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 Kom. vii. 3.* That 
 TertuHian 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 adulterinis, to which we have already 
 refen-ed, 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 Lommalsch, vol. 3, 
 p. 320. For TertuUian, see de Monogam., §§ 9, 10. 
 
AND IN THE CHEISTIAN CHUEOH. Ill 
 
 erfillly, if inconclusively. His friend PoUentius 
 had maintained that in this passage she was to re- 
 main unmarried, qucB sine causa fomicationis dis- 
 cessii aviro, thus interpreting it correctly, as Chrys- 
 ostom did, of separation not amounting to formal 
 divorce for causes short of tlie husband's crime.* 
 Augustin maintains, as he had done many years 
 before in his exposition of Matthew, that they were 
 commanded to remain unmarried, qum a viris s^ois 
 ea causa recesserint, qum sola permissa est, id esty 
 fomicationis. PoUentius 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 Kom. 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 postmortem, itajpostfornicationem conjugis, 
 alteri copulari. lu this work Augustin comes 
 on ground where Hermas stood. Thus he says 
 to his friend, " what seems hard to you, that 
 one of the married pair should be reconciled 
 to the other after adultery, will not be hard 
 if faith is there. For why do we still regard 
 as adulterers those whom we believe to have 
 
 * Chiysost, Horn, xix., on 1 Cor. yii., where the causes of the 
 separation, which the distinguished interpreter conceives of, are 
 "continence, and other pretexts, and pettinesses," or compara- 
 tively trifling reasons. 
 
112 LAW OF DrVOECE IN THE EOMAN EMPIEE, 
 
 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, Oceanns, is deserving of 
 mention, as giving us the ease 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 
 nuhendi universa caussatio, viventihus viris, femi- 
 nis amputatur; &o while she avoided many wounds 
 from the devil, she incautiously received one 
 woimd." 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- 
 
 * Ubicumque est igitur fdmioatio et fornicationis suspicio libere 
 uxor diramittitur. Et quia poterat aocidere ut aliquis calumniam 
 faceret innooenti, et ob secundam copulam miptiarum veteri 
 crimen impingeret, sic priorem dimittere jubetur uxorem, ut 
 secuadam prima vivente, non haberet. Here, it would seem, if tjbe 
 crime was manifest and confessed, his objections against a 
 second marriage would be nugatory. 
 
A2ilD m THE CHRISTIAN CHUECH. 113 
 
 mit her necessity." This lay in her yoath, 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 : siodolebat quasi 
 adulterium commisisset. She abounded in good 
 works, and died, as Jerome thought, a most holy 
 woman.* 
 
 From this time onward the rule became more 
 and more established,, that remarriage after separa- 
 tion was unlawful in the Christian Chnrch, 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- 
 qnestioned.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- 
 rimonvmn, verum), but between the faithful mar- 
 riage is both true and fixed {verum et raturn), be- 
 (3ause 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. 
 
 •f Consult the decree of Gratian, Caus. xxrii., Quaest. vii, a 
 number of the Canons, "Walter's Earchenrecht, § 313, and the long 
 noteofCotelerius, Patr. ApostoL 2, 88 (ed. Amstelod., 1124). 
 
114 LAW OF DIVOECE IN THE EOMAN EMPIEE, 
 
 nothing essentially new was deduced from the sac- 
 ramental theory. 
 
 While in the Western Church 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 Home under the em- 
 perors. For a time even the principle of divorce 
 by consent of the parties, which Justinian had 
 abandoned, was again introduced. Kemarriage 
 was allowed soinewhat freely, and to this legislation 
 the practice in the church was aceommodated.f 
 
 If or ought it to be supposed that in the West- 
 ern 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 grotmd of adnlteiy ' 
 alone, was first introducedinto Italy [a. «., into state law] by Char- 
 lemagne and the Emperor Lothaire. " Gans, Brbrecht iii. , 180. 
 
 t Walter, u. s. , § 315. Comp. 6f eve, Ehescheid. p. 106 (1873). 
 
AND m THE CHEISTIAN CHUECH. 115 
 
 husband. Lactantias seems to have the same view- 
 where he expresses the Christian doctrine thus 
 (Inst, vi., § 23), " that he is an adulterer who 
 marries a woman put away by hei; husband, and 
 he who, except for the crime of adultery, puts 
 away his wife to marry another." So thought 
 also the friend of Augustin, Pollentins, 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 <^^c?(? 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 unqaestion- 
 able right of putting away an adulterous wife, 
 ought to be accounted an adtilterer for taking 
 another, that, as far as I can see, in this case any 
 person may make a pardonable mistake {veiiiali- 
 ter ibi qxdsque 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 Eichter, Kirchenr., § 2S2. 
 
116 LAW OF DIVOECB IN THE EOMAN EMPIEE, 
 
 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 m-ulier adultera' 
 est, qucB habet alium, maritus autew., etiavisi plu- 
 res habeat a crimine adulterii solutus est.'''' And 
 Augustin held to the parity of tl^e 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 Ver- 
 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, i., 8, ii., 8. 
 
 f In the decree of Gratian, 0au3. xxxi. Quaest. 1, a 6. 
 
AND m THE CHEISTTAN CHUEOH. 117 
 
 theij been long admitted without dissent for ages, 
 when it enacted the seventh banon on the sacra- 
 ment of marriage, of which we gave the leading 
 part in our last chapter.* (p. 67.) 
 
 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 to excite repentance in the guilty partner, 
 and after a probation to permit tlieir reunion. 
 The penance was a long one. In the time of 
 Pope Stephen V. (Cent. 9) the husband could 
 decide whether he would receive back a guilty 
 wife after she had undergone seven years of 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 tbe 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 OP DIVOEOE IN THE BOTVfAN EMPIEE, 
 
 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 Eomans or a,ny municipal law would. Its 
 
 •' * Oomp. Decret. Gratiau. Cans. xxziiL, Quaest. 2, c. 8, Caua. 
 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. xixiii., Quaest. 1, c. 
 19, 20. 
 
AKD rU THE CHEISTIAN CHtJECH. 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 mamage 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 trom this 
 
120 LAW OF DITOECE IN THE BO M AN EMPIEE, 
 
 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, tliat 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 bat of church practice, it could be 
 dispensed with or suspended. Thus Gregory the 
 
Am> IN THE OHEISTIAN CHUECH. 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 Eoman law allowed own 
 cousins to marry, but says, " experimento didici- 
 mus ex tali conjugio sobolem non posse succres- 
 cere." But the rule of the seventh degree hav- 
 ing been found inconvenient and not capable, 
 absque gram dispendio, of being observed, the 
 sound sense of the great Pope, Innocent HE., 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 copulas 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. 6. second and third cousins. See the passage in Gratian's 
 Decree, Caus. xxxv., Quaest. 5, o. 2. It is Alexander's ec^ct. 
 The genuineness of Gregory's letter has been, doubted. Compare 
 Eichter, Kirchenr. § 168. note 3. 
 
 f A reason alleged for this was that quatuor sunt humores in 
 corpore, qui consiani ex quatuor dementis. Decretal. Greg, iv., 14, 
 cap. 8. 
 
122 LAW OF DIVOKOH IN THE EOMAiT EMPIJBE, 
 
 enth degree. In the Greek Ciurct the blood 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 partji 
 with the relatives of the other, but the Counci' 
 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. 3. § 303-308, and Goschen m Herzog's 
 Eucyol. iii., p. 667 et seq. The leading canon's may be found in 
 the Decretals iv., 13 and 14, and in Sessio zziy., cap. 2-4 of the 
 Council of Trent. 
 
AHD IN THE CHEISTIAIf CHXJKCH. 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 prineipes et oi pvblicam causam. 
 Another declaration of the council in regard to 
 the extent of the dispensing power is worthy of 
 notice here. " If any one shall afBrm that only those 
 degrees of consanguinity and affinity, which are 
 expressed in Leviticus [xviii. 6, seq.] can prevent 
 the contracting of marriage or separate it when 
 contracted, or that the churoh 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 
 l)rother''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 EOMAN EMPIEE, 
 
 one of tlie 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 annuUatio 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 
 medieval periods of the Christian Church in the 
 following simple statements : 
 
 1. The prevailing and at length the unanimous 
 opinion in the church was that no crime of either 
 of the consorts, being baptized persons or Chris- 
 
 * Comt) especially Gosohen in Herzog, u. s., SOY-TCO. 
 
AND nr THE CHEISTIAN CHUECH. 125 
 
 tians, justified tte 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 man-ied 
 pair from their relation to one another, and as for- 
 giveness and reconciliation, being Christian duties, 
 could now be exercised, consorts separated on -ac- 
 coimt of adultery could come together again. For 
 a time rigid penance kept the offender from the 
 innocent party, and penance also was inflicted on 
 the innocent party who strove to renew intercourse 
 before the Church was satisfied. 
 
 5. In many cases where marriage was pro- 
 hibited by canonical law, a sentence of nullity left 
 them free to unite themselves to other persons.f 
 
 * Here we may remark that the material side iu marriage 
 has been held by Catholics to be the consent of the parties. 
 It has thus a civil side as well as a sacramental. Law can put 
 impediments in the way of marriage only by legislating iia 
 reference to the civil contract. 
 
 f Comp. Walter u. s., §§ 303-308, and Soschen in Herzog's 
 Encycl. , iii , p. 667 et seq. The leading canons may be found 
 in the Decretals, iv., 13 and 14, and in Sessio xxiv., of the 
 Council of Trent, deoret. de reform, matrim., Ch. 1 et seq. 
 
■126 DIVOECE AND DIVOECE LAW IN EUEOPE 
 
 CHAPTEE lY. 
 
 DIVORCE AND DIVORCE LAW IN EUROPE SINCE THE 
 REFORMATION. 
 
 The Catholic doctrine of marriage and divorce 
 was settled long before the Eeformation, and was 
 only reaffirmed by the Council of Trent. The 
 nations which retained their allegiance to the old 
 chui'ch did not, so far as we are informed, make in- 
 novations in the law of divorce, but have continued 
 untU now in the main under the system handed 
 down from the middle ages. Far different has been 
 the history of legislation in most Protestant coun- 
 tries, and in that Catholic land which broke away 
 at once from the old religion and from aU 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 EEFOEMATION. 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 CathoKe 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 DWOBCE LAW IN EUEOPE 
 
 citementto piety. 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 
 the Civil 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 restrained 
 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 theii 
 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, 
 
SmCE THE EEFOEMATION. 129 
 
 clear, plain text, which says that no one, either on 
 account of leprosy or stinking breath or other 
 defect, shall forsake his wife, or the wife her hus- 
 band, but only on account of whoredom and adul- 
 tery. I'or only these causes separate man and 
 wife. Yet it must be satisfactorily proved before 
 separation, as reason demands, that adultery and 
 whoredom have occurred." But in other places 
 Luther's opinion is most openly expressed that 
 mah'cious 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 lai-ge, , 
 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 15.35, signed by Luther, Cruciger, 
 Major, and Melancthon, allows a woman of I«I"ord- 
 hausen, whose husband had absconded several 
 years before, to marry again, according to " the 
 decision of Paul, and according to the former 
 
 6* 
 
130 DIVOECE AND DIVOECE LAW IN EUBOPE 
 
 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.f Again, in 
 his sermon " von ehelichen Leben'' 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 he, " we may find an ob- 
 stinate woman who stiffens her neck, and if her 
 husband should fall ten times into nnchastity, 
 cares nothing about it. Here it is time for a man 
 to say, ' if you won't, another can be found that 
 will. If the wife will not, let the maid come.' 
 Yet let it be so that the husband give her two or 
 three warnings beforehand, and let the matter 
 come before other people, so that her obstinacy 
 may be known and rebuked before the congrega- 
 tion. If she stiU will not, let her be gone, and 
 
 * P. 112. 
 
 f 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. 
 
SrSrCE THE EEFOEMATIOIT. 131 
 
 procure an Esther for yourself and let Vasliti be 
 off, as Ahasuerus did," — a queer example to give 
 to Christians. It is evident that here the refusal of 
 connubial duty is thought of, although malicious 
 desertion may be involved.* See Append., note 5. 
 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 in Walcli's ed. of Luther's 
 works, vol. X. See pages 797, 886, 884, 721-727. 
 
 f Examen Cone. Trid., ii. 430, of the Frankfort ed., 1615. We 
 do not find the passage here cited in Chrysostom's Homily ou this 
 chapter. 
 
132 DIVOEOE AND DIVOEOE LAW IN EtTEOPE 
 
 !N"or 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, inhis 
 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 EM, vol. iv., "written by Go- 
 Bchen, professor of law at Halle. 
 
 ■)■ CalTin, Epist., pp. 225, 226, of the Amsterdam ed. of hia 
 works, last volume. 
 
SINCE THE EEFOEMATION 133 
 
 being wiser tiian tbe heavenly master," and then 
 apeaks of the passage in 1 Corinthians in words 
 like these : " "When Paul mentions another canse, 
 — namely that the belieying 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 — he 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 off from a hatred of God, 
 and cannot return into favor but by denying God. 
 Whence it is not strange that hq 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, 154:1, 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 titeor- 
 dinancea were passed Nov. 20th following, and went into effect 
 Jan. 2d, 1542. 
 
134r DIVOKOE AOT) DIVOECE LAW IN EtTEOPE 
 
 debauelied, abandon his wife without the said 
 wife's having given occasion or being cidpable 
 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 bis opin- 
 ions concerning divorce. In his note, indeed, on 
 1 Cor. vii. 15, he says, "non hie conceditur divor- 
 
 * For this extract and for all other references to early Protest- 
 ant church ordinances on divorce, we are indebted to a programme 
 of Prof. Goschen of HaUe, " doctrina de matrlmonio ex ordina- 
 tionibus ecclesite evangelicse sseculi deoimi seiti adumbrata." 
 HaEe, 184'7. In his article, "Ehe" in Herzog's Encycl, the same 
 learned lawyer gives again some of the same matter. 
 
SmCE THE EEFOEMATION. 135 
 
 tinm, sed desertse tantum consulitur," whicli might 
 leave us in doubt how he explained Paul's words. 
 Bat in his treatise, de divoTtiis, 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 Tnensa 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 repvMis et divm-tiis, Op. ii. 94, 95, Genev., 1582, and 
 Epist. X., in vol. iii., 215. 
 f He seema to refer to his fheoloqice pr6blemaia,oi loci communes. 
 
136^' blVOECE AiTD DIVOECE LAW IS EUEOPE 
 
 when the parties are his disciples." Calixtns,: 
 " She is not bound to cohabit or to remain unmar- 
 ried." Milton's views are jvell 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 cuiTent Protestant interpreta- 
 tion.* (comp. pp. 79. 80). 
 
 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, Cwr(S pMlblog. on the passage in Corinthians, 
 where they are spoken of at large. 
 
SmOB THE EEFOEMATIOW. 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 Netherlanders 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 Greneva, already 
 mentioned (1541), Calenburg-Gottingen (1542), 
 Brunswick-Liineberg (1543), Brandenburg (1573), 
 Mecklenburg (1570), Brunswick-Grubenhagea 
 (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, aa we suppose, the church of the English, which had 
 its difficulties in that year. 
 
138 DrvoECE Airo divoece law ict eueope 
 
 and the innocent party will not or cannot at all in 
 the end become reconciled to him, in snch case 
 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, Yalentinian, 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 
 t6 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 sufi&cient 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 
 /.hereupon be divorced, and the guilty party be re- 
 oritted from the matrimonial to the secular court. 
 
 The q^uestion was discussed among the reform- 
 ers whether the adulterous party ought to be 
 
 '" vll these instances are from Prof. Goschea's programme. 
 
SINCE THE EEFOEMATION. 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 (Waloh, 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 ho 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 wom- 
 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. zix. 9, Calvin expresses the same opinion in 
 regard to the deserts of the adulterous wife or husband, and 
 the " perverse indulgence of magistrates. " 
 
14:0 DIVOECB AND DITOECE LAW IN EUROPE 
 
 but the Wirtemterg 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. Thomasius (ob. 1728), a profes- 
 sor of law at Halle, an audacious but superticial 
 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- 
 inent, 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, soe Tholuok's Article on him in Hcrzog's 
 Encyclop., vol. xvi., and his " Preliminary History of Rationalism," 
 ii., 2, 61-16. 
 
SmOE THE EEFOEMATIOISr. 141 
 
 their expression first in tlie legislation of Prussia.* 
 In 1749, 1751, part of a project of a general code 
 for the Prussian states was published by Oocceii, 
 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, aa when blows are 
 given by one of them, or one has an infamous 
 disease, or one 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 (sasvitia) 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 
 
 * Eor the legislation anterior to the introduction of the Prussian 
 Code or "AttgeTneines LandrecM," we rely on an Essay by Savigny, 
 entitled "Reform of the Laws concerning Divorce," in hisMiscell 
 Works (Termisoht. Sohrift), v. 222-414. 
 
142 DIVOECE AKD DITOEOB LAW IN EUROPE 
 
 divorce. One of the provinces, a little after, did 
 away witli this probation in the case of " deadly 
 enmitj'-," 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 eases 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 BEFOEMATION. 143 
 
 one of the parties. The proofs of hatred as they 
 appear in former laws are now raade 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 (676-693.) Persistent 
 refusal of marriage-intercourse is regarded as 
 equivalent to malicious desertion (694-695). 
 Plots or practices, endangering the life or health 
 of the other party, together with gross injury to 
 the honor or personal freedom of the same, are 
 sufficient grounds for divorce. But persons of 
 lower condition shall not have divorce granted to 
 
 *PreTis3. Landrecht, 11. , part I., chiefly §§ 668-834. In 
 1844 a procedure, making divorce more difficult, was adopted. 
 
144: DIVOECE AJSTD DIVOEOE LAW IN E0EOPE 
 
 them on account of threats or abuse with the 
 tongue, nor for injurious acts and outrages, unless 
 these are causeless and malicioasly repeated. In- 
 compatibility of temper (unvertraglichkeit) and 
 quarrelsomeness are good grounds only when the 
 innocent party's life and health are endangered 
 (699-703). Grross 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 dan- 
 ger of losing life, honor, office, or business (704-T06), 
 or has a base employment (707) [since abrogated]. 
 Drunkenness, extravagance, or a loose manner of 
 life (unordentliche wirthscliatt) may be followed 
 by divorce, if not corrected by steps which tlie 
 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 iu his conduct (711-713). In all cases 
 the judge must take pains to restore a good imder- 
 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 defeicts 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). 
 
BUSrCE THE EEFOEMATION. 145 
 
 I'he 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.) Wliere the reasons alleged for divorce are 
 of less weight, and hope of reconciliation exists, 
 the judge can delay making known his sentence 
 for a year, pending which time the parties may 
 live separated, and the judge must decree in 
 regard to questions of property and children. At 
 the end of the term a new attempt at 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 estopp'al to suits ai-ising out of 
 the crime forgiven. Cohabitation for a year after 
 knowledge of the crime implies condonation. 
 
 Ho separation from be'd and board is allowed if 
 1 
 
146 DrVOECE AND DIVOECE LAW IS EtJEOPE 
 
 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 intei-course 
 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 EEFOEMATION. 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 tliis 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 or is prin- 
 cipally so, and provisions are necessary, according 
 as the property was held separately or in common. 
 In the first case, where neither party is pronounced 
 ■guilty, and the goods were not held in common, 
 they follow the rules prescribed for separation by 
 death. If there was a community of goods, each 
 takes the part contributed by him or her to the 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 
 ■ ease, 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- 
 
14:8 DITOECE AND DITOECE LAW IN ETTEOPE 
 
 ered civilly dead, and all tte 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, £s in most other Christian 
 countries, requires certain religious formalities in 
 order to be vahd. 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 
 
SINOB THE EEFOEMATION ■ 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 civil marriage. (1869.) 
 
 It is natural that the complaints against the 
 Prussian law should be great. Not only has it 
 dissatisfied numbers of the clergy, but some also 
 of the most eminent jurists have desired to see 
 it modified. Savigny (u. s. 353-414) gives us 
 two such documents, containing projects of new 
 divorce laws framed by two 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 conrt. Besides 
 these, the first commission of 18i2 eliminates mad- 
 
150 DIVOECE Airo DIVOKOE LAW IN EDEOPE 
 
 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, 
 oflSce, or business hj 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 were ineffect- 
 ual, nor have others since made, unless we aro 
 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, I 
 believe, coniine divorce to cases of guilt, -although 
 they generally go, in their enumeration of the 
 wrongdoings which furnish ground for divorce, 
 beyond the laws of the age of the reformers. 
 
 Prom Prussia we turn to France, where the ex- 
 periments in divorce legislation coincide nearly with 
 the phases of political revolution. Tlie old system, 
 conformable to the ecclesiastical law of divorce, 
 was overthrown by a new divorce law passed 
 
SINCE THE EEFOEMATIOK. 161 
 
 Sept. 30, 1792, at the opening of the l^ational 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 Ko- 
 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 DIVOECE LAW IK 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 councili 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 througli 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 
 piiblic 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 
 
SUfTCE THE EEFOEMATIOIT. • 153 
 
 disputed point. If tlie specific ground were any 
 other, as derangement, profligacy, desertion, injury 
 of the consort, the demandant had first to bring 
 his case before family arbitrators " in the form 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 ISTivose, An 2 — 
 Sat., Dec. 28, 1793— and on the 4th of Tloreal 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 cominon fame only, should 
 7* 
 
154 DIVOECE AND DIVOECE LAW IN EUEOPE 
 
 b(3 canse 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 ol 
 dx 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 iu the interval would render 
 such delay unnecessary. Finally, divorces eifect- 
 ed and antlienticated 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 revolntion. A reaction showed 
 itself in the autumn of 1794, and these two last 
 laws were suspended on the 15thof Thermidor, An 
 3, — Sunday, Aug. 2, 1795. The representative 
 Mailhe, who moved the suspension, remarked that 
 by these laws violent 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 THE EEFOEMATIOK.. 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 E"iv6se 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 sense here. 
 
 f The laws nieutioned above may be found in the "r^impres- 
 sion de I'aneien Moniteur," generally a few pages after the date of 
 their enactment. The remarks of Mailhe we have extracted from 
 the same journal See Tol. 19, 69 ; 20, 297 ; 25, 403. 
 
156 DITOECE AND DIVORCE LAW IN EUROPE. 
 
 France before tlie 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 Oode Civil. These discussions 
 are of high interest, as indicating a reaction from 
 the views of the revolution concei'ning 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. 
 
SIJiiCE THE EEFOEMATION. 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 "rfe 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. Tlie 
 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 indetermiuate 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'od ihat the malig- 
 
158 DIVOECE AND DITOECE 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, "yon dishonor me by concealing"' 
 the true cause of the divorce ; yon 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. 
 YI., Art. 229-311), the Causes of divorce are the 
 
SINCE THE EEFOE5IATIO]5r. . 159 
 
 following : 1. for tie Imsband, the wife's adultery ; 
 h. 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 iufamante). 5. "I.'he 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 
 a.ssigning 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 tlie part of the husband no cause for 
 the separation of the parties. Under I^o. 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 . DIVOKCE AND DIVOECE LAW IK EUROPE 
 
 determinate cause can give rise ; and of the pleaa 
 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. (No. 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 hey 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 EEFOEMATION. 161 
 
 vorce are alleged, to quit ier husband's domicil 
 for another indicated by the judge, and to receive 
 alimony proportionate to his means, until the case 
 is settled. 
 
 Some of the provisions of the chapter on divorce 
 by mutual consent are worthy of note, as showing 
 the anxiety of the redactors of tlie 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.* Tbeh the parties are required to reduce 
 to writing their proposed arrangements in regard 
 to alimony and the guardianship of the children, 
 and to present themselves before the judicial officer 
 of their arrondissement together and in person, in 
 order to make before two notaries a declaration of 
 their will. After the judge shall have made to 
 them such representations and exhortations as he 
 shall think fit, and shall have read the fourth chap- 
 ter of the law relating to the efi«cts of divorce, if 
 f' 
 
 * That- is, if no father and mother could gire their consent, 
 a grandfather and grandmother might do it, or if they, being 
 of the same line, disagree, the grandfather's consent ia enough. 
 Code Civ. §§ 145-150. 
 
162 DIYOKCE AND DrfOECE LAW IN ECEOPE 
 
 they persist in their resolution, tliej are required 
 to produce before him an inventory of their goods, 
 their arrangements already spoken of, certificates 
 of their birth and marriage, of the birth and death 
 of all the children born of their union, and of the 
 consent of the proper relative in the ascendingline 
 to their divorce. A proces-verbal is to be drawn 
 up, into which all these acts are introduced, witb 
 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 liim 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 jpermet" and shall refer the mat- 
 ter to " the tribunal." If the tribunal is of opinion 
 
SINOE THE EErOEMA.TIO]Sr. 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 stUl, 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- 
 nisohe Gesetzbuoh, a code founded on the Code Civil, we believe, 
 and controlling a part of the Rhenish provinces of Prussia. That 
 divorce by mutual consent ia there unfrequent is shown by the 
 fact which Savigny mentions, that in thirty-six years only seven- 
 teen such divorces toolc place in a population of more than two 
 millions, of whom about a fifth belonged to the Evangehcal 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 talien into consideration in explaining this fact, and to this 
 Savigny does not advert. 
 
164 DIVOECE AND.DIVOECE LAW IN EPEOPE 
 
 marry his or her accomplice ; and that the woman, 
 if an adulteress, shall be shut up in a house of 
 correction for not less than three months, nor more 
 than two years. "WTien 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 th'eir 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 nmtual consent, the party against 
 whom the divorce has been obtained shall lose all 
 advantages conceded by the other consort, whether 
 by contract of inarriage, 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 tlie other 
 party, whether originally reciprocal or not. Power, 
 a'so, is given to the courts to grant to such innocent 
 party, if not abeady having the means of support, 
 an alimony irom the revenues of the other party, 
 not exceeding a third part of them, and revocable 
 when no longer needed. Of the arrangements 
 in relation to the children, we omit to speak. 
 
 The last chapter of this divorce law relates to 
 separation, " de corps,^'' or a mensa et toro. This 
 
SmCE THE EErOEMATION. 165 
 
 cannot originate in mntual 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 DIVOECE AND DIVOECE LAW IN ETJEOPE 
 
 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 irom 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 in March, 1816, 
 a historian of the I'estoration, Louis de Yiel-Castel, 
 thiis speaks (Hist, de la Kestauration, iv., 486) : 
 
 " The only proposition which did not meet with 
 
SINCE THE EEFOEMATION. 167 
 
 serious opposition was tliat wMch 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 
 tlien to the government, and by it reduced to the 
 project of a law, it was deiinitively sanctioned by 
 the two chambers. The majority in the Cham- 
 ber of Deputies was two hundred and twenty-five 
 
168 DIVOECE AND DIVORCE LAW IN EUEOPE 
 
 against eleven. In the hnrry of accomplishing 
 what was regarded as a work of moral reparation, 
 time enongh was not taken for regulating all the 
 difficulties to which separation suhstituted for 
 divorce would give rise." 
 
 In 1831 an attempt was made without success 
 to alter the law of divorce. Of this A. L, Yon Ko- 
 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." The attempt was re- 
 newed in 1832, and. was defeated hoth then and 
 twice again in the next years. Nor did another 
 movement to abolish the statute of 1816, made 
 in 1848, fare any better. M. ISTaquet brought for- 
 ward a similar project of a law in 1876 (see his 
 work " Le Divorce," page 56, and Appendix). 
 
 Divorce in England has a brief record. 
 
 In the times when England, was under the 
 Eoman Church, the ecclesiastical courts had cog- 
 nizance of marriage and its dissolution. ISTo 
 separations except a mensa et toro were known. 
 
SINCE THE EEFOEMATION. 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 YIII. 
 with Home, and the subsequent progress oftheEef- 
 ormation, made no change in the law of marriage 
 and in the courts to which its execution was con- 
 fided. Oatliarine of Aragon was set aside by sen- 
 tence of an ecclesiastical court, because her relation 
 of sister-in-law to tbe king was claim.ed to have 
 rendered their marriage null ah initio. Anne or 
 Cleves was put awaj 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 VIH., 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 Eeformation 
 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 
 * Burnetts 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 tlie fathers. A 
 number of questions -were put to learned men, and their answers 
 are given in the collections, No. 20, in the same volume. 
 
lYO DIVOEOE AND DITOECE LAW m ETJEOPE 
 
 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 ecclefdasticarum, 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 
 
 * ITot having access either to the original edition of this code 
 of canon law published in 15Y1, 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. Hist., i., p. 140) affirms that Lingard turns capi- 
 tales inimiciiim 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 estata 
 
SESrOE THE EEFOKMATION. 171 
 
 the laws both then and afterward. Meanwhile, 
 !Ef orthampton, having actually taken a second wife, 
 was at first parted Irom her, then was allowed by 
 sentence of a court to live with her, and finally had 
 his union legalized by act of Parliament. From 
 this time on, we believe, the received doctrine was 
 that a sentence of an ecclesiastical court could only 
 separate irom 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 snch 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 ro3-al 
 authority, one of which provided that no persons 
 separated a toro et mensa should, during tlieir 
 joint lives, contract matrimony with other per- 
 sons, and that the parties requiring the sentence 
 
 Ha]lam thinks that it was laid aside because public feeling was 
 against it. ' 
 
1Y2 DrVOECE AKD DIVOECE LAW IN EUEOPB 
 
 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 Kicb, 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 Eich. Then, by an amicable ar- 
 rangement between the parties, an ecclesiastical 
 court separated her from her husband, and she 
 immediately married her paramour. "William 
 Laud, then the Earl's chaplain, solemnized the 
 marriage. Laud must have done this against his 
 own convictions of duty, and he kept the day as 
 a time of fasting afterward-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 Eomance of the Peerage," by Prof. Craik, vol. i., 
 Appendix, which rectifies soTeral mistakes on this matter, and 
 from -which we have drawn freely. For the case of Lady Eioh 
 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. 
 
BINOB THE EEFOEMATION, 173 
 
 the case. The Duke of Iforfolk, without aay 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 Eoss 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 ill 1666, 
 were not dispatched until f om* years afterward.* 
 Bishop Cosin seems to have aided the passage of 
 this act by speeches in the House of Lords, the 
 substance of which is given in the State Trials.f 
 
 It may be added that the House of Lords, in 
 trials before it, has not necessarily respected the 
 decisions of the ecclesiastical coUrt. Jn. 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 
 
 * Comp. Evelyn's Diary, under March 23, 1670. 
 
 f Vol. xiii , pp. 1332-1338, where the proceedings in the Dnke 
 of Norfolk's case are given on his last attempt to get an act 
 for his divorce. The proceedings in 1692 are f ouiid in vol. xii, 
 
174 DIVOECB AOT) DIVOECB LAW IN EUROPE 
 
 of marriage, had long before restrained Augustus 
 John Hervej, afterward Earl of Bristol, from giv- 
 ing himself 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 Vict, cap. 85, and was 
 amended, but not essentially, in 1858 and 1860 
 (21 and 22 Vict, cap. 108, and 23 and 24 Vict,, 
 cap. 144). We have these laws before us, and 
 their leading provisions in regard to divorce are as 
 follows: - 
 
 1. All jurisdiction of ecclesiastical courts in 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 
 Eoss got such an act, before he obtained the other dissolving his 
 marriage.— Ibid 
 
SnrCE THE EEFOEMATIOIT. 175 
 
 Judge of the Probate Court, called Judge Ordinary 
 of the Court of Divorce. Three or more of these 
 judges, of whom the Probate Judge is to be oue, shall 
 hear and determine all petitions for the dissolution of 
 marriage, and applications for new trials of ques- 
 tions or issues before 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 upwards. 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 obtaiued 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 Tnensa 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 BIVOBOE AlTD DITOEOE LAW IN EUEOPE 
 
 to come before the court on petition of the inno- 
 cent party, with statement of facts ; the alleged 
 adulterer is to be a co-respondent to the petition, 
 if presented by the hnsband, 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. 
 
 . 4r. The court being satisfied of the facts, and that 
 there has been no eondona,tion, collusion, or con- 
 nivance at the crime on the part of the petitioner, 
 and no collusion with a respondent, shall decree a 
 dissolution unless it finds the petitioner to have 
 been guilty of adultery during the marriage, or of 
 xmreasonable delay in presenting the petition, or 
 of cruelty, or of desertion before the adultery, or 
 of misconduct conducing to such crime. The de- 
 cree was not to become absolute imtil after three— 
 subsequently xm til after six months. 
 
 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 house make a short extension of 
 the term for the final appeal necessary. When no 
 
 could not lawfully contract toarriage, 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 EEFOEMATION, 177 
 
 appeal is made within the prescribed term, or, if 
 made, effects no change in the original decree, 
 the parties may maiTy 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 the 
 marriage. 
 
 This law it will be observed, grants separation 
 for a small number of specific acts, and dissolution 
 of marriage for all adultery of the wife, but only 
 for adultery attended with aggravating circum- 
 stances on the part of the husband. In cases of 
 
 8* 
 
178 DIVOECE AISTD DIVOECE LAW DT BTIEOPE 
 
 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 marry again 
 at once, and the guilty one to marry his or her 
 paramour, putting a premium thus on adultery, 
 unless the injured party is determined not to sue 
 for a divorce. In allowing the court to settle, a 
 guilty wife's property on her husband or children, 
 it approaches a principle of the Roman law con- 
 cerning dower. But it falls below the Roman law 
 id 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 theiri as unlawful. On the whole, 
 with serious defects, it seems to us to be 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 ! * 
 
 We annex here brief statements of the laws of 
 divorce, as they stand at present in the principal 
 
 * For the laws bearing on marriage now in force, see George 
 Browne's 'La* and Practice of Divorce, etc.,' ed. 4, Appen- 
 dix 1, and Ernst Browning, ' An Exposition of the Laws of 
 Marriage and Divorce, as Administered in the Court for Di- 
 vorce and Matrimonial Causes, with the Method of Procediire 
 in each Suit.' London, 1873. 
 
SmOE TH3E EEFOEMATION. 1Y9 
 
 countries of Europe. "With some of tliem we unite 
 brief tables of divorces 02' separations. At the end 
 more extensive tables are given showing the state 
 of divorce in recent times. 
 
 Divorce for adultery of either husband or wife, 
 and for malicious desertion, are granted by Scottish 
 courts, the first being introduced without statute, 
 the other by a statute of 16Y3. Judicial separa- 
 tion or separation a mensa et toro, may be granted 
 for cruelty and adultery. A divorced person 
 could not marry her paramour, if named in the de- 
 cree of the court. The conjugal rights amendment 
 act of 1861 contained provisions like those of the 
 law of 1857 in England, for which see Encycl. 
 Brit., vol. vii.. Art. Divorce. 
 
 Divorce can be obtained in Holland on account 
 of adultery, malicious desertion, and the causes 
 allowed in the old title six of the French Code 
 Civil. But sevices or cruelty, in order to be a 
 cause of divorce, must be such in degree as to in- 
 volve danger of life or cause dangerous wounds. 
 
 Also absence of one of the consorts for ten years 
 and them arriage of the other ; as well as an un- 
 opposed demand, five years after a decree of separa- 
 tion has been pronounced, can be followed by full 
 dissolution of marriage. 
 
 Causes of divorce in Denmark are adultery, 
 ante-nuptial impotence or contagious disease, de- 
 sertion for three years with the avowed pui-pose of 
 not returning, or for seven years with satisfactory 
 
180 DIVOECE AND DIVOECE LAW IN ETJEOPB 
 
 proof of intended permanent absence. Condemna- 
 tion for an infamous crime can be followed in 
 three years by divorce, and in seven when the 
 crime is not infamous. 
 
 The Government can, through the minister of 
 justice, gi-ant divorce for intolerable cruelty and 
 for insanity ; and can sanction separations by mutual 
 consent. These are said to be quite numerous. 
 
 In Norway the causes for divorce are nearly the 
 same as in Denmark. The king can authorize di- 
 vorce in the case of the parties' mutual consent. 
 Separation for three years, allowed by the civil 
 authorities, may be turned into divorce after the 
 end of that term, by authority from the king. 
 Each of the parties thus divorced needs a special 
 leave to remarry. 
 
 In Sweden, ante-nuptial lewdness, or impotence 
 or contagious disease vitiates marriage. Divorce 
 can be had for adultery or for desertion, but recon- 
 ciliation or equal guilt prevents divorce for the first 
 cause, and certain rights of the culpable party to 
 property are taken away. The party guilty of adul- 
 tery cannot marry unless the innocent one has 
 married or gives consent. As for desertion, the 
 injured party summons back the culpable party, and 
 can obtain divorce at the end of a year, in case he 
 or she does not return. Even a person absent in 
 the discharge of public functions can be thus dealt 
 with, if the absence is unreasonably long, imless 
 the wife's dissolute life can be pleaded in excuse. 
 
SINCE THE EEFOEMATION. 181 
 
 Divorces are few in Sweden. In 1846-49, 
 among a population of over 4,000,000 (there were 
 4,341,549 in 18Y4), the divorces were in 1846, 115 ; 
 1847, 121; 1848, 99; 1849, 127; while in the 
 kingdom of Saxony there were in the same years, 
 398, 435, 384, 363, in a population of 2,500,000, 
 or 115 per annum in Sweden, and 377 in Saxony.* 
 
 In 1862, when the tribunals of the Swiss Confed- 
 eration began to take cognizance of divorce instead 
 of the cantons, it was made a law that a Catholic 
 cotdd procure divorce only by changing his religion. 
 In 1874 the federal law of divorce assigned the ini- 
 tial steps in the process to the tribunal of the can- 
 ton which was the husband's domicU, the federal 
 tribunal being the court of appeal. The following 
 were the principles of the new law of that year, 
 which took effect in 1876 : 
 
 1. If the married parties both demanded divorce, 
 it could be granted in case the court found that a 
 common life was incompatible with the natiu-e of 
 marriage. 
 
 2. If only one of them demanded it, it could be 
 granted for adultery, cruelty (" sevices et injures, at- 
 tentat a la vie "), condenmation to an infamous pun- 
 ishment, malicious desertion, and incurable mental 
 malady. 
 
 3. Apart from these causes for divorce, the 
 court can pronounce a decree of separation de corps, 
 if the marriage tie is j>rofondement atteint. This 
 separation can be pronounced for not more than two 
 
 * V. Oettangen : Moralstatistik, p. 140. 
 
182 DrVOECE AND DITOECE LAW IN EHEOPE 
 
 years ; but if after this time there is no reconcilia- 
 tion, the petition for divorce can be renewed, and 
 the court may grant it according to its discretion. 
 
 4. In divorce for determinate grounds the cul- 
 pable party cannot marry untU a year after the 
 decree is past. The court can extend the delay to 
 three years. 
 
 5. Marriages nowimlawful on account of the age 
 of the parties (eighteen for the man, sixteen for the 
 woman), or where one at least had not reached the 
 marriageable year, can be declared null under cer- 
 tain circumstances, by a parent or guardian. 
 
 6. Separations, for a time or without limit, de- 
 creed before the existing law, can be converted into 
 full divorces, if the causes for which they were 
 granted would, by the new law, authorize divorce. 
 
 The number of divorces granted in .1877 was 
 1,102; in 1878, 1,036; in 1879, 938. In the last 
 of these years the petitions or demands for divorce 
 were 1,185, of which 115 were denied, 132 had tem- 
 porary separations accorded to them, and 938 were 
 granted in fuU. 
 
 Of these cases 695 pertained to persons both of 
 whom were Protestants, 86 to Catholics, 48 to mixed 
 marriages, where the husband was a Protestant, 
 and 36 to those where the husband was a Catholic. 
 
 This sum total makes the ratio of divorces to 
 marriages 4.82 to 100, or 1 to 20, while in Saxony 
 the mean number is 1 to 31. 
 
 In 1879 there were 343 remarriages of men and 
 
BmCE THE EEFOEMATIOET. 183 
 
 347 of women who Had been divorced, of whom 
 85 men and 68 women were remarried within a 
 year after the dissolution of the first marriage.* 
 
 In Austria the law accommodates itself to the 
 various forms of faith in the empire. For Catholics 
 marriage is indissoluble; but separations may be 
 accorded for certain causes, or by the mutual con- 
 sent of the parties. For non-CathoHcs and persons 
 professing no faith divorce can be granted on the 
 ground of adultery, five years' imprisonment for 
 crime, desertion and absence in the legal sense, 
 plots endangering life or health, repeated mal- 
 treatment, and insm-mountable aversion on both 
 sides. In this last case delays may intervene, as the 
 circumstances may seem to demand. For Jews, adul- 
 tery of the woman and mutual consent, with special 
 formalities drawn from Jewish law. In mixed 
 marriages the law for each party is applied. Thus, 
 a Catholic husband can obtain on his complaint a 
 sepa/ration from his wife ; and she, being a Protes- 
 tant, can obtain a dvoorce on the ground of the judg- 
 ment given in his favor. 
 
 Belgium, although a Catholic country, grants di- 
 vorces dissolving marriages and separation de corps. 
 It was separated from France in 1815, and, says 
 M. JSTaquet, " the title sue of our old civil code con- 
 tinues in force, just as it would have force here, l£ 
 the restoration had not taken place," with no im- 
 portant changes. [N'aquet gives the annexed table : 
 * Journal du FiotestautUme Fianjais, Februaiy 19, 1881. 
 
184 DIVOEOE AHD DIVOECE LAW IN ETJEOPE 
 
 
 
 
 Separa- 
 
 Ratios of 
 
 Ratios oj 
 
 Tews. 
 
 MalTioges. 
 
 Divorces. 
 
 divorces to 
 
 separations to 
 
 
 
 
 
 marriages. 
 
 marriages. 
 
 1840... 
 
 30,551 
 
 38 
 
 25 
 
 1:1,093 
 
 1:1,223 
 
 1841-50 
 
 28,967 av. 
 
 28.1 av. 
 
 22.3 av. 
 
 l:l,03lav. 
 
 1:1,205 av. 
 
 1851-60 
 
 33,486 av. 
 
 38.6 av. 
 
 43.6 av. 
 
 1:867 av. 
 
 1 :768 av. 
 
 1861-70 
 
 36,309 av. 
 
 46.1 av. 
 
 59 
 
 1:787 av. 
 
 1:608 
 
 1871... 
 
 37,538 
 
 75 
 
 44 
 
 1:501 
 
 1:853 
 
 1873... 
 
 40,084 
 
 113 
 
 49 
 
 1:354 
 
 1:838 
 
 1873... 
 
 40,598 
 
 125 
 
 58 
 
 1:353 
 
 1:699 
 
 1874. , . 
 
 40,328 
 
 144 
 
 57 
 
 1:373 
 
 1:707 
 
 WMle the ratio of separations to marriages have 
 remained nearly the same since 1851, that of di- 
 vorces to marriages is three times as large within 
 the same period. 
 
 Hussia. — Divorce ia this empire can be pro- 
 nounced by an ecclesiastical tribunal in cases of 
 adultery or ante-nuptial impotence, provided that 
 in this latter case three years have expired since 
 the marriage took place ; or for conviction of crime 
 involving loss of civil and political rights. !M!ar- 
 riage can be dissolved on account of absence of one 
 of the parties for at least five years in parts un- 
 known. But if a husband is captured in war, the 
 wife must wait ten years before she can obtaia a 
 divorce. 
 
 All processes for annulling marriage and for 
 divorce are regulated by canonical law and tried by 
 courts ecclesiastical. Divorces are by no means 
 infrequent. 
 
 Q-enncmy. — ^It ig not our pwpose to eater into an 
 
SmCE THE EEFOEMATIOIT. 183 
 
 extended account of the divorce laws of the Ger- 
 man territories. It is enough to say that they may 
 he divided (as Strippelmann, a Superior Judge in 
 Electoral Hesse divided them*) into such as have in 
 the main JoUowed the views of divorce adopted by 
 the early Protestant jurists and theologians, and 
 such as enlarge considerably the causes for divorce 
 originally admitted. . To the &st class belonged 
 especially Bavaria, so far as its Protestant popula- 
 tion was concerned, Hanover, the kingdom of 
 Saxony, and Schleswig-Holstein ; to the second be- 
 longed Prussia, Austria for its Protestant popula- 
 tion, and Baden in its marriage ordinance since 
 1807. The great changes in the law of divorce 
 pertain to the latter part of the eighteenth and the 
 present centuries, so that now, says Richter (Kir- 
 chenrecht, ed. 6, 186T, p. 853) : "In most German 
 territories, not only cruelties and dangerous threat- 
 enings are recognized as valid causes for divorce, 
 but also shorter imprisonment affecting freedom, 
 crimes affecting honor, incurable quarrelling, and 
 charges known to be -false " of one party against 
 the other. 
 
 . Siace the new German empire was established 
 no general divorce-law has been passed, and in the 
 law of February 6, 1875, relating to registration of 
 civil condition and celebration of marriage, divorce 
 is touched only in a few points, one of which is 
 noticed below. Of the Prussian divorce regula- 
 * Ehesoheidungsreclit. Cassel, 1854. 
 
.186 DIVOECE AND DIVORCE LAW IN EUEOPE 
 
 tions we liave already spoken. At present the 
 causes for divorce are, in brief: adultery, malicious 
 desertion, refusal of connubial duty (called of old 
 quasi-malicious desertion), impotence, caused before 
 or after marriage, madness and delirium, plots 
 against the life of a married partner, great crimes, 
 including false charges against husband or wife of 
 such criiiie, dissoluteness of life, vrithholding sup- 
 port, unalterable disKke.* 
 
 Here are subjoined a very few brief statements 
 of divorce in Prussia, Saxony, and elsewhere in 
 Germany, which are by no means complete, but 
 may serve as data for comparison with the statis- 
 tics of some of the United States, which will soon 
 follow. The first statements, from Strippelmann's 
 Ehescheidungsrecht (§ 13), are intended to show 
 the contrast between territories which have adhered 
 to the older Protestant view, and those, like Prus- 
 sia, which have increased the number of causes for 
 separation. The time is 1838— iO. 
 
 1. The divorces granted in the district of the 
 Supreme Court at Berlin were, on the average, for 
 these three years, 5Y0 to about a million of inhabi- 
 tants, or 57 to 100,000. But in the judicial dis- 
 tricts of Frankfurt (on the Oder), Magdeburg, 
 Konigsburg, and Stettin, where the Prussian di- 
 vorce-law was not then applied, the average number 
 
 * Comp. Die Ehescheidung', etc., in territory where the Prus- 
 sian law is in f oroej by W, Peters, a Landesgeriohtrath. Ber- 
 lin, 1881. 
 
SraCK THE EEFOEMATION. 
 
 18T 
 
 of divorces was 30, 35, 34, and 36 to 100,000 
 inhabitants. In the Rhenish province the divorces 
 wei-e 24 yearly among 600,000 Protestants, or 4 to 
 100,000. And in the court district of Greif swald, 
 in 'New Pomerania, there were 16 divorces to 
 100,000. 
 
 In the kingdom of Saxony, for the five years 
 1836—40, the courts of appeal of Leipzig and 
 Zwickau granted 169 divorces annually in a popula- 
 tion of 900,000, or about 18.8 to 100,000. 
 
 In Electoral Hesse, among a Protestant popula- 
 tion of between 6 and 700,000 inhabitants, there 
 were, in 1835, 24 divorces; in 1841, 23; in 1851, 
 16 ; in 1852, 17 ; in 1853, 18 ; that is, from nearly 
 four to a little over two per annum to 100,000. 
 This principality became Prussian in 1866. 
 
 2. Some tables relating to divorce in the king- 
 dom of Prussia follow, which I regret to say, are nei- 
 ther full enough, nor give the ratio to marriages. 
 
 Divoioes in 1839 . .'. 2,524 
 
 " "1840 2,313 
 
 " " 1841 3,341 
 
 Divorces in 1851 2,501 
 
 " " 1853 3,309 
 
 " "1853 2,315 
 
 The suits for divorces were : 
 
 In 1863 ...5,343 
 
 " 1864 5,339 
 
 " 1865 5,377 
 
 " 1866 5,853 
 
 " 1867 5,373 
 
 In 1868 5,387 
 
 " 1869 5,515 
 
 " 1870 ..5,531 
 
 " 1871 4,947 
 
188 DIVOECE Am> DITOKCE lAW DT ETTEOPE 
 
 This list does not include applications from the 
 new provinces, nor from Khenish Prussia. Impor- 
 tant changes in the law gave the coiirts, in 18M, 
 greater freedom of judgment than they had before. 
 
 3. In the kingdom of Saxony, with a population 
 of not far from 2,000,000, there were, in 1862, 470 
 divorces, and of divorce-suits and divorces : 
 
 In 1863 
 
 1,011 
 
 459 
 446 
 372 
 
 In 1866 
 
 911 
 
 863 
 
 " 1864 
 
 963 
 
 " 1867 
 
 " 1868 
 
 1,009 
 
 1,032 
 
 396 
 
 " 1865 
 
 ...... 973 
 
 440 
 
 At this place we subjoin some statistical tables 
 of separation or of divorces in France and England. 
 In France the causes for separation de corps are 
 those enumerated on page 159 supra, viz., adul- 
 tery for the woman, and for the man that adultery 
 in which he keeps a concubine in the " maison cooi- 
 jugale" "exces, sevices, ou injures graves," the 
 condemnation of the other consort to an infamous 
 punishment. Lists may be found in Naqxiet's " Di- 
 vorce," Cadet's " Marriage," and in v. Oettingen's 
 "Moralstatistik," Append., Table 12-15. 
 
 The tables commencing from 1840 and ending in 
 1874 iaclude demands for separations brought by 
 the husband and the wife, the separations granted, 
 the marriages, and the ratios of separations to mar- 
 riages. V. Oettingen gives also the munbers of 
 marriages separated in which there had been no 
 issue : 
 
SnsrCE THE EEFOEliLiTION. 
 
 189 
 
 
 s 
 
 3mtB for separation. 
 
 
 
 
 
 
 
 Separations 
 granted. 
 
 Marriages 
 
 Years. 
 
 By 
 husband. 
 
 By wife- 
 
 Total. 
 
 (Naqnet), 
 in thoneauds. 
 
 1840.. 
 
 
 
 940 
 
 643 
 
 288,000 
 
 1841.. 
 
 • * ■ • 
 
 • • • ■ 
 
 987 
 
 693 
 
 383,000 
 
 1842.. 
 
 .... 
 
 
 903 
 
 684 
 
 280,000 
 
 184!.. 
 
 80 
 
 ■ 997 
 
 1,077 
 
 808 
 
 285,000 
 
 1844. . 
 
 80 
 
 981 
 
 1,061 
 
 794 
 
 279,000 
 
 1845.. 
 
 85 
 
 1,043 
 
 1,127 
 
 817 
 
 283,000 
 
 1846.. 
 
 80 
 
 1,048 
 
 1,138 
 
 813 
 
 268,000 
 
 3847.. 
 
 94 
 
 1,074 
 
 1,168 
 
 834 
 
 249,000 
 
 1848.. 
 
 95 
 
 884 
 
 939 
 
 655 
 
 293,000 
 
 1849.. 
 
 79 
 
 995 
 
 1,034 
 
 755 
 
 278,000 
 
 1850.. 
 
 68 
 
 1,065 
 
 1,134 
 
 834 
 
 297,000 
 
 1851.. 
 
 91 
 
 1,100 
 
 1,191 
 
 864 
 
 286,000 
 
 1802. . 
 
 104 
 
 1,373 
 
 1,477 
 
 1,105 
 
 381,000 
 
 1853.. 
 
 160 
 
 1,563 
 
 1,733 
 
 1,260 
 
 380,000 
 
 1854. . 
 
 171 
 
 1,510 
 
 1,681 
 
 1,342 
 
 270,000 
 
 1856.. 
 
 143 
 
 1,430 
 
 1,573 
 
 1,165 
 
 283,000 
 
 1856.. 
 
 183 
 
 1,481 
 
 1,663 
 
 1,243 
 
 284,000 
 
 1857.. 
 
 168 
 
 1,559 
 
 1,737 
 
 1,352 
 
 295,000 
 
 1858.. 
 
 200 
 
 1,777 
 
 1,977 
 
 1,493 
 
 307,000 
 
 1859.. 
 
 193 
 
 1,856 
 
 3,049 
 
 1,588 
 
 298,000 
 
 18S0.-. 
 
 179 
 
 1,973 
 
 3,151 
 
 1,624 
 
 388,000 
 
 1861.. 
 
 230 
 
 1,963 
 
 • 3,186. 
 
 1,652 
 
 305,000 
 
 1862.. 
 
 247 
 
 3,113 
 
 8,360 
 
 1,784 
 
 303,000 
 
 1863.. 
 
 358 
 
 2,161 
 
 3,419 
 
 1,856 
 
 301,000 
 
 1864. . 
 
 280 
 
 2,160 
 
 3,440 
 
 1,823 
 
 289,000 
 
 1865.. 
 
 297 
 
 •2.274 
 
 3,571 
 
 1,939 
 
 299,000 
 
 1886.. 
 
 284 
 
 2,5?9 
 
 3,813 
 
 2,153 
 
 303,000 
 
 1867.. 
 
 375 
 
 3,544 
 
 2,819 
 
 2,181 
 
 300,000 
 
 1868.. 
 
 319 
 
 2,680 
 
 3,999 
 
 2,272 
 
 301,000 
 
 1869.. 
 
 445 
 
 2,611 
 
 3,056 
 
 3,332 
 
 303,000 
 
 1870.. 
 
 «... 
 
 .... 
 
 2,478 
 
 1,893 
 
 223,000 
 
 1871 . . 
 
 
 
 1,711 
 
 1,171 
 
 262,000 
 
 1873.. 
 
 
 .... 
 
 2,793 
 
 8,150 
 
 353,000 
 
 1873.. 
 
 .... 
 
 .... 
 
 3,850 
 
 2,166 
 
 331,000 
 
 1874. . 
 
 .... 
 
 
 3,884 
 
 2,342 
 
 303,000 
 
 From 1843 to 1869 the sum of suits for divorce 
 brought by husbands was 4,113, by wives 39,373 — 
 
190 DIVOECE AND DIVOECE LA.-W IN EDEOPB 
 
 in all 43,486, and the separations granted 32,532. 
 The ratio of applications from wives, which is 
 tolerably constant to that of husbands, is 1 to 9.8, 
 and to all the separations, as 10 to 11 nearly. Of 
 the cases thus brought before the courts for separa- 
 tion, 16,368 were those of persons without chil- 
 dren, or 1 out of 2.1. 
 
 The number of applications not granted was 
 10,954. But of this vast number not granted 
 many were withdrawn, in others reconciliations 
 took place. The ratio of the divorce suits in all 
 to those which were not granted was, for 25 years 
 (1843-1867), about 100 to 25, or 1 to 4. 
 
 In a series of 25 years (1843-1867), the lengths 
 of the marriages of divorced persons are distri- 
 buted between the following numbers : 
 
 For one year or under 677 - 
 
 " one year and under five 9,66'2 
 
 " five and under ten 10,811 
 
 " ten and under twenty 13,969 
 
 " overtwenty 7,291 
 
 Unknown 1,076 
 
 in 
 
 43,486 
 
 The average of divorces to marriages for 35 years, 
 three periods of ten years and one of five, is : 
 
 
 Divorces. 
 
 Marriages. 
 
 Ratios of divor- 
 ces to marriages. 
 
 1840-49 
 
 7,495 
 12,045 
 19,615 
 
 9,632 
 
 2,785,252 
 2,860,268 
 2,996,222 
 1,463,086 
 
 1 : 371.6 
 
 1850-59 
 
 1 : 239.6 
 
 1850-69 
 
 1 : 152.7 
 
 1870-74 
 
 1 : 151.7 
 
 
 
SINCE THE KEFOEMATIOM'. 19l 
 
 It will be observed that the ratios of divorces to 
 marriages, after inereasiBg to 2.45 times as much 
 in the last five years as it was in 1840-49, is ap- ■ 
 proaching to a maximum, and shows almost no 
 increase in 1870-74 over what it was in 1860-69. 
 But this may be owing to the Franco-German war 
 and its consequences. In 1871 there were fewer di- 
 vorces than there had been in any year since 1855 ; 
 and, as usually happens after war, more marriages 
 occuiTed in 1872 than ever before. In 1874 the 
 marriage tendency fell back to what it was in 1869. 
 
 For the same period 'the causes or motives were: 
 
 For " sevices, exces, injures graves," 39,978 
 
 " adultery of the wife 2,573 
 
 " adultery of the husband 2,020 
 
 " condemnation for crime 755 
 
 Total 45,326 
 
 The sum total should be 43,486 
 
 according to the number of demands or suits. The 
 excess is owing to the fact that in some instances 
 two grounds or motives were put into the same suit. 
 The callings or employments of the persons 
 bringing the demands or complained of were the 
 following : 
 
 Proprietaires, rentiers 10,136 
 
 Persons in commerce and trade 9, 177 
 
 Cultivators of the soil ; 6,631 
 
 Workmen of all kinds 14,969 
 
 Unknown 2,573 
 
 43,486 
 
192 DIVOECE AND DIVOECE LAW m EUEOPE 
 
 These numbers show the agricultural class to 
 very great advantage, as being the largest class 
 with the fewest divorces ; and the liberal profes- 
 sions, as a small' class comparatively, with a dispro- 
 portionately large number. Y. Oettingen speaks 
 of this looseness of the marriage tie in the liberal 
 professions in France as " wahrhaft Erschreckend." 
 But the same canker appears in Saxony. There 
 is there one suit for divorce^ 
 
 To 346 marriages among domestic servants. 
 "309 " " day laborers. 
 
 " 298 . " " officials 
 
 "283 " " manufacturers and tradesmen. 
 
 " 485 '• " persons engaged in art and science. 
 
 The statistics of divorce for England find a 
 beginning here after 1866, and include . lists of 
 petitions for divorce, and for separation, decrees 
 for divorce absolute, for divorce nisi, and for sepa- 
 ration. Decrees in Jhrmd pcmperis being few in 
 number (6, 9, 1, 7, 7, 12, for 18T3-Y8, in due order), 
 and having no significance except so far as the 
 poverty of the person and the costs of suit are 
 concerned, are counted in with divorce absolute. 
 Other matter coming before the divorce and matri- 
 monial causes' court we pass by unnoticed. (Comp. 
 the authors cited, p. 178, note.) As the decrees for 
 divorce nisi must either become divorces absolute 
 or be reversed, they need not be counted. 
 
SmCE THE EEFOEMATIOIT. 
 
 193 
 
 Tears. 
 
 Mftrriages. 
 
 Peti- 
 tions 
 for di- 
 vorce. 
 
 Petitions 
 for sepa- 
 ration. 
 
 Decrees 
 for di- 
 vorce 
 
 absolute. 
 
 Decrees 
 for di- 
 vorce 
 ntaU 
 
 fur Repa- 
 ration, 
 
 Eatiosct 
 divorces 
 to mar- 
 riages. 
 
 1867. 
 
 179,154 
 
 234 
 
 71 
 
 ii9(?) 
 
 - 
 
 11 
 
 
 1868. 
 
 176,962 
 
 236 
 
 68 
 
 23 
 
 137 
 
 23- 
 
 1 : 7964 
 
 1869. 
 
 176,970 
 
 265 
 
 86 
 
 159 
 
 193 
 
 25 
 
 1 : 1113 
 
 1870. 
 
 181,655 
 
 264 
 
 87 
 
 154 
 
 330 
 
 33 
 
 1 : 1475 
 
 1871. 
 
 191.113 
 
 298 
 
 86 
 
 221 (?) 
 
 191 
 
 33 
 
 1: 864 
 
 187a. 
 
 201,267 
 
 ■808 
 
 , 71 
 
 133 
 
 107 
 
 23 
 
 1 : 1513 
 
 187a. 
 
 205,615 
 
 336 
 
 80 
 
 315 
 
 272 
 
 23 
 
 1 : 956 
 
 1874. 
 
 202,010 
 
 879 
 
 88 
 
 194 
 
 384 
 
 36 
 
 1 : 1041 
 
 187.). 
 
 201,212 
 
 362 
 
 89 
 
 173 
 
 194 
 
 19 
 
 1 : 1163 
 
 1876 
 
 201,874 
 
 400 
 
 136 
 
 208 
 
 333 
 
 27 
 
 1 : 970 
 
 1877. 
 
 194.352 
 
 423 
 
 128 
 
 349 
 
 301 
 
 49 
 
 1 : 780 
 
 1S78. 
 
 189,657 
 
 • 516 
 
 116 
 
 293 
 
 496 
 
 57 
 
 1 : 649 
 
 Sums 
 
 i 1868-72 
 
 4,011 
 
 1,106 
 
 2,041 
 
 3,737 
 
 335 
 
 
 The increase of ' the ratio of divorce to mar- 
 riage after 1868 is very perceptible and constant. 
 The separations are much fewer and move forward 
 by a slower increase. The petitions for divorce as 
 compared with the divorces finally granted, so far 
 as the table discovers the latter, are as 10 to 6.1. 
 Of the petitions for separation, about one-third are 
 granted. This divorces represent adultery and 
 more aggravated crimes; and as no harm attends 
 a proof of adultery, but rather it enables the guilty 
 parties to marry one another, we ought to expect 
 that divorce will increase very much more rapidly 
 where the standard of morals is lowered, as it must 
 be by such a liberty conceded by law. 
 
CHAPTEE Y. , 
 
 DITOKCE AST) LAW OF DIVORCE IN THE UNITED 
 STATES. 
 
 It is our endeavor, in the present chapter, to 
 give some account of the state of divorce in our 
 own country. But to do this fully is impossible, 
 and would be an unprofitable collection of details 
 in a work like this, since the law-making power 
 over marriage and divorce is vested in every sep- ' 
 arate State of the Union. Only over the District 
 of Columbia, and temporarily over the Territories 
 until they become States, can Congress exercise 
 the same power in regard to family rights which 
 the States have within their borders.* Almost 
 two-thirds, then, of the existing States acquired 
 
 * Thus, Congress, in 1850, chap. 1C8, passed an act regulat- 
 ing divorces In the District of Columbia, and in 1836 annulled 
 acts of the Governor and Legislative Council o£ Florida, then 
 a Territory, for granting divorces. In 1863, an act was passed 
 by Congress punishing polygamy "in any territory or other 
 place where the United States have exclusive jurisdiction." 
 (See Bishop, § 88, voL 1.) 
 
DIVORCE Am> LAW OF DIVOECE. 195 
 
 power, at the moment of their admission into the 
 Union, of overthrowing all laws in this depart- 
 ment of law which might have been enacted be- 
 fore. Of course, every new State is a place for ex- 
 periments in legislation, following in main points 
 older law, but differing in a multitude of particulars 
 as well from the earlier Commonwealths which con- 
 structed the Union as from each other. It would 
 be idle to make a full collection from, statutes, or 
 revised statutes even, of all the causes for divorce 
 alone ; and the most that is feasible — perhaps more 
 than is profitable— is to exliibit, as briefly as may 
 be, the course of legislation in some of the older 
 States, with any remarkable changes and new ex- 
 periments of such States, or of younger commu- 
 nities. In the preparation of the first edition of 
 this work we examined over twenty States' codes, 
 to find out how marriage and divorce were disposed 
 of in them ; but this is more than seems to be de- 
 manded in a work like this : it rather belongs to 
 comparative digests of the laws of different States 
 of the Union. All we attempt will be to look at 
 some points touching the' origin of divorce laws in . 
 the United States; the remarkable peculiarities 
 which are found in some States or gi-oups of 
 States ; and the progress of change in these laws, 
 indicating or tending toward the increase or dimi- 
 nution of applications for divorce. And for this 
 extensive tables ought to be at hand ; but, unhap- 
 pily, no such have been prepared or attempted, 
 
196 DIVOEOE AND LAW OF DIVOEGE 
 
 except in a very few States — ^nearly all of tliem 
 of the ISTew England group. It would be Mghly ' 
 interesting, also, to know what are the main char- . 
 acteristics of divorce procedure in the several 
 States; what part the judges take in it ; what pro- 
 portion of libels or petitions are rejected or with- 
 drawn; what provisions are made against collu- 
 sions and the like. But these are, in a great 
 measure, mysteries upon wliich even a large part 
 of the most respectable lawyers can throw little 
 light. Hence, in some points pertaining to our 
 subject, one can reach little more than opinion on 
 the actual condition of divorce procedure in the 
 country as a whole — not to say that in the best 
 known parts of it much is hard to be found 
 out. 
 
 At first, divorces were mainly, if not quite ex- 
 clusively, granted by an act of a colonial legisla- 
 ture, in accordance, perhaps, with the practice then, 
 and imtil recently, existing in England, for the 
 House of Peers to take cases of dissolution of 
 marriage into their hands. Quite a number of 
 States, in fact nearly all the old ones,'used this 
 wa.y of dissolving marriage for a long time ; but 
 special legislation in matters of divorce is by 
 the constitutions of thirty States now prohibited. 
 The States which have made no such restrictions 
 on legislative power are the six New England 
 States, New York, and Delaware. The earliest 
 instance of prohibiting legislative' divorce that I 
 
.m THE TJNITED STATES; 197 
 
 liave found is in the Constitution of Tennessee of 
 1334: (Art. xi., § i, renewed in the new Constitu- 
 tion of 1870). We cite this clause : " The Legis- 
 latTu-e shall have no power to grant divorces, but 
 may authorize the courts of justice to grant them 
 for. such causes as may be specified by law, provided 
 that such laws shall be equal and uniform through- 
 out the State." In the Constitution of Mississippi, 
 framed in 1833, a somewhat similar provision ex- 
 isted (Art. vii., § 15), to the effect that " divorces 
 from the bonds of matrimony shall not be granted 
 but in cases provided for by law, by suit in chan- 
 cery." And in the Constitution of 1868, framed 
 after the secession times, we find a similar restric- 
 tion (Art. iv., § 22). In the sis States which have 
 engrafted no such prohibition on legislative power 
 in their constitutions, the granting of divorce by 
 special legislative act is now hardly known. In 
 Massachusetts, it was provided by the Constitution 
 of 1780 that all causes of marriage, divorce, and 
 alimony shall be heard and determined by the 
 Governor and Council untU the Legislatm-e shall, 
 by law, make other provision. A law in 1792 
 ti'ansf erred divorces to the courts ; and accordingly, 
 when a special divorce was granted by the Legis- 
 lature afterward, the Governor vetoed it as being 
 against the Constitution. No special law of this 
 kind has been passed since, and Mr. Bishop (Mar. 
 and Div., ed. 6, § 689) thinks that " a legislative 
 divorce would not now be sustained by the 
 
198 DIVOECE AKD LAW OF DIVOECE 
 
 courts."* By a somewhat similar pathway, the 
 Constitution of Pennsylvania, framed in 1838, 
 denied the Legislature " the power to enact laws 
 annulling the contract of marriage in any cases 
 where, by law, the courts of [the] Commonwealth 
 are, or may hereafter be, empowered to decree a 
 divorce." But the Constitution of 1873 expressly 
 forbids the Legislature to pass any local or special 
 law "for granting divorces." In [ISTew York, no 
 restriction on the power of the Legislature to pass 
 a law of divorce for a special case seems to exist, 
 although local legislation is prohibited for less 
 reason in a constitutional amendment of 1874. In 
 Connecticut, the Legislature can still vote divorce 
 in special cases, and petitions were unsuccessfully 
 presented for this end in 1878, after anobnoxious 
 part of the divorce laws had been repealed ; but 
 nothing has been done for many years except by 
 the coiu-ts to dissolve matrimony.f In Maine, if 
 
 * In 1874, the Legislature of Massp.otiusetts pro-rided that 
 divorces nisi, already granted under an act of 1870, should 
 have the force of divorces absolute from the bonds of matri- 
 mony. Soon after this the Supreme Court declared this pro- 
 vision to be unconstitutional, oh the ground that it was an 
 interference with the judicial power by the Legislature, the 
 court holding that the terms of the Constitution showed an 
 intent of the people to commit the hearing and determination 
 of all cases of divorce to the judiciary only. (From Mr. C. D. 
 Wright's Eleventh Report of the Bureau of Statistics and 
 Labor for 1880, p. 221.) 
 
 \ The general statutes, as edited and revised under act of 
 the Legislature, and approved by that body in 1874, contains 
 
IN THE UNITED STATES. 199 
 
 I am not in an error, a legislative divorce was 
 granted in 1867 ; but an amendment to the Con- 
 stitution in 1876 authorized the Legislature, "from 
 time to time, to provide, as far as practicable, by 
 general laws, for all matters usually appertaining 
 to special or private legislation." And finally, 
 ]Srew Hampshire, having provided by the Consti- 
 tution of 1784, as well as by that of 1792, that "all 
 causes of mairiage, divorce, and alimony should be 
 heard and judged by judges of the Superior Court, 
 until the Legislature, by law, shall make further 
 provision," the matter of legislative divorces stands 
 nearly as it does in Massachusetts. 
 
 Thus the States are giving up legislative divorce, 
 and there will soon be uniformity in this respect, 
 if for no other reason, for this, that as States in- 
 crease in population the load of business thrown 
 on legislatures and committees by petitions for dis- 
 solving marriages would become intolerable. But 
 if we turn to the general laws affecting divorce or 
 separation, we find the case to be very different. 
 There are now thirty-eight law-making powers 
 continually in action within the United States; 
 some of them busy at readjusting the old laws to a 
 somewhat altered condition of society ; others, in 
 
 the following heading of the chapter on divorce : ' ' The Su- 
 perior Court shall bare exclusive jurisdiction of all petitions 
 for divorce," etc. If the word exclusive does not mean to 
 the exclusion of any other court, as it probably does, petitions 
 could only be considered by the Legislature in regard to causes 
 not provided for by existing law. 
 
200 DIVORCE AJSro LAW OF DIVOECE 
 
 newly settled States, called upon to make new 
 codes after old ones with which the law-makers 
 are familiar, or trying fresh experiments in legisla- 
 tion, or correcting the errors and even follies of 
 earlier experimenters. Thus there is a wearisome 
 amount of laws on divorce at any one time exist- 
 ing, and it is no easy task to run through the fre- 
 quent changes in the law. Mr. Bishop, in his 
 standard work on marriage and divorce (fourth 
 edition, 1864) declined setting out "m exfenso 
 the statute laws of the several States relating to 
 marriage or relating to divorce." " Should this 
 be done," says he, " a great mimber of our pages 
 would be occupied with the work, while very little 
 benefit indeed would result to the reader." " It is 
 observable," he continues, " that the statutory laws 
 of this country relating to this subject, seem in 
 general to have been drawn up by men who either 
 did not possess much knowledge of the nnwritteh 
 law which governs it, or did not regard such un- 
 written law as worthy to be considered by them in 
 framing the statute ; and who, moreover, gave but 
 little thought to the practical working of the stat- 
 utes." One of his proofs of the truth of these re- 
 marks is taken from the general statutes of his 
 own State of Massachusetts, where there was a pro- 
 vision that a divorce from the bond of matrimony 
 might be decreed for aduUery or impotency of 
 either party. But " impotency of either party," 
 to justify divorce, must be, according to common 
 
rCT THE UNITED STATES. 201 
 
 law, an impediment at tHe commencement of mar- 
 riage, while adndtery 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- 
 ling and causes dissolving marriage ; and the same is 
 true of the laws of many other of the States, which 
 speak of impotency barely, while others are care- 
 ful in their laws to define it as existing before 
 marriage. How could such a provision be inter- 
 preted without a knowledge of common law ? For 
 under some codes mypotemtia superveniens may 
 dissolve marriage, and more frequently a previous 
 adultery renders remarriage unlawful, or at least 
 during the life of the innocent party.* 
 
 The States of the Union may be divided' into 
 those which provide both for absolute divorce and 
 for separation, and those which know nothing of 
 the last-mentioned proceeding. They may also 
 be loosely divided into those which have followed 
 
 * It may be worth remarking- here, that the Prussian Land- 
 recht neglects this, as it seems to ns proper, distinction: 
 " Entire and incurable impotence (uuvermogen), whether 
 originated before or after marriage, furnishes ground for a 
 suit to dissolve the marriage." (Laudr., §§ C96, 697.) It 
 is indifferent whether this was at its origin innocent or crim- 
 inal ; but this does not apply to a defect resulting from old 
 age. (W. Peters, Die -Ehescheidnng, etc., or Divorce. in the 
 Territory under the Prussian General Landreohtj 1881.) 
 
 g* 
 
202 DIVOECE AND LAW OF DIVOEOE 
 
 English law and those which followed the opinions 
 of the reformed churches in Germany, Holland, 
 and Scotland — opinions which were more or less 
 current among the Puritans of Old England in the 
 seventeenth century. In one State — Louisiana — a 
 marked influence of French law appears, which is 
 shaped to suit its peculiar condition. The newer 
 States in the Northwest seem to have followed the 
 prevailing views among the first settlers, especially 
 those from New England. All the new States in 
 the Northwest, to the north of the former zone of 
 servitude, adopt the plan of multiplying causes of 
 divorce freely, after the manner of the age, and in 
 this, without question, the settlers from European 
 Protestant countries would freely concur. 
 
 There is one State which knows nothing of 
 divorce, and where a divorce was never granted 
 since the first emigration. We refer to So\ith 
 Carolina, where the earliest mention made of dis- 
 solution of maiTiage appears in the Constitution of 
 1868 (Art., xiv., § 5), in these words : " Divorces 
 from the bonds of matrimony shall not be allowed 
 hut by the judgment of a court, as shall be pre- 
 scribed by law." An act was subsequently passed 
 under the power so granted, but by an act approved 
 December 20, 1878, it was provided that all acts and 
 parts of acts relating to the subject of granting di- 
 vorces be, and the same are hereby, repealed. Only 
 the power, then, remained, imder the new Consti- 
 tution^ of passing such laws at some future time. 
 
m THE TJKITED STATES. 203 
 
 The attitude taken by South Carolina in regard 
 to divorce is due, not to any attachment to sup- 
 posed commands of Christ in the Ifew Testament, 
 but to its State pride and the old oligarchical feel- 
 ings of the original colony. As ,a slave State it 
 has winked at concubinage, and the white wife had 
 often to endure the infidelity of her husband, as 
 something inevitable which no law could remedy 
 and public opinion did not severely rebuke. " ITot 
 only is adultery not indictable there," says Mr. 
 Bishop, " but the Legislature has found it necessary 
 to regulate by statute how large a proportion a mar- 
 ried man may give of his property to a concubine " 
 (ed. 6, vol. i., § 38). From the same author we 
 cite the following words of Judge Nott, of the 
 State Court, which show that the jurists do not 
 regard the system as wholly good, and as deserv- 
 ing of all the boasts which have been made in 
 its favor: "In this country, where divorces have 
 not been allowed for any cause whatever, we some- 
 times see men of excellent character unfortunate in 
 their marriages, and virtuous women abandoned 
 or driven away homeless by their husbands, who 
 would be doomed to celibacy and solitude if they 
 did not form connections which the law does not 
 allow." The law of 1 James I., making marriage a 
 felony while a husband or wife is living, is prac- 
 tically disregarded. When the divorce law of 1868 
 was repealed in 1878, there was passed a law mak- 
 ing the living together of men and women in 
 
204 DrVOECE AlilT) LAW 01" DIVOECE 
 
 adultery a crime. How far it is executed we do 
 not know. 
 
 In jihe colony, called New York after the peace 
 of Breda in 1671, so long as it was a Dutch pos- 
 session, a court composed of the governor and 
 councillors had jurisdiction in cases of divorce ; 
 but, according to Chancellor Kent, "for more than 
 one hundred years preceding the revohation, no 
 divorce took place in the colony of Jiew York, and 
 for many years after New York became an inde- 
 pendent State there was not any lawful mode of 
 dissolving a marriage in the Hfetime of a person 
 but by a special act of the Legislature. This 
 strictness often forced the parties, in cases which 
 rendered a separation fit and necessary, to another 
 State, to avail themselves of a more easy and cer- 
 tain remedy. At last the Legislature, in 1787, 
 authorized the Court of Chancery to pronounce 
 divorces a vinculo in 'the single case of adultery. 
 This is now still the only offence for which divorce 
 a vmculo may be granted. Separation may be 
 granted for cruelty to Sr wife, conduct rendering 
 cohabitation unsafe and improper for the wife, 
 and for abandonment or neglect to provide for her. 
 To sustain the suits for divorce or for separation, 
 certain conditions of residence, etc., are necessary. 
 It was forbidden, since 1813j to the party guilty 
 of adultery to marry again until the death of the 
 innocent party. But in 1879 special permission 
 was given to the court to grant such power of re- 
 
m THE UNITED STATES. 205 
 
 marriage after five years from the divorce, "pro- 
 vided that proof of good conduct was furnished, 
 and that the defendant (the innocent party) had 
 contracted marriage." * 
 
 ISTew York, to some extent, followed England or 
 English feeling in its divorce laws. Louisiana, on 
 the other hand, to some extent, follows France in 
 this respect. The Civil Code (ed. of 1857) de- 
 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 
 intended at its origin to endure until the death of 
 the contracting parties, it seems a little inconsistent 
 with itself, for whence can this indissolubility be 
 derived but from moral and religious considera- 
 tions. The truth is that marriage is not a contract 
 properly speaking, the terms of which can be set- 
 tled at the pleasure of the parties, but is a natural 
 
 * Kent, p. 96,' and Hoffmann's Law of Divorce, in Church 
 Eev. for 1873. Mr. Murray Hoffman, an eminent lawyer of 
 the city of 'Sew Tork (Assistant Vice-Chancellor and Judge 
 of the Supreme Court of the State), says that " while the law 
 of New York deserves all commendation for its inhibition, it 
 is imperfect and censurable for not absolutely prohibiting the 
 marriage after, as well as before, the death of the innocent 
 party, . . . The reasons which have induced us to regard the 
 marriage of the adulterer with the paramour as abhorrent 
 and unwise apply, with nearly equal force, to a marriage with 
 any other." " There are, however, special reasons for prohibi- 
 tion of marriage in the case named." 
 
206 DrVOEOE AITD LAW OF DIVORCB 
 
 state or condition fixed by the God of nature, the 
 entrance into which must be by the consent or 
 contract of those who are able to give their con- 
 sent. The law of marriage in this code has these 
 peculiarities: that any offence for which divorce 
 may be granted may also be the cause of sepa- 
 ration from bed and board, and that for every 
 offence, excepting two, this separation must pre- 
 cede divorce proper by a length of time. These 
 two causes of immediate divorce are adultery and 
 sentence of infamous punishment ; by the former 
 of which causes, in the husband's case, is xmder- 
 stood, I believe, as in the French code, his keeping 
 a concubine in the common house, or openly and 
 publicly elsewhere. In other cases, two years must 
 elapse after the separation, without reconciliation 
 of the parties, before divorce can be pronounced. 
 The remaining causes mentioned in the code are 
 cruel conduct, making life insupportable, abandon- 
 ment, defamation, and attempt of either party on 
 the life of the other. A statute of 1827 ordained 
 that no divorce shall- be granted except for adul- 
 tery, infamous punishment, cruel conduct as above, 
 and abandonment for five years, in which case a 
 summons to return must be made before applica- 
 tion for the divorce. In regard to 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 pro- 
 nounced nulli 
 
. m THE UNITED STATES. 207 
 
 The earliest colonists who laid • the foundations 
 of 'Sevr England brought with thena views of di- 
 vorce which they held in common with their re- 
 formed brethren in Scotland and Holland, and 
 indeed with the reformed churches generally, as 
 well as with the Lutheran. They held that the 
 New Testament recognized adultery and desertion 
 as the only sufficient grounds for dissolution of 
 marriage, including the enormous and rare unnatu- 
 ral crimes more heinous than adultery. At that 
 time desertion was a very different thing from that 
 which is so called now. To go to some remote 
 colony, or to the West Indies or the old country 
 from disaffection of mind, or with the spirit of a 
 vagabond, implied life-long severance of family 
 ties, and the probabilities were gi-eat that it in- 
 volved adultery also. To these two causes were 
 added absence in parts unknown for seven years 
 without being heard from, which, in a law of the. 
 Massachusetts Colony, passed in the 6th of Wil- 
 liam 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 hardly a third cause of divorce, but rather 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 fixed on this 
 
208 DIVOECE Airo' LAW OF DIYOECE 
 
 very term of years in applying it, must have fur- 
 nished a model and an authority to the colonists. 
 
 The Kew England States passed together," like 
 the Protestant States on the European Continent, 
 from strict observance of what they regarded as 
 scriptural grounds for divorce, into the loose prac- 
 tice of the Protestants on the Continent in the 
 eighteenth century. The first enlargement of the 
 causes of divorce after the Eevolution, came from 
 Massachusetts in 1Y86, when divorce from bed and 
 board could be granted for extreme cruelty. In 
 Connecticut divorce could be granted in 1843 for 
 habitiial intemperance and intolerable cruelty. 
 Erom these beginnings, by a kind of logical neces- 
 sity, the law was made to include other causes, of 
 which we shall mention those which still exist 
 when we come to speak of the statistics of divorce 
 in New England and elsewhere in the United 
 States. 
 
 There is a general agreement, yet with marked 
 peculiarities in special cases, among the divorce 
 laws of the States which we have examined. 
 Among the causes we notice 
 
 First. — Impotentia. In ten States this is prop- 
 erly qualified as existing before marriage. In one 
 (Iowa, Code of 1873), it is spoken of as a cause of 
 annulment, and probably in a nmnber of others. 
 
 Second. — Adultery is followed by divorce abso- 
 lute, and the definition, when given, is the same, 
 we believe, through the Union. It is, as the stat- 
 
nr THE uinTED states. 209 
 
 iites of Eliode Island have defined it, illicit inter- 
 course of two persons, one of whom: is mamed. 
 
 Third. — Desertion. This offence is called by 
 several names — as abandonment, as utter, wilful, 
 malicious, continued, and obstinate desertion, as 
 absence without good cause. The sense' in all the 
 forms of expression must be the same. Absence 
 from the comfnon dwelling, not for the purpose of 
 business, but with the evil or " malicious " intent 
 of not fulfilling conjugal obligations, and that ab- 
 sence not interrupted by occasional visits, but con- 
 tinued long enough to test the offender's disposi- 
 tion, may be said to constitute the offence thus 
 described in different words. The statutes gen- 
 erally state what specific time shall constitute de- 
 sertion. In Indiana, it was once one year " or 
 less " if the court find that reconciliation is im- 
 probable, but in 1859 " or less " and what follows 
 was stricken out. In Missouri, two years without 
 good cause is the shortest liniit. In five or six 
 other States - (Pennsylvania, Michigan, Illinois, 
 Alabama, Maine, Iowa) it is two years ; in seven 
 or more, three years (New Jersey, Ohio, Connecti- 
 cut, New Hampshire, Delaware, Oregon, West 
 Yirginia; Massachusetts); in Virginia and Louis- 
 iana five years, and in Rhode Island the same 
 term or a shorter, according to the discretion of 
 the court. In some" laws the penalty is divorce a, 
 mTiculo, in others separation. 
 
 Fourth. — Imprisonment for crime is made by 
 
210 DIVOECE AND LAW OF DIVOECE 
 
 most of the States a cause for divorce, or, it may 
 be, for separation. The time of the imprisonment 
 varies in different States ; and it is sometimes de- 
 scribed as being infamous punishment, or for felony, 
 or in a penitentiaiy. 
 
 Fifih.^^in. the statutes of a few States, as INew 
 Hampshire, Massachusetts, and Kentucky, to join 
 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 one 
 State adds — is made a ground for divorce. The 
 statutes of Massachusetts require that membership 
 in such a sect shall have lasted three years before 
 • a libel for divorce can be presented by the com- 
 plaining wife or husband. 
 
 Sixth. — Neglect to provide for a wife's main- 
 tenance and support lies between desertion and 
 cruelty. Hence this is added in a number of stat- 
 utes as a reason for divorce or for separation. This 
 is at one time described as neglect or refusal of 
 the husband to support the wife when he has 
 ability; at another, as neglect to provide for his 
 family, or the refusal suitably to maintain a wife, 
 or gross and wanton neglect so to do. This wrong 
 of the husband may be visited with divorce or 
 separation. 
 
 Seventh. — Habitual drunkenness appears in quite 
 a number of statutes. It is spoken of variously 
 as habitual drimkenness, or as gross and confirmed 
 habits of drunkenness ; and sometimes is defined 
 
IN THE milTED STATES. 211 
 
 by the length of time during which it has con- 
 tinued — by two 3'ears' continuance in Missouri and 
 three years in New Hampshire. 
 ■ Eighth. — ^In all, or nearly all, the statutes of the 
 several States, cnielty is made a cause of separation 
 or of divorce. It is described by such phrases as 
 intolerable severity (Vermont), whether proceeding 
 from either party; as extreme cruelty (as in New 
 Hampshire, Maine, and elsewhere) ; as intolerable 
 cruelty (Connecticut) ; as cruelty and condiict ren- 
 dering cohabitation unsafe for the wife (New York) ; 
 as cruelties endangering life, and indignities mak- 
 ing life burdensome (Pennsylvania), which the 
 laws of North Carolina and Tennessee substantially 
 repeat, the first adding to it turning the wife out 
 of doors, the other calling it ejection. Louisiana 
 defines it excess, cruel treatment, or outrages, if they 
 are such as to render life insupportable, which 
 somewhat follows the French 'exces, sevices, in- 
 jures graves.' Tennessee, in its code, added at- 
 tempts on life by poison or other malicious means, 
 which are made a cause of divorce, while cruelties, 
 indignities, and ejection are the cause of separation. 
 In Kentucky, the cruelty or gross cruelty is meas- 
 ured by its continuance: it must have continued 
 six months, but another specification is added — 
 cruel ' beating or injury — to which no such con- 
 tinuance is attached, so that a single act for any- 
 thing that appears may be a sufficient cause for 
 dissolving a marriage. 
 
212 DIVOECE Airo LAW OF DIVOECE 
 
 In some statutes it is seemingly assumed that 
 the husband onlj will be guilty of cruelty, as being 
 the stronger party ; in others the expressions ai'e 
 indefinite, and may apply to both. " Yet tlie law 
 (says Mr/ Bishop, I., § 761, ed. 6) equally in Eng- 
 land and in most of our States, gives the same re- 
 lief to a complaining husband as to a complaining 
 wife." In a few statutes of the States, the wife 
 only can complain ; in most of them it is so left 
 that the same remedy is granted to both alike ; and 
 in one or two, extreme cruelty of either is spoken 
 of as a cause, as in the laws of Indiana (1876). Mr. 
 Bishop states (note 2, u. s.) that in New York, an 
 act of 1824 authorized a divorce from bed and 
 board on prayer of the husband, but that in the 
 Ee vised Statues of 1830, this remedy was only gi?-- 
 en to the wife. But as the earlier statute was not 
 expressly repealed, it was held to remain in force. 
 In quite a number of States, separation is inade the 
 appropriate remedy as a protection and security 
 for the future to the feebler party. 
 
 JVinfh. — ^ few of the States have somewhat re- 
 markable provisions in their laws of divorce, which 
 either put the whole subject within the discretion 
 of the courts, or open a wide door for divorce or 
 separation. In the statutes of Maine (-1870) after 
 specific causes had been mentioned, we find that 
 divorce a vinculo may be granted by any justice of 
 the Supreme Court ..." whenever, in the exer- 
 cise of a sound discretion, he deems it reasonable 
 
m THE ITNTrED STATES. 213 
 
 and proper, conducive to domestic harmony, and 
 consistent with the peace and morality of society — 
 it the parties were married in [the] State, or cohab- 
 ited there after marriage." In North Carolina, the 
 statute (1855), after providing for cei'tain special 
 cases, adds that " if any other just cause of divorce 
 exists," the injured party may obtain divorce a vin- 
 culo or a mensa et toro, at the court's discretion, oy 
 a decree of alimony only if no more is demanded. 
 The law of Indiana provided in 1862 that divorce 
 might be decreed by Circuit Courts on petition of a 
 bona fide resident in the coimty for certain causes, 
 and then adds, " and for any other cause for which 
 the court shall deem it proper that a divorce shall 
 be granted." But this action of the Circuit Court 
 could be revised by the Supreme Court. The in- 
 terpretation of the higher court has takeii away 
 from the judges, if I am rightly informed, what 
 seems on the face of the statute to be a great lati- 
 tude of discretionary power. Besides the statute 
 causes for divorce, which are five : adultery, cruelty, 
 extreme and repeated cruelty, two years' habitual 
 drunkenness, and conviction of felony or other in- 
 famous crime, the statute empowers the courts to 
 hear and determine all causes of divorce not author- 
 ized by any law of the State, and to decree a disso- 
 lution of the marriage, if judged expedient. But 
 the Supreme Court has decided that the discretion 
 given must be limited to common law causes, omitted 
 in the enumeration of the statute, viz.: pre-contract 
 
214 nrvoECE and law of divoece 
 
 and relation by blood and marriage, on which 
 grounds applications are rarely made.* Similar 
 discretion was given to the court in Rhode Island, 
 in the statutes where divorce may be granted not 
 only for sundry specific causes, but for any gross 
 misbehavior and wicked conduct, repugnant to or 
 in violation of the marriage covenant. So, too, di- 
 vorce from bed and board may be decreed, until 
 reconciliation, for any cause for which divorce ab- 
 solute may be granted, and for any such, other 
 causes as may seem to require them. And in Con- 
 necticut, from 1849 until 1878, a statute allowed di- 
 vorce for "any such misconduct as permanently 
 destroys the happiness of the petitioner and defeats 
 the purposes of the marriage union." The discre- 
 tion given by some of the laws just mentioned 
 must be very embarrassing to the judge, and may 
 result in very dissimilar decisions, according as he 
 has loose or strict notions of the sacredness of mar- 
 riage. The looseness of others of these laws will 
 almost, of course, stretch the facility of granting 
 divorce to its extreme limit. 
 
 Tenth. — As the causes for divorce differ greatly 
 in the laws of different States^ there is a danger 
 lest a party wishing for an easier remedy than his 
 own State allows, will change his domicile for this 
 
 * The information contained in the last few liues, begins 
 ninging with the words '' the interpretation," etc., I owe to a 
 highly respectable lawyer of Chicago. It appeared in the first 
 edition of this work, in 1868. 
 
m THE TJOTTED STATES. 215 
 
 purpose. Laws, therefore, exist in many, if not all, 
 of the States of the TJnion to prevent dishonest 
 acquisition of domicile. " The doctring," says Judge 
 Story, in his " Conflict of Laws," § 230, " which is 
 now jBrmly established in America, is that the law 
 of the place of the actual iona fide domicile of the 
 parties, gives jurisdiction to the proper courts to 
 decree a divorce for any cause allowed by the local 
 law, without any reference to the law of the place 
 of the original marriage, or the place where the of- 
 fence for which the law is allowed was committed." 
 
 The relations of domicile to divorce, and the 
 question what is a Tyona fide domicile, must be as- 
 certained from treatises on divorce and on conflict 
 of laws, such as Mr. Bishop's and Judge Stoi-y's.* 
 If a party removes animo Tnanendi, for the pur- 
 pose of dissolving marriage, from a State, for in- 
 stance, where certain causes have separation as 
 their sole remedy, to another State where the rem- 
 edy is divorce, and remains for the prescribed time, 
 there is no preventing his making use of the law 
 in his favor; and there may easily be an under- 
 standing between a wife and husband to do this 
 for the procurement of a dissolution of marriage. 
 
 Again, the States of our Union differ consider- 
 ably in regard to the point of granting divorce a 
 vinculo and separation in particular cases, and as 
 to the expediency of granting separation at all. 
 
 * Compare Bishop, ed. 6, ii., §§ 149-199. I have borrowed 
 from him the citation from Stoiy. 
 
216 DIVOECE AND. LAW OF DIVOECE 
 
 The earlier colonies knew nothing of separation a 
 mensA. After the States became independent, 
 limited divoEce might be granted on account of 
 extreme cruelty, by a statute of Massachusetts in 
 1^86, and another in 1810, to a wife utterly de- 
 serted, or for whose maintenance the husband re- 
 fused or failed to provide. In 1860, gross and 
 confirmed habits of intoxication, with cruel and 
 abusive treatment, became two new causes for this 
 kind of severance of the marriage tie; but in 1870, 
 divorces from bed and board were prohibited, and 
 have not been allowed by any new statute since. 
 In Ehode Island, a divorce from bed and board, 
 until reconciliation, may be granted for any eaus.e 
 for which divorce absolute is granted, and for such 
 other causes as may seem to require them. New 
 York has steadily confined the granting of divorce 
 to the single offence of adultery, and granted sepa- 
 ration for other causes. New Jersey grants it for 
 the offence of cruelty, either for a time or perma- 
 nently. Delaware empowers the court having cog- 
 nizance of divorce to decree separation at discretion 
 in several cases. In Louisiana, separation is the first 
 step in all cases, except charges of adultery, before 
 divorce can be obtained. The laws of quite a num- 
 ber of other States allow separation in certain cases. 
 We need here do no moi-e than allude only to the 
 obstacles put, almost universally, in the way of di- 
 vorce, where some previous conduct of the petitioner 
 furnishes a good reason for the denial of his peti- 
 
m THE msnTED states. 217 
 
 tion. Thug, the petitioner's similar infidelity, if 
 the alleged cause for the petition is adultery, or his 
 condonation, or indulgence shown by cohabiting 
 with the defendant after knowledge of the offence, 
 or long and needless delay to notice it, or putting 
 temptations in the way of the other party in order 
 to be able to bring a charge, or the connivance or 
 collusion of both parties, would render a petition 
 or complaint worthless. The principles of natural 
 justice would probably govern the decisions of courts 
 were there no especial statutes of such an import. 
 
 More important is it for our especial object to 
 look at the results of divorce to the parties, the 
 .liabilities or disabilities, and the penal consequences 
 which may follow the offence of the guilty party. 
 Here, first and especially, the way in which the 
 different States. view the sin of adultery is de- 
 serving of notice. Some, as New York and South 
 Carolina, have followed England in not holding 
 it to be a subject of criminal pxmishment, although' 
 the reason which existed for this in England had 
 no force in the colonies or the States. ISTor have 
 we noticed it in the statutes of Kentucky, Ten- 
 nessee, or of Louisiana. In Mr. Livingston's code, 
 the guilty woman forfeits all matrimonial gains 
 and certain leading civil rights. Her partner in 
 guilt is liable to a fine of between one hundred 
 and two thousand dollars, or to imprisonment for 
 not more than six months. A husband keeping 
 a concubine in the house is subject to the same 
 • 10 
 
218 DIVOECE AUD LAW OF DIVOECE 
 
 fines, and loses the right, for a certain time, of 
 being a tutor or curator to his children. In some 
 other codes the penalty is very small. In Mary- 
 land it is a fine of ten dollars ; in Yirginia of not 
 less than twenty. In most of the States it is an 
 offence subjecting the parties guilty of it to fine 
 and imprisonment, or both ; but the amount varies 
 greatly. The fine generally falls between one 
 hundred and five hundred dollars. The imprison- 
 ment runs up from confinement in a common jail 
 for not more than sixty days, as in Georgia ; or not 
 exceeding six months, as in Missouri ; and in sev- 
 eral other States, to a year, which is the maximum 
 in most of the codes ; or up to five years, as in 
 Yermont, Maine, and Connecticut. In a few 
 States, a repetition of the offence increases the 
 penalty. In Alabama, formerly, if not now, the 
 first commission of adultery had a fine of not less 
 than a hundred dollars imposed on it, with im- 
 prisonment in a county jail, or confinement with 
 hard labor for not more than a year; while a 
 renewed offence trebled the fine and doubled the 
 punishment, and a third was visited with two 
 years' hard labor in the penitentiary. The laws 
 of Illinois, again, which impose on each party a 
 fine of two hundred dollars, or six months' im- 
 prisonment, for the first offence, double and treble 
 it for successive new ones. 
 
 The feelings of the early settlers in some of the 
 older colonies was in striking contrast with the 
 
IN, THE UNITED STATES. 219 
 
 tender, the immorally lenient treatment wliich 
 adultery receives from the existing laws of most of 
 the United States. The first laws of Massachusetts 
 made it, after the manner of the Jews, a capital 
 crime. In 1699, persons convicted of this crime 
 were to be set on a gallows with a rope round the 
 neck, one end of which was cast over the gallows, 
 and then they were whipped on the way to the 
 jail, not exceeding forty stripes, and were to have 
 a capital A, two inches long, " of color contrary to 
 their clothes," sewed on the sleeve or back of the 
 outer garment, so as to be in open view. And, if 
 such persons were found without the mark they 
 were to be whipped, not exceeding fifteen stripes, 
 for every neglect to wear it. The Connecticut laws 
 of 1673, required the same brand to be burnt in on 
 the forehead, to which penalty wearing of a halter 
 and public whipping were added. In Bhode Island, 
 in 1655, a wife confessing her guilt was sentenced 
 by the General Assembly to pay ten pounds iine 
 and receive thirty stripes in two instalments.* 
 Even Yermont, although settled so long after the 
 other colonies, follows them in the penalties con- 
 tained in its original laws, which are thirty-nine 
 stripes, or an A branded on the forehead, and the; 
 same on the clothes, with a liability of receiving ten 
 stripes if the convicted person is found without it. 
 In the statutes of 1787, the brand on the forehead 
 is omitted, but the guilty persons are set on the gal- 
 * Arnold's History of Rhode Island, i. , 330. 
 
220 DIVOECE A2<n) LAW OF DIVOECE 
 
 lows and are to wear the marks on their clothing. 
 So also in Pennsylvania, a law of 1705 exposed such 
 persons to twenty-one lashes for the first conviction 
 of adultery, for the second to seven years of hard 
 labor or one hundred pounds fine, and for a third to 
 a repetition of the same penalties besides the brand 
 of the letter A. In Yirginia, again, by a law of 
 1691, a fine of twenty pounds sterling was imposed 
 after every conviction ; but if the offender was un- 
 able to pay the fine, thirty lashes on the back, or 
 three months' imprisonment, could take its place. 
 In 1696, the money fine disappears, one thousand 
 pounds of tobacco, vsdth a cask, or twenty-five lashes, ■ 
 or two months' imprisonment, being now the penal- 
 ties. In 1705, the statute omits the imprisonment, 
 but retains the tobacco and cask, and the twenty-five 
 lashes. Thus the Puritan, the Quaker, and the 
 Eoyalist colonies agi-ee in the severity with which 
 they punish this crime. But they agree also in 
 softening down their penal legislation. In Pennsyl- 
 vania, imprisonment for a year, or a fine not to ex- 
 ceed five hundred dollars, now expresses the indigna- 
 tion 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 imprison- 
 ment in the State's 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, confinement for not more 
 
-IN THE ITNITED STATES. 221 
 
 than five years is the only penalty. It were well if 
 these penalties were not in some parts almost ob- 
 solete. In the reports of the commissioner of the 
 State prison in one State we find, in the course of 
 twenty-eight years, only one person imprisoned for 
 this crime. A gentleman writes from one State 
 where the penalty for adultery was a fine not ex- 
 ceeding one thousand dollars or imprisonment not 
 exceeding twelvemonths, that "tliis offence is some- 
 times, but not often, punished by a nominal fine, 
 and that in the case of negi-oes he has known im- 
 prisonment to be added." And the statistics will 
 inform us that, when adultery is the cause for ob- 
 taining divorce, it is very seldom followed up by a 
 public prosecution. The result of this sleep of jus- 
 tice in regard to one of the higher social offences 
 must be that private vengeance will awake to wreak 
 itself on the wrong-doers, or the morals of society 
 will become blunted toward one of its chief evils. 
 
 Second. — Other disadvantages affect the previous 
 rights of property of the divorced party, especially 
 if the crime is adultery. Thus we find laws like the 
 following : That the husband may hold the property 
 of the guilty wife, her personal estate foi'ever, and 
 the real estate of which she was seized during 
 coverture, if they had a living child daring its 
 minority, and if not, during life as long ais he sur- 
 vives her ; or that his rights to her property shall 
 be the same as if the marriage had not been dis- 
 solved. So, also, if the husband is guilty, the wife 
 
222 DrvoECE and law of divoece 
 
 is to have dower in Ms real estate the same as if 
 he were dead, and to have her own restored to her. 
 Other laws leave the whole matter of alimony to 
 the judge's discretion, or fix a limit beyond which . 
 it shall not reach — which limit, if the husband is 
 guilty, must not, ia Rhode Island, exceed half his 
 real and half his personal property. In Connec- 
 ticut, the Court may assign to any woman divorced 
 for her husband's fault, a part of his estate, not 
 exceeding one-third, and may change her name. 
 And if a woman be divorced for her own miscon- 
 duct, who has received any estate from her hus- 
 band, such estate, if personal, may be retained by 
 her, but, if real, shall revert to him. These are 
 examples from a copious title of laws for the ad- 
 justment of property relations between married 
 parties after dissolution of marriage ; and another 
 provision of equal importance for the maintenance 
 of children after the separation of their parents, is 
 found in all the statutes. 
 
 Third. — With regard to liberty of remarriage 
 after divorce, the State laws differ greatly. Some 
 lay no restrictions whatever on the liberty of di- 
 vorced persons, so that, whether complainants or 
 defendants, they are entirely free to marry one 
 another again the next day, and the adulteress is 
 free to marry anybody, even the partaker of her 
 sin. Others forbid the guilty party, whatever be 
 the cause for divorce, to marry during the life of the 
 innocent one ; and a marriage so contracted, during 
 
IN THE imiTED STATES. 223 
 
 the life of the other, is, by the laws of Massachu- 
 setts, " void, and such party shall be guilty of po- 
 lygamy." But it is just within the power of the 
 Supreme Judicial Court to allow such a person to 
 marry again. Such discretion is given to the 
 courts in a number of States. In Kentucky, it can 
 (or could) not be legally exercised within five years 
 after divorce ; in Virginia, the prohibition could be 
 I'evoked for sufficient cause. In some States the 
 offending party, or, it may be, the offending party 
 whei'e adulteiy is the ground for divorce, cannot 
 marry during the lifetime of the other party ; and 
 the breach of this law in divorce for adultery in 
 Louisiana subjects the person concerned to the 
 penalty of bigamy, and annuls the new marriage. 
 A somewhat similar law has existed in ISTew York, 
 but in 18T9, a permission to marry could be granted 
 by the court five years after divorce for adultery, 
 on certificate of good behavior in the inteival. In 
 1880, however, the old law was revived again in 
 tlie Code of Civil Procedure. 
 
 In looking back on the ground over which we 
 have travelled in this chapter, and, indeed, on the 
 whole history of divorce in Christian lands, espe- 
 cially where the law of the State has undertaken 
 to control it, we find divorce to be a very trouble- 
 some problem for legislation. We find the causes 
 for it to be more numerous since the Reformation 
 took the care of it out of ecclesiastical hands, or 
 made ecclesiastical courts dependent on the State. 
 
22i DIVOECE AND LAW OF DIVORCE 
 
 We find all over Protestant Europe new causes al- 
 lowed for divorce, and an increasing want of rev- 
 erence for tbe sacred institution of marriage. We 
 find in the United States numberless experiments 
 and alterations in this branch of the law, so that it 
 is evident that marriage does not sit easy on the 
 people ; new and hard cases continually arise, and 
 new laws are made which do not help society out 
 of its perplexities. "We find, or think we find, such 
 looseness of procedure in the courts, such facility 
 in granting divorces and despatching, cases, im- 
 known elsewhere, that it seems as if laws and 
 courts multiplied the evils they were meant to re- 
 lieve. And it is certain that, in some States, the 
 increase in nmnber o£ causes for divorce, by in- 
 creasing the number of petitions for this privilege, 
 has made it necessary for the courts to become 
 more hasty and summary in their judgments. 
 
 But to what extent has there been an increase of 
 divorces in the United States ? The answer to this 
 question must be given by statistics, and unhappily 
 there has been, except in one quarter of the Union, 
 and in one State besides, no report of these made 
 to the Legislature ; or, if made, published. Only 
 in New England, which is generally believed to be 
 the most intelligent, moral, and religious portion 
 of the country, and in Ohio, has this been done ; 
 and the data thus furnished to the public- are far 
 from complete, being obtained in two of the States 
 by private search of the records of the connty courts, 
 
m THE mOTED STATES. . 225 
 
 and in the others not going back, at the farthest, 
 more than about thirty years. We be^in with Con- 
 necticut, because the number and increase of di- 
 vorces there first became notorious, and because 
 this was the first State, I believe, to give its tables 
 of divorces, compared with the marriages, to the 
 world. In fact, attention had been, at an early 
 period, called to the alarming number and increase 
 of divorces in that commonwealth, which, when 
 compared with the state of thir^gs since then, 
 would seem to have called for no cause for alarm. 
 
 Dr. Trumbull, the historian of the State, says- 
 that 439 divorces had been granted in a century 
 preceding 1785, all of which, except 50, had been 
 petitioned for within fifty years. But, if he had 
 said within thirty years, that is, between 1755 and 
 1785, 389 divorces, or 14.6 per annum, would not 
 be a very large number within a period the first 
 year of which showed a population of 133,000, and 
 the last, of 219,000. Dr. Dwight, in his sermon 
 on divorce, preached, if I err not, before the 
 Legislature, and probably between 1810 and 1815, 
 says "that in the town of 'New Haven, with- 
 in five years more than fifty divorces had been 
 granted ; at an average calculation, more than four 
 hundred in the State during this period — that is, 
 one out of every hundred married pairs." (" The- 
 ology," vol. iv., 374). That is, at the county seat of 
 l^ew Haven county, ten divorces were granted an- 
 nually, or eighty in all the counties of the State, 
 10* 
 
226 piVOECE AND LAW OF DIVOECE 
 
 . whicli last estimate is probably too large. If the 
 expression denotes "one out of every hundred 
 marriages per annum," the statement would be too 
 large for a population of about two hundred and 
 sixty thousand ; if it denotes one divorce per an- 
 num to every one hundred families in which both 
 husband and wife are living, this again would be 
 a great error; it would require more than fom* 
 hundred divorces per annum. But the statement 
 assigning ten divorces to one-eighth of the State, 
 or eighty to the entire State, may not have been 
 very much out of the way. 
 
 The demand for larger liberty of unloosing the 
 marriage tie went on growing for a number of 
 years, until the existing legislation did not satisfy 
 the wants of the people. In 1843, habitual intern 
 perance and intolerable cruelty were added to the 
 earlier causes of divorce, and in 1849 there were 
 three additional ones: sentence to imprisonment 
 for life ; any infamous crime involving a violation 
 of conjugal duty ; and any such misconduct as per- 
 manently destroys the happiness of the petitioner 
 and defeats the purpose of the marriage relation. 
 This last cause, as we have already had occasion to 
 say, was stricken out of the law in 1878, having 
 had twenty-nine years of trial in which it clearly 
 showed its baneful influence. 
 
 In an article of the New Englcmder for July, 
 1866, Eev. Henry Loomis sets forth the working 
 of these additions to the law, especially of the last 
 
m THE UNITED STATES. 
 
 227 
 
 clanse, in these words : " During a period of fif- 
 teen years nearly four thousand divorces have been 
 granted, a number equal to one-twentieth of all the 
 families in the State." And, again, he says that in 
 the evidence presented to a committee appointed 
 by the Legislature ia 1865, to take into considera- 
 tion a recommendation of the Governor for the 
 reform of the divorce laws, an opinion is given to 
 the effect that "of the four thousand divorces 
 granted in this State during the last fifteen' years, 
 more than half have been secm-ed through the in- 
 fluence direct or indirect of this general misconduct 
 clause. In a vast number of cases," the wiiter adds, 
 '•' in which the evidence would have been insufficient 
 which related to the particular offence alleged in 
 the suit, the additional claim urged by the counsel, 
 that the ' happiness of the petitioner had been de- 
 stroyed, and the end of the marriage relation de- 
 feated,' had been sufficient to secure a decree of 
 divorce." We refer for other important considera- 
 tions to a passage from the article of Mr. Loomis, 
 inserted in our appendix. 
 
 The same writer gives tables of divorce in the 
 State for eleven years — taken, as we understand, 
 from the records of the counties : 
 
 Tears. 
 
 1849 
 
 IGuO 
 
 1851 
 
 1S53 
 
 Divorces. 
 
 91 
 
 139 
 
 165 
 
 159 
 
 Tears. 
 
 ■1855 
 
 1856 
 
 1857 
 
 1858 
 
 1859 
 
 Divorces 
 
 308 
 
 315 
 
 333 
 
 356 
 
 1S53 . 
 
 186' 
 
 299 
 
 1854 
 
 316 
 
 
228 
 
 DITOECE AND LAW OF DIVOECE 
 
 The rapid increase in these years tells its own 
 story. The " incompatibility of temper clause," or 
 omnibus clause, as it was called, passed in 1849, 
 began to operate speedily after. 
 
 In 1865 the clerks of the Superior Court were 
 required, at the "end of each term, to return the 
 number and causes of divorces granted at such term, 
 to the State Librarian, whose duty it was made to 
 tabulate and publish them in his annual report 
 (with marriages, bii'ths, and deaths). "We here give 
 the returns for divorces, marriages, and the ratios 
 for each year of divorces to marriages for twenty- 
 one years from 1860 : 
 
 Tear. . 
 
 Divorces. 
 
 Marriages. 
 
 Ratios. 
 
 I860 
 
 310 
 
 375 
 357 
 391 
 426 
 404 
 488 
 459 
 478 
 491 
 408 
 409 
 464 
 457 
 493 
 476 
 396 
 437 
 401 
 316 
 . 332 
 
 3.978 
 3,757 
 3,701 
 3,467 
 4,107 
 4,460 
 4,978 
 4,779 
 4,734 
 4,754 
 4,871 
 4,883 
 5,303 
 4,841 
 4,694 
 4,385 
 4,320 
 4,319 
 4,315 
 . 4,345 
 4,641 
 
 1 1" 1 9 sa 
 
 1861 
 
 
 13.70 
 
 1863 
 
 14 44 
 
 1863 
 
 11 90 
 
 1864 
 
 9 64 
 
 1865 
 
 11 04 
 
 1866 
 
 10 19 
 
 1867 
 
 10 09 
 
 1868 
 
 9 9 
 
 1869 
 
 9 5 
 
 1870 .' 
 
 11 9 
 
 1871 
 
 11 93 
 
 1873 
 
 11 20 
 
 1873 
 
 10.06 
 
 1874 
 
 9 54 
 
 1875 .. 
 
 9 31 
 
 1876 
 
 10 9 
 
 1877 
 
 11 11 
 
 1878 
 
 10 76 
 
 1879..; 
 
 13 74 
 
 1880 : 
 
 13 08 
 
 
 
 Total 
 
 8,457 
 
 . 93,511 
 
 1 11.06 
 
 
 
 
m THE UiaTED STATES. 
 
 229 
 
 On these statements we may remark: (a) that 
 the increase caused by the incompatibility clause 
 of 18$9 continued on the whole until 18T9, when 
 this part of the law was repealed ; (5) that divor- 
 ces decreased in the years of war 1861-1863 ; (c) 
 that. marriages ran up after the war ended in 1865, 
 as was to be expected ; and that in the last years 
 marriages fell in number below their former ratio 
 to population. The influence on marriage of the 
 disastrous financial year, 1873, may have been con- 
 siderable on marriages for several years afterward. 
 
 The petitions for divorce, granted to the husband 
 and the wife from 1869 to 1879, were as follows : 
 
 Tear. 
 
 Husband. 
 
 Wife. 
 
 Year. 
 
 Hasband. 
 
 Wife. 
 
 1869 
 
 160 
 
 818 
 
 1875 
 
 148 
 
 338 
 
 1870 
 
 164 
 
 827 
 
 1876 
 
 99 
 
 297 
 
 1871 
 
 131 
 
 278 
 
 1877 
 
 120 
 
 307 
 
 1873 
 
 141 
 
 333 
 
 1878 
 
 115 
 
 286 
 
 1873 
 
 183 
 
 273 
 
 1879 
 
 94 
 
 223 
 
 1874 
 
 123 
 
 363 
 
 
 
 
 That is, one thousand five hundred and seventy- 
 eight divorces were granted on petitions of hus- 
 bands, and three thousand three hundred and 
 twenty-two on petitions of wives ; those of the lat- 
 ter being almost twice as many as of the former:'- 
 
 The causes for the petitions, given in the reports 
 submitted to the Legislature, are so little worthy of 
 reliance, that I shall not trouble my readers by re- 
 peating them here. The State Librarian, whose 
 duty it was until quite recently to report on divor- 
 
230 
 
 DrvoEcae amj law of divoece 
 
 ces and marriages, remarked in the report . for 
 1869, that " the tables for alleged causes of divorce 
 are unworthy of trust, because the true cause and 
 that only is not always to be discovered by the 
 record." And he adds that in the counties of Hart- 
 ford and New Haven the records show an average 
 of 2.47 causes for each divorce. Sometimes, if not 
 often, adultery is made one of the auxiliary caiises, 
 so to speak. In one case I myself happened to 
 know that the lawyer inserted this crime in the 
 petition without the petitioner's knowledge. 
 
 The ratio of divorces to marriages in the several 
 counties of the State is as follows for the years 
 1868 to 1879 inclusive : ■ 
 
 Hartford 1 : 13.46 
 
 New Haven 1 : 8.28 
 
 New London.. 1: 8.40 
 
 Fairfield 1 : 8.60 
 
 Windham. . 
 Litchfield . . 
 Middlesex . 
 Tolland 
 
 1 : 8.47 
 1 : 8.55 
 1 : 10.75 
 1 : 6.50 
 
 Second. — Divorce in Massachusetts. In the first 
 edition of this work, published in 1868, we were able 
 to give tables for two or three years only in relation 
 to divorce, which turned out also to be inaccurate. 
 In 1880 this deficiency was made up by the ex- 
 cellent report on divorces in Massachusetts for the 
 years 1860-1878, prepared under the direction of 
 the Chief of the Bureau of Statistics of Labor, 
 CaiToU D. Wright, Esq., and published as Part PV". 
 of his report for 1880. 
 
 It seems desirable to bring together the more 
 important changes or additions in the laws relating 
 to the causes of divorce. In 1786 separation a 
 
IN THE UNITED STATES. 231 
 
 mensd was introduced, and in 1867 was thenceforth 
 prohibited. At first separation was allowed for 
 extreme cruelty; in 1810 it was allowed for the 
 husband's desertion, his extreme cruelty as before, 
 and his neglect to provide for the wife's mainte- 
 nance. In 1836 imprisomnent became a cause of 
 divorce, and the wife's desertion a cause for sepai-a- 
 tion. In 1838 desertion for five consecutive years 
 became a cause admitting of full divorce ; and in 
 1850 full divorce could be had, when a husband or 
 wife separated. from the other party to join a reli- 
 .gious society which held the matrimonial relation 
 to be unlawful. By 1860 the two original causes 
 for full divorce had grown to five, and there were 
 two causes for separation open to both parties, and 
 one cause besides open only to the wife. Li 1860, 
 habits of intoxication, and cruel or abusive treat- 
 ment were added to the causes for separation. 
 In 1867 the judges were authorized to enter decrees 
 of divorce at first as decrees nisi, to be made 
 absolute after six months. In 1870, as we have 
 said before, separation was prohibited and divorce 
 put into its place. There were also important 
 changes touching decrees nisi which we omit to 
 mention. In 1874 decrees nisi, were in part 
 omitted and other legislation took place in regard 
 to this procedure of the cotuis. In 1877 a provi- 
 sion authorizing jury trials in divorce suits was 
 repealed. (Comp. C. D. Wright, u. s., 222-225.) 
 The causes for divorce, as they now exist, are 
 "MiEferyj'iinpbtency" [without respect tb the time of 
 
232 
 
 DrVOECE AND LAW OF DIVOKCB 
 
 its beginning], extreme cruelty, utter desertion 
 for three consecutive years next prior to the filing 
 of the libel, gross or confirmed habits of intoxica- 
 tion, cruel and abusive treatment, the husband's 
 refusal or neglect to provide suitably for his wife ; 
 also joining a religious society which denies the 
 lawfulness of the marriage relation, and remaining 
 a member of the same for three years — in all, eight 
 causes. Kemarriage after divorce may be allowed 
 by the Supreme Court if the divorce had been 
 granted in the United States. 
 
 The marriages and divorces, and the ratios be- 
 tween them, are given in the following table : 
 
 Years. 
 
 Marriages. 
 
 Divorces. 
 
 Ratios. 
 
 I860. . 
 
 13,404 
 10,973 
 11,014 
 10,873 
 13,513 
 13,051 
 14,428 
 14,451 
 13,856 
 14,826 
 14,721 
 15,746 
 16,143 
 16,437 
 15,564 
 13,663 
 13,749 
 13,758 
 13,893 
 
 343 
 
 334 
 
 196 
 
 307 
 
 370 
 
 333 
 
 393 
 
 383 
 
 339 • 
 
 339 
 
 379 
 
 335 
 
 343 
 
 449 
 
 647 
 
 577 
 
 535 
 
 553 
 
 600 
 
 1 : 51 
 
 1861 
 
 1 : 46.8 
 
 1863 
 
 1 : 56.2 
 
 1863 
 
 1 : 53.5 
 
 1864. 
 
 1 :46 3 
 
 1865 
 
 1 : 39.3 
 
 1866 
 
 1 : 36.8 
 
 1867 
 
 1 :51.3 
 
 1868 
 
 1 : 40.8 
 
 1869 
 
 1 :43.7 
 
 1870 
 
 1 : 38.8 
 
 1871 
 
 1 : 48.4 
 
 1873 
 
 1 : 47.1 
 
 1873 
 
 1 : 36.6 
 
 1874. 
 
 1 : 34.1 
 
 1875 
 
 1 : 33.6 
 
 1876 
 
 1 : 34,3 
 
 1877 
 
 1 : 33.1 
 
 1878 
 
 1 : 31.4 
 
 
 
 Total 
 
 359,061 
 
 7,333 
 
 1 : 35.8 
 
 
 
m THE UliTITED STATES. 
 
 233 
 
 The Massachusetts tables differ from those of 
 Connecticnt in this — ^that the former show an in- 
 crease of divorces from 1860; while the latter, 
 in the ratio of divorce to marriage, had nearly 
 reached their maximum before that year. In 
 other respects the two agree. In both the war 
 shows its working in the few marriages during, 
 and their increase after the war ; and in both their 
 decrease in the years after the financial difficulties 
 of 1873. But in both also the decrease of the 
 marriages must be due to wider and more lastiug 
 causes. 
 
 The divorces for the counties of Massachusetts, 
 in the order of their infrequency, are thus exhibit- 
 ed by Mr. "Wright : 
 
 Korfolk...... 
 
 
 43.6 
 
 Hampden . i 
 
 
 31.5 
 
 Franklin 
 
 
 30.1 
 
 Essex 
 
 
 21.0 
 
 Worcester 
 
 
 27.4 
 
 riymbuth 
 
 
 20.9 
 
 Berkshire 
 
 
 25.4 
 
 Barnstable 
 
 
 20.8 
 
 Middlesex 
 
 
 24.6 
 
 Hampshire 
 
 
 20.5 
 
 Bristol 
 
 
 23.5 
 
 Sufeolk 
 
 
 19.6 
 
 The lowest in the average contains the large city 
 of Boston. 
 
 It is remarkable as showing how local many of 
 the sources of evil are, or how fashions in applying 
 for divorce prevail, that the counties differ decid- 
 edly in the causes for. which divorce is granted. 
 "The granting of an unusual number of applica- 
 tions for divorce on the ground of cruel treatment 
 made 1877 the leading year in the counties of 
 
234 DivoEOE Airo law of DrvOBCE 
 
 Essex and Bristol; ■while an unaccountable pre- 
 dominance of decrees for desertion gave 1878 the 
 lead in the counties of Hampshii-e, Hampden and 
 Plymouth." The two years after the war brought 
 adultery forward as a prominent cause of divorce 
 in many of the counties. Essex has a popula- 
 tion less by 60,000 than Middlesex, yet it led the 
 latter largely in separations for intoxication and 
 extreme cruelty. "Worcester, fourth in rank 
 among the counties in population, surpasses all in 
 divorce for the. husbands' refusal to support the 
 wife." 
 
 Of the 7,233 divorces granted in the nineteen 
 years included in Mr. "Wright's tables, 4,833 were 
 granted on the wife's complaint, and 2,400 on the 
 husband's, following the same ratio of 2 to 1 which 
 we found to exist in Connecticut. The causes are 
 often more than one in the same libel. Mr. Wright 
 reduces them thus r 
 
 3,013 for desertion. 
 
 2,949 for cruelty. 
 
 452 for intoxication. 
 
 375 for extreme cruelty. 
 
 223 for cruel and abusive treatment. 
 
 154 for neglect to provide. 
 
 60 for imprisonment at hard labor. 
 
 17 for impotency. 
 
 " Only 3,016 of these 7,233 were granted for 
 causes that would have been valid half a century 
 ago." The effect of law on divorce is strikingly 
 
m THE trNTTED STATES. 
 
 235 
 
 sliown by the following particular especially : " De- 
 sertion was not admitted as a cause for divoi-ce until 
 1838, and not nntil after 1857 could it be used to 
 any considerable extent. Now it is the cause in 
 the libels of 1,950 women and 1,063 husbands, or 
 on the whole constitutes ^| of all causes alleged in 
 the libels. It may be regarded, however, as prob- 
 able that suits by the husband for the desertion of 
 the wife often find their origin in the character 
 of cruel or shiftless husbands, and that desertion is 
 increased in. frequency by the fact of removing 'to 
 remote parts of the Union. 
 
 The causes for divorce on the libels are thus di- 
 vided between the sexes : 
 
 
 On husband's com- 
 plaiat. 
 
 On wife's. 
 
 Adultery 
 
 1,295 
 1,063 
 35 
 00 
 00 
 00 
 49 
 6 
 
 1,654 
 
 Desertion 
 
 1,950 
 417 
 
 
 
 375 
 
 Cruel and abusive treatment 
 
 223 
 
 154 
 
 
 1 
 
 
 11 
 
 
 
 
 2,400 
 
 4,833 
 
 
 Mr. "Wright mentions the fact that "vdves, of 
 late, are using the opportunities afforded by the 
 law much more freely than in earlier years ; " so 
 that "in the first five years covered by the figm-es, 
 
236 
 
 DIVOEOE AND LAW OF DIVOECE 
 
 about 64 per cent, of the divorces were gi-anted to 
 women, while in the last five years the percentage 
 in their favor is very nearly 71. Of late they are 
 getting nearly half the divorces granted at their 
 instance on charges that practically the courts could 
 not receive until since 18T3." 
 
 " The sum of divorces for adultery and desertion, 
 for which practically the sexes are " on equal foot- 
 ing, is 5,963, of which a trifle more than sixty per 
 cent, were granted 'on the wife's complaint, and a 
 trifle less than forty per cent, on the husband's com- 
 plaint." " For all other causes of divorce 1,271 
 decrees were decreed, of which 33 per cent, were on 
 the libel of husbands." 
 
 The increase of divorces is accompanied in Mas- 
 sachusetts by an increase in the number of the 
 leading crimes against chastity and infant life. Mr. 
 Wright's report for 1880 contains the following 
 table of such crimes : 
 
 
 1860-1864 
 
 ' 1875-1879. 
 
 
 135 
 
 3 
 
 18 
 
 243 
 16 
 31 
 
 367 
 
 
 18 
 
 
 50 
 
 Fornicafcion 
 
 934 
 
 Rape 
 
 28 ' 
 
 
 118 
 
 
 
 The very considerable increase of this class of 
 
IN THE TTNTTED STATES. 
 
 237 
 
 crimes is far beyond the increase of proportion. 
 Tliis may be apparent only, and be really due. to 
 increase of vigilance of officers of the law. One of 
 these crimes — abortion — is difficult of detection, 
 and is probably far more frequent than for- 
 merly. 
 
 Third. — ^Ehode Island. The causes for granting 
 divorce in this State are impotency ; extreme 
 cruelty ; wilful desertion for five years, or for a 
 shorter time, at the court's discretion ; continued 
 drunkenness ; neglect to provide for a wife ; any 
 gross misdemeanor or wickedness repugnant to, or 
 in violation of, the marriage contract. 
 
 • Divorce from bed and board may be granted for 
 any cause for which absolute divorce may be 
 granted, until reconciliation, and for such other 
 causes as may seem to require them. 
 
 We have returns for 1869-18Y2 of divorces and 
 marriages only; but for 18Y3-1879, of applications 
 •for divorce, whether refused continued or with- 
 drawn, or granted : 
 
 
 Marriages. 
 
 Divorces. 
 
 Batioto 
 Marriage. 
 
 1869 
 
 3.289 
 2,363 
 2,537 
 2,366 
 
 162 
 200 
 161 
 200 
 
 1 ■ 14 
 
 1870 ..- , 
 
 1-18 
 
 1871 
 
 1-14 5 
 
 1873 
 
 1 • 13.7 
 
 
 
238 
 
 DIVOECE AND LAW OF' DIVOECE 
 
 1873-1879. 
 
 
 1 
 
 it 
 
 o> 
 
 IS 
 
 
 fa 
 
 s 
 
 a 
 S 
 
 
 1873 
 
 2,630 
 
 2,541 
 2,485 
 2,258 
 2,282 
 2,324 
 
 '261 
 
 270 
 227 
 254 
 257 
 258 
 255 
 
 88 
 34 
 69 
 58 
 79 
 62 
 9 
 
 173 
 243 
 158 
 196 
 178 
 196 
 246 
 
 1 ; IS 9 
 
 1874 
 
 
 10 8 
 
 1875 
 
 15.7 
 
 1878 
 
 11.5 
 
 1877 
 
 138 
 
 1878 
 
 11 
 
 1379 
 
 9.7 
 
 The population in 1870 was 212,219. Thus, the 
 mean ratio of divorce to population would be about 
 1 to 1,220. In 1880, when the population was 
 270,528, it would be, including also 1869-1871, 
 1 to 1,313. 
 
 Rhode Island is the only State, so far as I am 
 informed, which publishes the complete action of 
 its courts in applications for divorce — ^knowledge 
 most important for enabling the public to pass a 
 judgment on the thoroughness of the decrees of the 
 judges. 
 
 Fourth. — Vermont. The causes of divorce here 
 are adultery ; confinement to hard labor in the 
 State Prison for life, or for three years or more, the 
 person being actually confined at the time, and no 
 pardon can restore such person to conjugal rights; 
 intolerable severity in either party ; wilful desertion 
 for three consecutive years, or absence for seven 
 
rsr THE xnriTED states^ 
 
 239 
 
 years witliont being heard from; tlie Irasband's 
 wanton, neglect or refusal, when he has the pecu- 
 niary ability, to provide for his wife. 
 
 No divorce can be decreed for any cause, if the 
 parties never lived together as husband and wife 
 in the State, nor for a cause which accrued, in an- 
 other State or countiy, unless the parties had, be- 
 fore such cause accrued, lived together as husband 
 and wife in this State ; nor for a cause which ac- 
 crued in another State or country, unless one of the 
 parties then lived in this State. 
 
 The ensuing table embraces marriages and 
 divorces for the years 1860-18Y8 inclusive : 
 
 Tears. 
 
 Divorces. 
 
 Marriages. 
 
 Batio. 
 
 1860 
 
 94 
 65 
 94 
 102 
 98 
 132 
 155 
 159 
 167 
 148 
 164 
 203 
 146 
 175 
 170 
 171 
 168 
 175 
 197 
 
 2,179 
 2,188 
 1.964 
 2,007 
 1,804 
 3,569 
 3,001 
 2,857 
 2,961 
 2,621 
 2,928 
 2,742 
 2,749 
 2,714 
 2,724 
 3,709 
 2,602 
 2,615 
 2,766 
 
 1 : 33.2 
 
 1861 
 
 1 : 33.7 
 
 1862 
 
 1 : 20.89 
 
 1863 ; 
 
 1 : 19.67 
 
 1864 
 
 1 : 18.41 
 
 1865 
 
 1 : 21.06 
 
 1866 
 
 1 : 19.36 
 
 1867 
 
 1 : 17.96 
 
 1868 
 
 1 : 17.77 
 
 1869 
 
 1 : 17.57 
 
 1870 
 
 1 : 17.85 
 
 1871 
 
 1 : 13.50 
 
 1872 
 
 1 : 18.88 
 
 1873 
 
 1 : 15.51 
 
 1874 
 
 1 : 16.12 
 
 1875 -. 
 
 1 : 15.84 
 
 1876 
 
 1 : 15.73 
 
 1877 
 
 1 : 1493 
 
 1878 
 
 1 : 14.0 
 
 
 
 
 2,775 
 
 48,698 
 
 1 : 17.6 
 
240 DIVOECE AND LAW OF DIVOECE 
 
 The ratio for tHe first seven years is 1 : 21.5 ; for 
 the last seven, is 1 : 15.6. 
 
 In seventeen years the hnsband is libellant in 
 791 eases, the wife in 1,447, or nearly as in Massa- 
 chusetts. The principal causes are adultery (632 
 cases), desertion (931 cases), intolerable severity, 
 (683), refusal to support, (137). 
 
 Fifth. — !New Hampshire. The cause for which 
 divorce may be decreed in this State are im- 
 potency ; adultery ; extreme cruelty ; imprisonment 
 for crime for more than one year ; injury to health, 
 or endangering reason of complaining party by the 
 other party ; three years' absence ; habitual drunk- 
 enness ; joining a sect holding marriage to be un- 
 lawful, and refusal to cohabit ; desertion and re- 
 fusal to cohabit, without consent of the other 
 party, for three years ; absence of a husband, or 
 of a wife of a citizen, for three years ; departure of 
 a wife from the State without consent of her hus- 
 band, or claim on his part of marital rights for two 
 years ; absence of an alien or citizen of another 
 State from his wife residing here for three years, 
 he intending to become a citizen of another cotmtry, 
 and having made no provision for his wife's support. 
 
 No changes have been introduced into the 
 divorce legislation of IS". Hampshire, except an un- 
 important one in 1867, since 1854. ■ 
 
 ITew Hampshire has published no statistics of 
 divorce ; but Eev. Dr. Leeds, of Hanover, who with 
 others has made examinations of county registers. 
 
IN THE TJUTTED STATES. 241 
 
 has kindly furnished me particulars which may 
 help to form a judgment of the number of divorces 
 in the entire State. 
 
 In seven out of ten of the counties comprising 
 the State, which contain eighty-four per cent, of 
 the population, the divorces were, in 1870, 138 ; and 
 in 1878, 201. In six counties, comprising 71 per 
 cent, of the population, they were, in 1860, 72 ; in 
 1870, 128 ; and in 1878, 184. In four counties, con- 
 taining 55 per cent, of the population in 1840, the 
 divorces were 24, 108, and 127, in 1840, 1870, and 
 1878 respectively. Assuming that 1878 was not 
 an exceptional year, and calculating for the State 
 from these partial data, we should, for the whole 
 State, reach the number of nearly 278 divorces, on 
 the basis of the seven counties ; on that of the six 
 counties, 259 ; on that of the fom*, 231 ; or, on an 
 average, 256, a large number, and even larger than 
 that of Connecticut. 
 
 An important result from our scanty data is that 
 neither changes in legislation nor growth of popu- 
 lation has caused the decided increase in divorce. 
 The State has grown but little since 1870, only 
 about 28,000. It is evident that an immoral habit 
 is here growing rapidly as in Massachusetts. 
 
 Sixth. — Maine. The causes for divorce here are 
 adultery and wilful desertion lasting three years, and 
 for separation, extreme cruelty of either party, and 
 a husband's refusal to provide for his wife. The 
 law also adds — as we have stated before — ^that the 
 11 
 
242 DrvoECE Airo law of divoece 
 
 Supreme Court may decree dissolution of marriage 
 when the judge deems it reasonable and proper, con- 
 ducive to domestic harmony, and consistent with 
 the peace and morality of society. But this power 
 is qualified by certain conditions of residence, etc. 
 
 According to Mr. Dike, who secured an examina- 
 tion of fifteen out of the sixteen coimties, there were 
 437 divorces in 18T8. He adds that four counties 
 increased their divorces as they then stood by more 
 than a third in 1881. Another statement, of a writer 
 unknown to me, makes the entire number of divor- 
 ces in 1878 to be 478, and adds that they were in 
 thirteen counties much more nimierous in 1880 
 than they were two years before. If this be so, 
 Maine may have the imenviable distinction of go- 
 ing beyond all the other New England States in 
 its looseness in this particular. 
 
 Seventh. — The only remaining State of which 
 statistics of divorce have been published is Ohio. 
 The causes for which divorce can here be granted 
 are bigamy, three years' wilful absence, adultery, 
 impotency, extreme cruelty, fraiidulent contract, 
 any gross neglect of duty, habitual drunkenness 
 for three years, imprisonment in a penitentiary if 
 the petition is filed at the time of the imprison- 
 ment, and divorce elsewhere. 
 
 In the first edition of this work, the tables for 
 three years, communicated by the accomplished 
 statistician of the State, Mr. Edward D. Mansfield 
 recently deceased, included the years from 1865 to 
 1867 inclusive, that is from July 1st of each year. 
 
m THE UNITED STATES. 
 
 243 
 
 The lists do not entirely tally with those which I 
 here publish for 1865-1874, and I give both lists. 
 
 Tear. 
 
 Marriages. 
 
 Divorces. 
 
 Ratio. 
 
 1865 
 
 22,198 
 
 30,479 
 
 [39,330] 
 
 38,231 
 
 28,910 
 
 35,459 
 
 34,637 
 
 26,303 
 
 26,460 
 
 36,678 
 
 *837 
 
 * 1,169 
 
 975 
 
 847 
 
 1,003 
 
 1,008 
 
 1,007 
 
 1,036 
 
 1,034 
 
 1,159 
 
 1 ; 2B.0 
 
 1866 
 
 18S7 
 
 
 26.0 
 30.0 
 
 1868 
 
 33 2 
 
 1869 
 
 23 38 
 
 1870 
 
 25.2 
 
 1871 
 
 22 9 
 
 1873 
 
 25.6 
 
 1873 i 
 
 2i5 
 
 1874 
 
 33.0 
 
 
 
 Average, (10 years) . . 
 
 368,575 
 
 10,055 
 
 26.7 
 
 I am informed that the ratio of divorces to mar- 
 riages in the year from July 1, 1878, to July 1, 
 1879, is 1 to 18, which would imply a considerable 
 increase since 1874. Another very interesting fact 
 is brought out by the differences hetween the coun- 
 ties. Mr. Mansfield in his report for 1865-66, says 
 that there are thirteen counties of the northeast- 
 ern quarter of the State, containing 410,000 inhabi- 
 tants, where there were 208 divorces, being one- 
 fourth of the whole number (837). This can hard- 
 ly be from the better administration of the law, 
 stttce those only can be divorced who voluntarily 
 apply for it. The reason can only be conjectured, 
 but if this class of statistics be continued through 
 some years, the prime cause of such inequalities 
 will be discovered. 
 
 * 939—1,109 second list. 
 
2M 
 
 DrVOECE AOT> LAW OF DIVOECE 
 
 The tables of 1878-9, supplied to me by Mr. 
 Dike, will aid in ascertaining the cause thus sought 
 for. In the twelve western counties settled bj 
 'New Englanders, especially from Connecticut, the 
 ratio of divorce to marriage is as 1 to 11 ; it is in 
 Cuyahoga County, 1 to 9.9 ; in Ashtabula, 1 to 8.5 ; 
 and in Lake County, 1 to 7. But in certain coun- 
 ties, where there is little or nothing of the New 
 England element, there is a very different state of 
 things. Thus, in Gallia County, where Welshmen 
 and Southerners form the bulk of the population, 
 the ratio is 1 to 50 ; and in Coshocton County 1 to 
 47. In counties where Catholics abound, this differ- 
 ence would be readily accoimted for. Can it be 
 doubted that in this case the habits of the race 
 causes the difference ? 
 
 We have a few particulars to add touching some 
 of the western towns. 
 
 First. — In Chicago or Cook County, 111., the 
 marriage licenses and divorce suits stand as fol- 
 lows, according to the examination of the Rev. 
 Charles Cavamo, Lombard, 111. : 
 
 
 Plvorce 
 snits. 
 
 Marriage 
 liceDses. 
 
 1875 .-... 
 
 536 
 444 
 474 
 487 
 607 
 831 
 
 5,006 
 4,625 
 4,569 
 
 1876 
 
 1877 
 
 1878 
 
 1879 
 
 4,829 
 5,466 
 
 1880 
 
 6,603 
 
 
 
•rcr THE UNITED STATES. ■ 245 
 
 Population in 1870, 298,977; in 1880, 503,304. 
 The ratio of divorces to population is 1 to 606, 
 nearly — a greater ratio than is elsewhere known 
 in the United States. 
 
 Second. — ^In St. Louis, there were 490 divorces 
 granted in 1879, a great increase on the numbers 
 up to 1876. The ratio to population is as 1 to 700 
 nearly, a truly enormous number, the population 
 being 350,522. 
 
 Third. — San Francisco, The divorces here, in 
 1880, were 333, and the population, by the census 
 of the same year, 233,956. The rate to popula- 
 tion is 1 to 702. 
 
 Before dismissing the subject of the actual con- 
 dition of divorce and the divorce legislation in the 
 United States, we desire to make two or three re- 
 marks. The ji/rst of these is that the story of 
 divorce told by the tables is too good a one, for 
 the reason that many of the marriages are made 
 between members of a church which allows no 
 divorce within its pale. We must therefore de- 
 duct the marriages of Catholics before we can say 
 with tolerable accuracy what ratio divorces and 
 marriages bear to one another in sects and classes 
 of people which do not condemn the dissoliition of 
 marriage altogether. This Dr. E". Allen, of Low- 
 ell, Mass., has sought to do in the June number of 
 the North American for 1880, by obtaining fi'om 
 Catholic bishops the number of marriages among 
 
246 
 
 DJTOECE AOT) LAW OF DIVOECE 
 
 their flocks, and deducting them from the State 
 tables. He finds the Catholic marriages in Massa- 
 chusetts to be about one-third of the whole ; in 
 Rhode Island to be more than a fourth ; in Con- 
 necticut a fourth; and in Vermont an eighth. 
 Those in Massachusetts were, in 18Y8, 3,978 ; in 
 Connecticut, 1,019 ; in Rhode Island, 646 ; and in 
 Yermont, 325. A table will present the effect of 
 these deductions more clearly to the eye : 
 
 1878. 
 
 Massachu- 
 setts. 
 
 Connecti- 
 cut. 
 
 Vermont. 
 
 Bhode 
 Island. 
 
 
 12.893 
 
 3,978 
 
 8,915 
 
 600 
 
 1 to 21.4 
 1 to 14.86 
 
 4,.315 
 1,019 
 3.296 
 
 '401 
 
 1 to 10.76 
 Ito 8.22 
 
 2,766 
 325 
 
 2,441 
 197 
 
 1 to 14 
 1 to 12.4 
 
 2,324 
 646 
 
 1,678 
 198 
 
 GabhoUc marriages 
 
 DifEerences 
 
 
 Pir.st ratio 
 
 1 to 11 8 
 
 
 1 to 8.5* 
 
 
 
 Second. — We find, from comparing the tables, 
 that the ratios of divorces to marriages in European 
 countries are far less numerous than those in any of 
 the United States, the tables of which have been 
 published. Thus, in France these ratios are, for 
 ten years, from 1860 to 1869, inclusive, 1 to 152.7, 
 and for the next five years, 1 to 151.9; while in. 
 
 * The results reached by these dedaotions of Catholic mar- 
 riages are, however, a little unfair, as not taJdng into 
 account the divorces of persons once Catholics, who have 
 thrown away their religion, and others, especially emigrants 
 from certain countries of Europe, that never had any. 
 
IN THE TOUTED STATES. 247 
 
 Massacliusetts, the ratio for all the years from 
 1860 to 1878 inclusive, is 35.81, more than four 
 times as great. The smallest rate ia the same 
 State is 51, ia 1860, or nearly three times as 
 great. The divorces in the kingdom of Saxony 
 for 1862-68 were 2,945, or 421 per annum— that 
 is, in a country containing, perhaps, 2,500,000 in- 
 habitants ; while the average for the same years 
 for Connecticut is 400 for not more than one-fifth . 
 of the same population. Comparisons might be 
 greatly extended, but we refi-aia. 
 
 Third. — The changes of legislation in the United 
 States are more rapid, and every change increases 
 the number of divorces. If there is any principle 
 in our legislation, it is not a moral one of reverence 
 for the most sacred institution of the family and 
 of married life, but it is a desire to afford relief 
 for cases that are nearly as pressing as those that 
 have relief afforded already. In France, the divorce 
 law has remained in force since 1816, while among 
 us there is no certainty, unless it arises from vexa- 
 tion with the changes of the past, that they may 
 not be added to or repealed within ten years. 
 
 Fourth. — The courts in some, at least, of the 
 States are chargeable with despatch and carelessness 
 of procedure. I may speak of this matter again. 
 I only say here that it is such in some States at 
 least as to admit of collusion, and that few cases 
 are withdrawn. In France, our tables tell us that 
 out of 43,486 demands for divorce in twenty-five 
 
248 DIVOECE AOT) LATV 05" DIVOECE 
 
 years, 32,532 only were granted, or Y5 out of 100. 
 "We have no tables of these rejected petitions, or 
 , libels, for the United States, except for Ehode Isl- 
 and, when about 89 per cent, were granted. 
 
 Fifth. — "What is the cause of the condition of 
 things here as far as it can be ascertained ? ' Here 
 one thing stands out prominently, and that is that 
 the commonwealths founded by the Puritans, and 
 the parts of other States settled by their descend- 
 ants, seem to be the chief abodes of divorces. That 
 portion of the coimtry which was settled by the 
 most moral and intelligent of all the settlers from 
 the Old World, which is at the liead of all religious 
 and educational enterprises now, where it is very 
 rare to see or know of divorced persons remarried 
 in respectable society, so that to a great extent they 
 are the lowest class in the community — that por- 
 ■ tion of the country, I say, which ought to set the 
 brightest example, is now cited to reveal its shame, 
 as being in this respect the most sinning and the 
 loosest. "What shall we say then ? Shall we say 
 that they could not govern the classes of society 
 most liable to make light of the marriage tie, when 
 society became mixed ? Or shall we say that their 
 ecclesiastical polity broke them up into indepen- 
 dent churches, and encouraged unduly freedom of 
 thought and disregard for a common standard of 
 action ; that this freedom begat individualism, and 
 this, agaia, weakened the family principle, and made 
 marriage less sacred than it had been before ? Shall 
 
IK THE tTNTTED STATES. 249 
 
 we say that to regard man-iage as a contract, and tlie 
 State as a contract, and nothing else, those precious 
 doctrines of a shallow philosophy, have injured the 
 power of growth of the most sacred and holiest 
 sentiments ? But we need not pursue our course 
 of thought further. It is more important and 
 closer to our subject if we consider, in the remain- 
 ing chapter of this essay, what is the duty of 
 Christian churches in regard to divorce, and to 
 suggest some hints on divorce legislation. 
 
 In closing our examination of statistical tables 
 of divorce in the United States, so far as they are 
 accessible, we desii-e to express our hope that when 
 new tables of moral statistics for other States of the 
 Union shall be published, they may be more full 
 and comprehensive than any that now exist. Be- 
 sides comparisons of divorces and marriages, the 
 caiises of the former, their increase or decrease, 
 their local peculiarities, their connection with crime, 
 the procedure and usages of courts, as tempt- 
 ing to application for divorce or deteriing from 
 them ; let us have, if possible, some tabulated in- 
 formation on points such as the followihg: rela- 
 tion of divorce to illegitimacy, its prevalence in 
 town and country, and among diiferent callings; 
 remarriage of divorced persons ; average number of 
 years of married life before divorce takes place; 
 ratio of divorces where there are no children to 
 11* 
 
250 DIYOECE AND LAW OF DIVOECE. 
 
 their number where there are children ; causes for 
 divorce in different countries compared ; influence 
 of national peculiarities on frequency of divorces ; 
 religious or confessional differences and national 
 traits, and whatever else is calculated to throw light 
 on the influence of divorce and divorce laws upon 
 the interests of society. 
 
Dtnr OF THE . CHTTECH TOWAED DITOECB. 251 
 
 CHAPTER VI. 
 
 DUTY OF THE CHTIRCH TOWAED DIVOECE— SOME 
 HIKTS ON DIVORCE LEGISLATION 
 
 Makeiage, as the origin of the family and of 
 organized society, would naturally have close rela- 
 tions to religion, morality, and law if there were no 
 revealed religion. But religion alone, even when its 
 precepts are clear and admitted by all, is not com- 
 petent to settle all the questions that grow out of 
 marriage, the family, and the kindred : the State 
 also, when it becomes strong and centralized, will 
 inevitably claim to itself the determination of 
 many questions touching property and succession, 
 and must have a definite opinion expressed in cus- 
 tom or in positive law, in regard to the lawfulness 
 of marriage in particular cases, the legitimacy of 
 children, and the right of terminating marriage by 
 divorce. There was a time since the Christian era 
 when ecclesiastical power wrested the right of 
 determining these questions from the State. When 
 marriage became one of the sacraments, with which 
 only the religious order had to do, questions touch- 
 
252 DUTY OF THE CHUECH TOWAED DIVOECB. 
 
 ing the lawfulness of marriage or of separation 
 between a lawful husband and wife, the legitimacy 
 of children and others involved in them canie to a 
 great extent into the clergy's hands. Hence it was 
 not strange that the important part of law relating 
 to testaments, intestate estates, legacies, and the 
 like, came also extensively under their control. In 
 Protestant couhti-ies the Keformation in the end 
 restored these powers to the State. ■ In Catholic 
 countries, the growth of executive power, the 
 effort after consistent and logical legislation, with 
 the increase of intelligence among the laity and 
 the influence of lay lawyers, contributed, together 
 with other causes, to the same end. 
 
 In these conditions of things there could not fail 
 to be collisions between lay power and ecclesiastical 
 power, between Church and State, and often be- 
 tween conscience enlightened or unenlightened and 
 law righteous or tyi-annical. The disputes on the 
 matter of civil marriage which have been going on 
 for many years in nearly every European country, 
 and have hardly ceased as yet, will give an example. 
 It was naturally a grievance for dissenters from an 
 established church to be obliged to have theii- mar- 
 riages solemnized by others than their own min- 
 isters ; the necessity also of legal authentication of 
 marriages induced the State to require official 
 registration of them by its own officers, and when 
 the age of free thinking arose, numbers wished to 
 avoid the ecclesiastical solemnities necessary for 
 
SOME imSTTS ON DIVOECE LEGISLATIOIT. 253 
 
 conforming to acts allowing civil marriage. Thus 
 there might be religious marriage, preceded or fol- 
 lowed by civil marriage, or even the latter without 
 the former. A law of the new German empire in 
 1875 requires such civil marriage, with answers to 
 certain questions showing the consent of the parties, 
 and proofs of their parents' consent also if they 
 are not legally capable to decide for theinselves. 
 After this the State considers them man and wife ; 
 and they are themselves of course free to have 
 their nuptials celebrated by a minister of religion. 
 But as the civU marriage is a necessity in this form 
 of it, prior to the religious, many religious Ger- 
 mans are greatly opposed to such civil marriage, 
 as tending to make the religious celebration super- 
 fluous. This certainly Would be exceedingly un- 
 desirable, but the State has a right to require proof 
 that every connection of this kind shall have some 
 legal sanction ; and those who are averse to being 
 united in marriage by a minister of religion ought 
 not to be shut out from the right of marriage be- 
 cause they are not Christian believers ; not to say 
 that such a measure might tend in some instances 
 to put concubinage into the place of honest wed- 
 lock. 
 
 The strife in this instance touches a point about 
 which religion has nothing decisive to say, and can 
 afford to let the State have its own course ; being 
 well able, if civU marriage takes away sacredness 
 from the institution, to make the greater efforts to 
 
254 DUTY OF THE CHTJECH TOWAUD DIVOECE. 
 
 uphold it according to the idea in the ]^ew Testa- 
 ment. But there are other points of high impor- 
 tance connected with marriage, where State Laws 
 and the teachings of the New Testament may come 
 into collision ; or where, if they do not actually 
 conflict. State law may tend to produce such a dis- 
 respect for religious opinion, as will do injury to 
 the church and to general morality. Here we re- 
 mark, first, that in regard to the entrance into the 
 marriage union — setting aside for the present the 
 case of remarriage after divorce — the two author- 
 ities will generally agree in Protestant countries ; 
 01-, if they do not, the disagreement will be com- 
 paratively unimportant, as relating to doubtful 
 matters of rare occurrence. In Catholic countries 
 the prohibited degrees, including those of consan- 
 guinity and those of affinity, may cause a conflict 
 between the two powers, as the State will naturally 
 open a wider door than church law allows. By re- 
 ducing the number of classes of prohibited degrees 
 the State gives permission to marry in all cases not 
 expressly mentioned, leaving the question of right 
 to each conscience, and this may be a cause of great 
 complaint.* But in Protestant countries little 
 
 * In France annta and nephews, uncles and nieces, brothers 
 and sisters-in-law, and cousins German may marry. There 
 were, according to M. Cadet, in 1861-18G5, marriages of aunts 
 and nephews, 284 ; of uncles and nieces, 849 ; of brothers-in- 
 law and sisters-in-law, 4,342; of cousins-g-erman, 16,805. 
 Under the last heading, however, since 1863 the marriages 
 between children of consins-german are included. The num- 
 
SOME HINTS ON DIVOBCE LEGISLATIOM'. 265 
 
 trouble of this kind is likelj to occur, unless the 
 law requires an established clergy to maiTy every 
 one legally entitled to demand their services. In 
 some Protestant countries, a marriage between a 
 man and his wife's sister is still forbidden by law. 
 But the general opinion seems to be that this con- 
 nection — which owes its prohibition only to a feel- 
 ing handed down from Catholic times, and to the 
 fact that such a relative is often an inmate in the 
 family of her sister — may be the best possible for 
 the deceased rnother's children. Yet in a corrupt 
 age law might be needed to prevent such a imion. 
 We come now to the very important subject of the 
 termination of marriage lawful originally by the 
 law of the State. If no such law existed, marriage, 
 being lawful at its beginning, would be indissolu- 
 ble. The chiirch could npt terminate it, because 
 civU obligations in regard to property and children 
 would still subsist. The Catholic church would 
 not wish to have it terminated, nor would the great 
 majority of Protestants differ from them, unless 
 
 ber of these marriages is 1.48 out of a hundred of all mar- 
 riages. 
 
 By the law of the German empire of February 5, 1875, 
 marriage is forbidden between relations in the ascending and 
 descending line, full and half brothers and sisters, step-parents 
 and step- children, parents-in-law and chUdren-in-law, between 
 parents andchildren by adoption, so long as the relation sub- 
 sists, and between a person divorced on account of his or her 
 adultery and the partaker of the crime, except that in the lat- 
 ter case dispensation to marry is allowable. 
 
256 DUTY OF THE CHtJECH TOWAED DIVOEOE. 
 
 the termination were due to the commission of a 
 particnlar crime committed by one of the marriage- 
 partners, and complained of by the other. But 
 nearly alJ modern Protestant States have been 
 obliged to provide for terminating this close union, 
 and in so doing have gone to the extreme of allow- 
 ing divorce and separation for reasons which most 
 Christians condemn. And from this position of 
 condemning the State, when it allows the marriage 
 tie to be dissolved on slight grounds, the Christian 
 church cannot in any of its forms recede, because 
 just here it believes that its judgment is based on 
 the words of Christ. 
 
 Let us consider here first where the points of 
 conflict between religious adherence to Christ's 
 words and the practice of the State in granting di- 
 vorces and separations will principally arise. And 
 first such conflicts will have little or nothing to do 
 with laws and judgments which declare marriages 
 in certain cases void ah initio / and indeed, the pro- 
 cess by which a legal end is put to such marriages 
 is called divorce by misnomer. The cases referred to 
 comprise marriages contracted against express laws 
 of the State, such, as those withiu forbidden de- 
 grees of relationship, as well as those contracted 
 through the fraud or violence of one of the con- 
 tracting parties, or in ignorance of an existing dis- 
 ability to fulfil one of the priucipal ends of mar- 
 riage. In the first of these cases there is no option 
 within the reach of the parties : the marriage can 
 
SOME HINTS on DirOECE LEGISLATIOIT. 257 
 
 never become a lawful or a moral one. In the 
 others the marriage is only voidable, and the party 
 imposed upon or deceived can waive objections, in 
 which case the essential point of mutual consent is 
 secured. 
 
 Besides these difficulties at the stage of entering 
 into the marriage relation there may be a religious 
 one, such as formerly existed, when mixed mar- 
 riages (between Catholics and Protestants) were for- 
 bidden by the Catholic Church, or allowed only 
 under severe restrictions. These marriages are now 
 very numerous where persons o£ different religious 
 confessions live promiscuously in the same terri- 
 tory ; and there is no absolute conflict in such cases 
 between Church and State. It is left for the most 
 part to the parties or their religious advisers to 
 make their agreements in regard to the religious 
 training of the children. 
 
 There have been also denominations which pro- 
 hibited their members from allying themselves in 
 marriage with persons who have made no profession 
 of religion. When this occurs, it calls for discipline 
 from the Cliurch holding such opinions of duty^ but 
 no great difficulty can arise ; the cases are sporadic, 
 and the person who is not a church-member will 
 generally be blessed by the union. But marriage 
 between a believer and an unbeliever or heathen 
 is forbidden in the New Testament. 
 
 We come, then, to the dissolution of marriage, 
 which can only be effected by the State, on the 
 17 
 
258 DUTY OF THE CHTJECH TOWAKD DITOBCE; 
 
 complaint of the injured party or by common con- 
 sent of husband and wife. Here the agency of the 
 State is simply permissme. It does not separate a 
 couple joined in legal marriage without the applica- 
 tion and desire of at least one of them. They can 
 forgive one another after the commission of the 
 gravest offences, and such condonation is accepted 
 by the courts as a bar to all future prosecution for 
 the same offence. Hence a divorce suit is not a 
 public process for a crime committed against the 
 State — although the cause for it may involve crime 
 against the State — but an inquiry whether a husband 
 or wife has So departed from the law of connubial 
 fidelity or duty as to allow their separation from 
 one another, in consistency with laws which were 
 intended either to secure the great interfests of so- 
 ciety, or to grant the request of one or both to be 
 freed from all legal bonds of wedlock. Thus there 
 are in form two kinds of divorce, one in which either 
 of the parties makes a petition to be divorced from 
 the other, and' a second kind in which both unite 
 in a petition on the ground of mutual aversion, or 
 incompatibility of temper, as it is called. All the 
 pleas for divorce may be reduced to one of these 
 two. 
 
 But are the two essentially different ? We think 
 not, and for these reasons : first, because the special ,^ 
 cause is often derived from some general estrange- 
 ment, and again, because the general estrangement 
 may be traced back to a special cause. Thus 
 
SOME HINTS ON DIVOECE LEGISLATION. 269 
 
 jealousy, or niggardliness as the wife thinks, or love 
 of dress or of company or undue expensiveness, as 
 the husband thinks, may begin a variance which 
 may not soon terminate. It would seem to be very 
 dangerous for the interests of, society to allow 
 causes like incompatibility of temper to have 
 weight in determining questions ■ relating to the 
 difficulties of married life, at least if they are al- 
 lowed by law to break asunder nuptial ties with no 
 hope of reconciliation. And if they could furnish 
 causes for divorce absolute, would they not furnish 
 also a temptation to make life uncomfortable to 
 wife or to husband through a desire of forming a 
 new connection. 
 
 As for specific causes, where they are of some 
 continuance, such as lasting drunkenness or cruelty, 
 or neglect to provide support, they may furnish 
 reasons for separation, but not for remarriage. The 
 temptation might be strong to make no efforts to 
 reclaim a husband now become unwelcome, if not 
 odious, in the hope or prospect of a new and more 
 fortunate marriage. 
 
 In view of considerations like these, may we not 
 affirm, with safety, that the welfare of a petitioner 
 iapplymg for full divorce is by no means the ex- 
 clusive point at which law is to aim. If marriage 
 is more than a contract, if it is a state or condition 
 of life in which the welfare of the whole of so- 
 ciety is involved, can we at all act on the princi- 
 ple that general rules ought never to press hardly 
 
260 DUTY OF THE CHUECH TOWAED DIVOECE. 
 
 in particular eases. If partnerships in business, by 
 tbe rash judgments of one member, may make 
 another utterly bankrupt, may not other unions of 
 two persons be attended with a like result. But may 
 there not be in general more evil done than good 
 if society inteirvenes to prevent the evil of mistakes 
 and misjudgments in particular cases ? May not 
 laws, holding out the hope of a new marriage, 
 multiply the evil of divorce at the great cost of in- 
 creasing the desire by the hope held out ? 
 
 As to the fact itself, that petitions for divorce 
 become more numerous with the ease of obtaining 
 them and the number of causes for which they can 
 be obtained, there can be, I think, no difference of 
 opinion, so long as leave to marry again is given in 
 the decree of the judge. We speak of divorce ab- 
 solute by itself, intending to consider separation 
 afterward. The tendency referred to is proved by 
 all the tables of statistics which are printed in this 
 essay, and by all the experience of courts and legis- 
 latures which have been made known to the world. 
 It is found by the history of legislation that, if 
 the principle is admitted of specifying particular 
 causes, there is effort after effort made to increase 
 the number of them, and with logical consistency ; 
 for the new causes differ too little from the old 
 ones to be shut out from legislation. The new 
 causes arise with the new habits, the new relax- 
 ations of morals, the decay of religion, the depreci- 
 ation of family institutions in a society that is grow- 
 
SOME HINTS ON DIVOECE LEGISLATION. 261 
 
 ing worse. The facility of getting divorces increases 
 tlie number; the number gives to divorced per- 
 sons a respectability which they had riot before ; 
 new cases, without the privilege of being on 
 the list of evils which courts can cure, make 
 appeals to have the doors open for them; until, 
 finally, the only consistent end is to come to mutual 
 consent as a vague cause, but one which may be as 
 tempting to many married couples in some new 
 state of feeling, as desertion or drunkenness was 
 before. We refer to the causes of divorce in Con- 
 necticut, which went on crescendo for many years ; 
 to those in Massachiisetts, where, in 1860, there 
 were five causes for divorce and a ratio of one 
 divorce to 51 marriages, and in 1878, nine causes 
 and a ratio of one divorce to 21.4 marriages. 
 It is certain that the same tendencies and results 
 show themselves in several Protestant countries of 
 Europe, although the ratio does not increase so fast 
 as it does among us. I grant, however, that there 
 may also be a tendency to a maximum, whether it 
 be owing to judicial stringency, or to legislation on 
 points accessory to divorce, or to an awakening of 
 the moral feelings of society. And in countries 
 where only separations, temporary or complete, 
 are allowed, the same increase, although not as 
 rapid, is perceived — witness France and Belgium, 
 as our fifth chapter shows. In France where sepa- 
 ration alone is granted and for adultery alone, the 
 ratio of separations to marriages in 1840 was about . 
 
262 DUTY OF THE CHUECH TOWAED DIVOECE. 
 
 1 to 440, but in 1874 and fonr previous years was 
 1 to 151.9. In Massachusetts, divorces ybr adnd- 
 tery alone in 19 years, 1860-1878, are to marriages 
 asl to about 88. 
 
 Tiie modern divorce legislation of nearly all 
 Protestant countries is unGhristian, by wliicb I 
 mean that it is for causes which derive no sanction 
 from the New Testament, and are not intended to 
 be conformed to the New Testament. I must ex- 
 cept from this charge that of England, of the State 
 of Hew York in a great degree, and that of a few 
 small territories. I am aware that such legislation 
 can be defended, on the ground that the State only 
 provides laws, and individuals avail themselves of 
 the power or legal right thus aiforded. It is some- 
 thing like the relation between the private person 
 and the license laws : you may drink whiskey every 
 day, and the law will not touch you until you are 
 drunk. You may get a divorce every year, and the 
 law will protect you, if you are innocent, by dis- 
 solving your marriage contract with the offending 
 party. I will not contend that the State is obhged 
 to do more than to protect the church or religious 
 communities in their legal rights, although it goes 
 actually beyond this to some extent ; but all who 
 believe that Christian faith and morals are neces- 
 sary for the well-being of a State must feel that 
 the purity of marriage demands every protection. 
 Suppose that morals were so loose and divorce so 
 easy, that one maiTiage out of three was dissolved 
 
SOME HINTS ON DIVOECE LEGISLATION. 263 
 
 on the gronnd of connubial infidelity, what -would 
 become of the State ? Would not a large pai"t of 
 the community say that they have learned by ex- 
 perience the inefficiency of law without religion 
 and desire to have religion protected by a new 
 code of laws, so that, if possible, the State might 
 be saved from' ruin ? Looked at fi-om the Chris- 
 tian stand-point, marriage is in its nature and idea 
 indissoluble. Looked at from a heathenish or athe- 
 istic stand-point, it is a contract which persons 
 badly joined together ought to be able to break 
 and enter into a new relation with other persons 
 with whom they can be satisfied. 
 
 This conception of m.arriage, as being in its 
 nature iTidissoluhle, and not to ie hrohen hut for 
 one sjpecifio ccncse, is not confined to the teaching 
 of Christ. Eoman lawyers define it as " consortium 
 omnis vitas ; divini et humani juris commimicatio ; " 
 and as "viri et niulieris conjimctio, individuam 
 vitse consuetudiuem continens." Philosophers and 
 historians add their testimony also in favor of mar- 
 riage as being all but indissoluble. Thus Hegel 
 (§ 161 of his " Grundlinien d. PhHos. d. Eechts"), 
 after condemning the exclusively physical view of 
 marriage, says " equally crude is it to conceive of 
 marriage as merely a civil contract, a conception 
 which occurs even ia Kant, in which case the ar- 
 bitrary will of the two parties exerts its control over 
 individuals [instead of beiag confined to things], 
 and marriage is degraded into the form of the 
 
264 DUTY OF THE CHUECH TOWAED DIVOECE. 
 
 mutual use of one another according to contract. 
 The third conception, which is equally to be 
 rejected, is that which makes marriage consist in 
 mere love; for love which is feeling, continually 
 gives room to the accidental, a form which the 
 moral cannot take. Marriage, therefore, when ac- 
 curately defined, is rightfully more than love ; and, 
 in this view of it, the freakish and merely subjec- 
 tive which is in it, disappears." 
 
 So also Mr. Hume expresses himself on the evil of 
 legalizing divorce as follows ("Philos. Works," iii., 
 208, Amer. ed.) : " We need not be afraid of draw- 
 ing the marriage knot the closest possible. The 
 amity between the persons, where it is solid and 
 sincere, will I'ather gain by it, and where it is wa- 
 vering and uncertain, it will be the best expedient 
 for fixing it. How many frivolous quari'els and dis- 
 gusts are there, which people of common prudence 
 endeavor to forget when they lie under the neces- 
 sity of passing their lives together, but which would 
 soon be inflamed into the most deadly hatred, were 
 they pm-sued to the utmost, under the prospect of 
 an easy separation. We must consider that noth- 
 ing is more dangerous than to unite two persons so 
 closely in all their interests and concerns as hus- 
 band and wife, without i-endering the union entire 
 and total. The least possibility of a separate in- 
 terest must be the source of endless quarrels and 
 suspicions. The wife, not secure of her estabhsh- 
 ment, will still be driving some separate end or 
 
SOME HINTS as DTVOECE LEGISLATION. 265 
 
 project, and the husband's selfishness, being ac- 
 companied with more power, may be still more 
 dangerous." 
 
 Mr. Gibbon is of the same way of thinking 
 (vol. v., chap, xliv., p. 55, Eohn's ed.) "A specious 
 theory is confuted by this free and perfect experi- 
 ment [at Rome], which demonstrates that the 
 liberty of divorce does not contribute to happi- 
 ness and virtue. The facility of separation would 
 destroy all mutual confidence, and inflame eveiy 
 trifling dispute ; the ininute difference between 
 a husband and a stranger, wMch might so easily 
 be removed, might still more easily be forgotten ; 
 and the matron, who in five years can submit to 
 the embraces of eight husbands, must cease to 
 reverence the chastity of her own person." 
 
 M. Paul Janet (in a work on the family, p. 60 et 
 seq.) writes thus, from the stand-poiat of a moral 
 philosopher : " In binding love by the bonds of 
 duty, in making it promise eternal fidelity, the 
 family does not act in contradiction to the nature 
 of love, but obeys rather its own nature. Eternity 
 so truly enters into the nature of love, that love 
 would not venture to ask anything or to give any- 
 thing without promising eternity. Its first acts 
 are always oaths of fidelity without end, and even 
 when it practises deception, it is obliged to use 
 feigned words, or it would obtain nothing. It is 
 urged that the heart has rights, and that the vows 
 of eternity are impossible. I acknowledge that 
 
266 DITTT OF THE CHTXECH TOWAED DIVOECE. 
 
 love has rights, even for the forming of the con- 
 jugal union, but it has none at all for dissolving it. 
 To the principle of the heart's liberty, we must 
 oppose that of the heart's fidelity; and herein we 
 assign to it an office more beautiful, and a glory 
 more pure, than if we claimed for it the privilege 
 of giving itself up to chance, and of changing its 
 object without ceasing. I confess that to require of 
 the heart an attachment which cannot be given up, 
 demands grave reasons. I discern two such, which 
 appear to me to be irrefutable : the dignity of the 
 wife, and the interest of the children." 
 
 Another Frenchman, M. Troplong, a president of 
 the court of cassation, and learned in Roman law, no- 
 tices, in the following words, the objection against 
 the indissolubility of marriage, that engagements 
 from which there is no release are rash and ought 
 not to be taken. "An engagement ought not to be 
 called rash which contains fidelity to an oath which 
 is authorized by the law, and is binding to the ful- 
 filment of duty. The aversion of liiodern society 
 to religious vows is explained in the eye of reason 
 only by their being contrary to nature; but the 
 promise of unchangeable fidelity in niarriage is not 
 contrary to nature. Very far from that — the en- 
 gagement not to break the chain is inherent in 
 marriage ; it is one of its natural conditions ; it is 
 that by which marriage is distinguished from con- 
 cubinage, and rises to the height of a sacred pub- 
 lic institution. Let no one then reason from the 
 
SOME HINTS ON DIVORCE LEGISLATION. 267 
 
 ordinary principles of public and private law, ac- 
 cording to which liberty is inalienable and impre- 
 scriptible. The nature of marriage repels such 
 reasons as being inapplicable. Marriage by itself — 
 by vii-tue of its destination, avowed, accepted and 
 acknowledged ; by virtue of its legitimate ends ; by 
 its influence on the family and the children — mar- 
 riage in its legal-political natural definition, is a 
 bond which binds the whole of Me, c&nsortmm 
 omnis vitoe. It is marriage, because it is not a 
 temporary tie, and because the two consorts give 
 themselves indissolubly to one another. Such is 
 its nature. And it is to show one's self opposed to 
 nature, when one claims for marriage that revoc- 
 able quality which belongs to rash vows. There 
 are no rash vows, save those which give the lie to 
 nature, but the vows which enter into nature's ends 
 are sacred." 
 
 I venture to make another extract touching the 
 indissolubility of marriage, as looked at on the 
 practical side. It is from a decision of Sir "W. 
 Scott (Lord Stowell afterward) in the case of 
 Evans v. Evans, as cited by " Coleridge on Black- 
 stone," 1,M0. He says : " It must be carefully re- 
 membered that the general happiness of the mar- 
 ] ied life is secured by its indissolubility. When 
 people understand that they nvust live together, 
 except for a very few reasons known to the law, . 
 they learn to soften, by mutual accommodation, that 
 yoke which they know they cannot shake off. They 
 
268 DTTTT OF THE CHUECH TOWAED DIVOECE. 
 
 become good husbands and good wives; for neces- 
 sity is a powerful matter in teaching the duties it 
 imposes. If it were once understood, that upon 
 mutual disgust married persons might become le- 
 gally separated, many couples who now pass through 
 the world with mutual comfort, with attention, to 
 their offspring, and to the moral order of civil so- 
 ciety, might have been at this moment living in a 
 state of mutual unkindness, in a state of estrange- 
 ment from their common offspring, and in a state 
 of most licentious and unreserved immorality. In 
 this case, as in many others, the happiness of some 
 individuals must be sacrificed to the greater and. 
 more general good." • 
 
 From these opinions in favor of the indissolubil- 
 ity of marriage, we return to the precepts of Christ, 
 which have given the law to usage in the Chris- 
 tian church. His words, "what God has joined to- 
 gether, let not man put asunder," are built on and 
 explain the early passage of the ancient scriptures, 
 "therefore shall a man leave his father and mother, 
 and shall cleave unto his wife, and they shall be 
 one flesh." These words are full of meaning. They 
 imply, first, that a man is to seek his wife not among 
 his very nearest of kindred, but away from home ; 
 then, that he is to have one wife, amd no more, for 
 how can a man be one flesh with two or a dozen 
 women at the same time ? Next, in the word cleame, 
 that the two are indissolubly one and not to be 
 separated ; which Christ qualifies by the exception, 
 
SOME HINTS ON DIVOECE LEGISLATION. 269 
 
 " saving for the case of fornication," " except for 
 fornication." -These words, and the passages in 
 which they are contained, we have already consid- 
 ered in. an earlier chapter of this essay. We make 
 here one or two additional remarks. The first is 
 that the exception involves the rightfulness of 
 marrying another woman (see Alford on Matt. xix. 
 9). Another is, that the words let not man, or let 
 not a man, put asunder, clearly denote that persons 
 so united according to the ordinance of God, are 
 not to be put asunder by a man — that is by human 
 ordinance. I refer to this, in order to mention the 
 sm-prising interpretation given by Lather, who held 
 that by a man, a private man, acting in his own 
 case, was intended. He was not to put away his 
 wife, but the prince, or law-making power, was 
 invested with that authority. It is enough to say 
 of this strange explanation, that it is set aside en- 
 tirely by the contrast between God, in " what God 
 has joined together," and man, in " let not a man 
 put asunder," where a man must clearly be under- 
 stood as a human being. Any man, not as a private 
 person, but as a man, whether magistrate or law- 
 maker, or any one who separates husband and wife 
 from one another, does so in contrast to God. And 
 BO, I suppose, it is now understood by all- respect- 
 able interpreters. 
 
 Equally exceptionable are Zwirigli's remarks on 
 Matthew xix. 1-9, the passage before us. He says : 
 "Christ's words here are so arid ('sec arida^) that 
 
270 DUTY OF THE OHUECH TOWAED DIVOECE. 
 
 it seems as if consorts can be separated for no cause 
 whatever. But here the Lord condemns the reck- 
 less divorce of the Jews, and not all divorce. 
 ' ISTeque unam duntaxat causam excipit, tametsi 
 unins tantum meminerit.' As if a law, declaring 
 that only murder shonld be visited with capital 
 punishment, could mean murder as a sample of a 
 number of other enormous crimes." This opinion 
 of the Swiss reformer is inet by the consideration 
 to which we may advert again, that adultery and 
 gross crimes bf unchastity practically destroy tlie 
 unity of a married pair, and the oneness of the flesh 
 on which Christ insists, in such a sort as no other 
 wrongs can. The relation is unique, and different 
 from any simultaneous lawful relation, and hence - 
 it is protected by a special commandment. Other 
 crimes may be greater, but the existence of the 
 family, and the general welfare of society, demands 
 that this should have a place by itself. 
 
 And yet we do not deny that the breach of this • 
 commandment, although the same in kind, is a 
 greater crime for a woman than for a man. When 
 she is the offender, it is an evU. within the family, 
 it may be attended with confusio sanguinis, it 
 destroys confidence and disgraces the household. 
 Hence the definition of adultery has been made 
 such in a number of codes as to include only those 
 crimes of unchastity in which a married woman is 
 a partaker. But althougli the evils differ in mag- 
 nitude, they are not unlike in kind, and, so far as 
 
SOME HINTS ON DIVOKCE LEGISLATION. 2Y1 
 
 the point of destroying the joy and confidence of 
 family life is concerned, the man's crime may often 
 Oe the most serious and tragic of the two. It may 
 je fairly made an objection against any code, that 
 it thus, in a certain sort, protects the man in his 
 breach of fidelity. By French law a husband must 
 be convicted on complaint of the wife of having 
 entertained a concubine in the ' maison conjugale.' 
 " Hors de la," says M. Cadet, " impimite complete ; " 
 and the same writer contends against the inequality 
 of punishment for wife and husband, when convict- 
 ed of this crime ("Mariage," pp. 197-199*). By 
 Prussian law (Landrecht, §§ 670-677), while the 
 husband guilty of adultery can successfully oppose 
 a complaint made by his wife, on the ground of her 
 committing the same offence, she cannot, to shield 
 herself, draw a plea from his guilt. This, we think, 
 is not an objectionable disparity. The inequality 
 already spoken of, as established by the English 
 statute (p. 174 v. s.), is more reprehensible. Kent 
 remarks (Com., vol. iii., § 27) that Montesquieu, 
 Pothier, and Dr. Taylor (" El. of Civil Law," p. 254) 
 insist that the cause of husband and wife ought to 
 be distinguished. 
 
 To return to the simple command given by 
 Christ, we need only say that as he permits, for one 
 
 * We are happy to be able to say that M. Naquet — see our 
 appendix and text, p.l6S — corrected this injnstioe of the law 
 in favor of the husband, in his project of a new divorce law 
 in 1876. 
 
272 DUTT OF THE CHPECH TOWARD DIVORCE. 
 
 cause and for one only, a separation with leave 
 to marry again, no Christian believer can hesitate 
 to take the steps which are justified by laws made 
 in conformity with Christ's authority. "What per- 
 sonal conviction, from evidence, ought to be enough 
 for the innocent party to avail himself of the right 
 of- separation, we need not stop to inquire. It is 
 needless to say more thpji'that if the court and his 
 own belief coincidoj^e may do what he thinks 
 right and proper in the case. He may forgive and 
 save, or may wait for the future to decide whether 
 by remarriage he would not ruin one who may 
 not hopelessly and incurably have passed beyond 
 the line of love and self-respect. But the CJiuroh 
 is bound to take cognizance according to its- rules, 
 of discipline founded on the word of &od. "I 
 wrote unto you in my epistle," says the Apostle 
 Paul, " to have no company with fomicators^but 
 I now write unto you not to keep company, if any 
 man that is named a brother be a fornicator, or 
 covetous, or an idolater, or a reviler, or a drunkard, 
 or an extortioner ; with such an one no not to eat." 
 The separation of the classes here spoken of until 
 repentance is not merely what the believers were to 
 do, if they thought it best for the interests of the 
 church ; but it is commanded, without exception, if 
 guilt is established, and until repentance is complete. 
 Nor are such considerations as courts would have a 
 right to use, such as similar guilt, nor a husband's 
 drunkenness and cruelty — driving a wife into a 
 
SOME HINTS ON DIVORCE LEGISLATION. 273 
 
 positive act of guilt — ^to have any weight in the 
 case. The rule of suspending from the sacrament 
 is imperative. 
 
 Another question still remains to be discussed: 
 How ought a chui-ch to act, in cases of which there 
 may be in a course of years a large number, if the 
 law allows absolute divorce for offences for which 
 the New Testament does not allow it. Shall the 
 church comply with the view of the civil law, or of 
 the New Testament ? "We have no hesitation in an- 
 swering with that of the New Testament. But we 
 cai^touch that point better when we have considered 
 the subject of. separation for other causes besides 
 adultery. "We have remarked that the tendency of 
 much of the legislation of modern times in Protes- 
 tant countries is demoraUzing. As long as the 
 causes of divorce were confined to adultery and 
 desertion, the harm done to society, and especially 
 to the church, was small. The churches erroneously 
 be-lieved that desertion was a cause for divorce 
 , justified by 1 Cor. vii. 16 ; and the man who de- 
 serted his wife for three years, would be likely to 
 be unfaithful also; while the wife who forsook 
 her husband, unless it were in guilty understand- 
 ing with another man, would generally find a justi- 
 fication for her act iu his cruelty. But State law 
 began to corrupt and demoralize the church in re- 
 gard to divorce. Everywhere in Protestant coun- 
 tries, except in England, and under a few other 
 codes of law, divorce for all offences which once 
 18 
 
274 DUTT OF THE CfftJEOH TOWAED DIVOECE. 
 
 liad oaly separation granted to them, or were not 
 provided with a remedy, was introduced : a mnlti- 
 tude of new causes for it came in to relieve wives 
 and husbands, and the old laws and opinions gave 
 way to new ones. Nothing is naore startling than 
 to pass from the first part of the eighteenth to this 
 latter part of the nineteenth century, and to observe 
 how law has changed and opinion has altered in 
 regard to marriage, the gi-eat foundations of soci- 
 ety, and to divorce ; and how, almost pa/ri passu, 
 various offences against chastity, such as concubi- 
 nage, prostitution, illegitimate births, abortion, dis- 
 inclination to family life, have increased also — not 
 indeed at the same pace everywhere, pr all of 
 them equally in all countries, yet have decidedly in- 
 creased on the whole. In some Catholic countries, 
 as France and Italy, this kind of immoral habits 
 had an easier growth, restrained though they were 
 by the influence of the church. In some Protestant 
 countries the evil grew slowly ; they were hajjpy 
 in living out of the stream of demoralizing influ- 
 ences. Voluptuousness and unbelief. In this west- 
 ern world, where there was a steady and honest 
 race of settlers, society was comparatively pure, 
 and laws did not for a time show any great signs 
 of change ; but our turn has come also, and with a 
 rapidity, within the last half-century, that shows 
 that we are quick to learn what is evU, and likely, 
 in . all appearance, to learn at a faster rate in the 
 future. The nature of our institutions renders this 
 
SOME HINTS ON DIVOECE LEGISLATION. 275 
 
 the more to be feared, since changes in law are easier 
 than in older countries, and civil procedure does 
 not to the same extent prevent groundless petitions 
 for divorce from gaining a favorable hearing from 
 the courts, and collusions from being successful. 
 
 "We need not repeat in this place the proofs 
 gathered together ia the fifth chapter, from the sta- 
 tistics of recent years, of the increases of divorce in 
 this country withia a generation. The same laws 
 which open the remedy of full divorce so freely, are 
 not stopped by the barriers of church discipline; 
 and especially where the censures of the church 
 proceed from the members themselves there is 
 danger of making within the church the law of the 
 land, and not the rules of the l^ew Testament, the 
 standard of discipline. From some evidence which' 
 the author has in his possession, he is satisfied that 
 few, if any, Congregational churches would know- 
 ingly vote to receive into their communion " a per- 
 son who has been divorced on account of his or her 
 adultery, and. has remarried." But I am constrained 
 to say that, to some extent, churches of this order 
 do receive — partly in ignorance perhaps — " a per- 
 son who has obtained a divorce on other grounds 
 than that named in the law of Christ, and has re- 
 married." This is probably the poiat where di- 
 vorce laws, allowing full divorce for a variety of 
 causes of which the [New Testament says nothing, 
 give the greatest anxiety to churches, and offer the 
 most insinuating temptations. Having g.o definite 
 
276 DUTY OF THE CHUECH TOWARD DIVOECE. 
 
 opinion themselves as to the right in the matter, 
 and seeing an opportunity to exchange a drunken 
 or cruel for a promising husband, not a few wo- 
 men who are church members get divorces on legal 
 grounds, with the second marriage, we fear, even 
 before their eyes, and it makes no scandal. They 
 are the innocent, legally justified parties, "and 
 they go to the Lord's table without scruple as 
 before. 
 
 One or two instances of considei'able notoriety 
 have occurred within the writer's knowledge, 
 where ministers of the gospel were involved in 
 suits for divorce which Christian views of mar- 
 riage could not justify. One of them was very 
 seriously tried by the bad temper and repeated de- 
 sertions of his wife, and had taken the first steps 
 for a judicial divorce, when he applied for admis- 
 sion into an association of ministers. Objection was 
 made to his admission, on the gi-ound of his hav- 
 ing sought this divorce contrary to the laws of the 
 New Testament, since, in the State where he lived, 
 absolute divorce only was known. He was received 
 into the body only after giving his assurance that 
 he had no intention of marrying again. The legal 
 steps, however, were iiot further prosecuted. An- . 
 other case, much more widely Imown, was that of 
 a professor in a theological seminary, who procured 
 a divorce from his second wife for a family diffi- 
 culty which lay far beyond the reach of any but 
 very lax divorce laws, and certainly was not pro- 
 
SOME IHNTS ON DIVOECB LEGISLATION. 277 
 
 vided for by any rules in the 'New Testament. As 
 might be expected, he resigned his professorship. 
 
 The law respecting divorce is thus injuring the 
 opinion of society, by opening the door of exit out 
 of marriage on very easy terms ; it corrupts the sen- 
 timents of very many who are not educated for a 
 pure and holy life ; it brings divorce within the 
 church, sometimes almost stealthily, so that it is 
 not at once found out ; it throws the church into 
 perplexity in regard to its duty toward those whom 
 the law has led astray. Probably many marry now 
 among the humbler classes with the thought ia 
 their hearts that, if they do not iind it for their hap- 
 piness, they may break it off, and buy a new ticket 
 in the lottery. Indeed, I have been informed by a 
 minister that such language has been used to him 
 by young people in his parish. And what if things 
 should go further among us, as they have gone in 
 some other parts of the Christian world ? What if 
 the current literature — novels founded on the fatal- 
 ity of passion ;. comedies, such as in France are said 
 to make game of deceived husbands—; what if adul- 
 teries in high places, the man and woman agreeing 
 to live together, reciprocally winking at each oth- 
 er's sins, um-epenting and in horrible caricature of 
 Christian forgiveness ; what if such things should 
 occur in this land which are said to occur in some 
 other countries, that have to a good degree shaken 
 off law and gospel, fear and true love ? Is there 
 any cure ? None within man's law ; and we may 
 
278 DUTY OF THE CHURCH TOWAED DtVOECE. 
 
 sink still lower than others, the greater liberty we 
 have to do good or do evil. 
 
 Christian feeling and principle have long felt 
 this growing evil of divorce to be one full of 
 menace to religion, to morality, and to the family. 
 Within the last few years, the Christian churches 
 have taken it up, and acted against it either in 
 separate or united movement. In 1868, the Epis- 
 copal Convention of Connecticut, and, in the same 
 year, the triennial convention of the whole Protes- 
 tant Episcopal Church discussed, and the latter 
 passed, the following canon : 
 
 "No minister [of this clmroh] knowingly, after due inquiry, 
 shall solemnize the marriage of any person ■who has a divorced 
 husband or wife still living, if such husband or wife has been 
 put away for any cause arising after marriage. But this canon 
 shall not be held to apply to the innocent party in a divorce for 
 the cause of adultery, or to parties once divorced and seeking 
 to bi united again." 
 
 Another canon, passed several years afterward, 
 ordaias that if any minister shall reasonably doubt 
 whether a person desirous of being admitted to 
 baptism, confirmation, or the communion, has been 
 married otherwise than as God's word and the 
 discipline of the church allows, he shall refer the 
 case to the Bishop for his judgment ; provided 
 that the sacraments shall in no case be refused to 
 a penitent person in imminent danger of death. * 
 
 Here, perhaps, is the place to mention briefly cer- 
 tain movements which have taken place in the last 
 
SOME HINTS ON DIVOECE LEGISLATION'. 279 
 
 two years respecting divorce. In 1879, a commit- 
 tee of ministers and layman was appointed by the 
 association of Congregational ministers of Connec- 
 ticut to procure a reform in the divorce laws, and 
 power was given them to co-operate with commit- 
 tees that might be raised by other Christian bodies 
 witliin the State. These cheerfully responded, 
 including the CathoHc, and a small change was 
 effected in the laws in that year at their suggestion. 
 The united committees are still acting together, 
 and were followed in several other l^ew England 
 States by organizations founded for the same 
 purpose. More lately, in 1880, a general league 
 was organized for all those States in which all the 
 bodies constituted in the several States were repre- 
 sented. If siaccess meets the efforts of these bodies 
 to modify the laws, some compromises will be 
 necessary. Thus the Catholic, who cannot accept 
 divorce absolute even for adultery, would need a 
 provision suiting his case, to the effect that • the 
 party calling; on the court for a remedy shall have 
 the option to choose whether he will petition for 
 divorce or only for separation, temporary or per- 
 manent. And, perhaps, others here and there 
 would wish to make use of the same kind of 
 remedy. Such option is given in the laws of 
 Rhode Island : there, as we have seen, separation 
 from bed and board may be granted for any cause 
 for which divorce may be granted, and for such 
 others as may seem to require them. 
 
280 DTTTY OF THE CHtJECH TOWAJJD DnrOECE. 
 
 "We here reach a very important, in fact, as far as 
 imion of Christians is concerned, a vital question : 
 Can there be an agreement, in accepting general 
 principles of divorce among Christians, so decided, 
 that the law shall be modified to suit their views ? 
 In answer, we would say tliat the Catholics and 
 the Protestant Episcopal Church regard divorce, for 
 any other causes except adultery, as forbidden by 
 the founder of Christianity. In a large number of 
 States, again, separation is the legal remedy for 
 rnany, or most, grievances of one consort against- 
 another, and divorce is reserved for the cause of 
 adultery alone, or for malicious desertion and adul- 
 tery. No union can be expected among Chris- 
 tians which shall bring them to concede that full 
 divorce is lawful on Christian grounds for any 
 and every cause of' separation now allowed by 
 State law. We must, then, aim at securing that 
 point, or must give up the contest ; unless, indeed, 
 in despair we consent to do as Moses did, who, for 
 the " hardness, of the hearts "of the Jews gave 
 them the best regulations that could be enforced, 
 not looking at the moral nature of the law, but at 
 the stubborn nature of the people for which the law 
 was given. This, however, is a confession that the 
 world is too bad, and always will be too bad, for 
 law and gospel ever to agree ; and so law must al- 
 ways be a thorn in the flesh, an irritant opposing the 
 cure and healing of the gospel, so far as to weaken 
 its power greatly. When such a really Christian 
 
SOME HINTS ON DIVOECB LEGISLATION. 281 
 
 man as Stalil, in his " Philosopliie des Eeehta 
 (ii., p. 363, ed. 2) teaehes us that marriage, in its 
 end or destination as an entire personal union, is 
 indissoluble, and can only be broken in twain by 
 adultery, and yet adds, p. 364, that " the existing 
 state of morals, which does not endure such strict- 
 ness, justifies analogous extensions of this case for 
 divorce to other deep-reaching wrongs of the other 
 party, which relate to the marriage tie," he talks, we 
 must say, as a half -Christian. Christ says " let no 
 man (no law of human origin) put asimder." Such 
 teachers say "in an evU and adulterous generation" 
 bad laws are necessary for a corrupt society, and 
 they appeal to. Moses. . But 'since Christ has ex- 
 pressly aimed at thrusting such law and such prac- 
 tice out of his church as Moses allowed, why 
 should his church be content that these should con- 
 tinue against his express will. We are not Catholics, 
 but we admire their firmness in standing by an ex- 
 press precept of Clirist, which governs all the sepa- 
 rated portions- of his church, and in seeking to 
 change law rather than to let things go down the 
 stream. 
 
 We are not without some cheering indications 
 that the Protestants of Germany are aware of the 
 evil that lies in their divorce laws, and. even in the 
 doctrine of the Lutheran Church touching divorce, 
 and are anxious to reform them. A change of opin- 
 ion is evidently going on in the minds of some of 
 the ministers of the Evangelical Lutheran Church 
 
282 DUTY OF THE CHUECH TOWAJiD DIVOECE. 
 
 of Prussia. Propositions were made ia 1868 to 
 be considered at the next Synod in 1873, of which 
 the first two were to this effect : "1. In accord- 
 ance with the Lord's word, no one shall cause him- 
 self to be separated from his consort, except on 
 account of fornication {i.e., fleshly intercourse with 
 another). 2. If, therefore, any one for other rea- 
 sons makes arrangements to obtain divorce by 
 judicial sentence, he shall be seriously dissuaded 
 from this, as from a wicked assault on the state of 
 matrimony, which is hallowed by God himself as 
 being indissoluble, and is protected against the arbi- 
 trary will of man — whereby also he brings the other 
 party into temptation "of adultery — and the further 
 process of church discipline shall be pursued with 
 him until he abandons his suit for a divorce. If, 
 however, he persists in refusing to give up his 
 measures to obtain a divorce, he must be at length 
 excluded from the communion. But if it should 
 so happen that a judicial sentence had been pro- 
 nounced before his exclusion, the bond of matri- 
 mony is not thereby broken before God and his 
 Chnrch ; and if either party seeks to marry again, 
 except after reconciliation to the divorced consort 
 — in which case a new solemnization of marriage 
 would be required — he must^not be permitted so 
 to do ; and if still, he in some way obtain a legal ^ 
 solemnization of marriage [to another person] he is 
 to be treated as in a state of continued adultery." 
 In a remark contained in the proposed act, or re- 
 
SOME HINTS ON DIVOECE LEGISLATTON. 283 
 
 'Solution, we find added the following passage : " It 
 is understood, of course, that the other party, who 
 has by unchristian conduct given occasion to take 
 steps for a divorce, is liable to be dealt with for 
 the soul's good, and, if need be, to come under 
 farther churchly discipline. And it has been al- 
 ready mentioned that, in certain circumstances, it 
 can be a salutary thing if, in the way of spiritual 
 help for the soul, a temporary severance from board 
 and bed take place and be maintained." To urge 
 such a project befoi's a general synod of a State 
 church, where all refonns must be more difficult 
 than in an independent ecclesiastical body, shows 
 that the advocates of it are in real earnest.* 
 
 "We are .authorized, I think, in holding that the 
 gi'eat body of Christian communities through the 
 world are at one in these points : Jlrst, that Christ 
 has confined the procurement of divorce, with the 
 power to marry again, only to those innocent parties 
 against whom adultery has been committed ; and 
 second, that separation from bed and board, or the 
 liberty to live apart from a -naf e or husband, is law- 
 ful to those who have been deserted by their con- 
 sort. Some hold that a deserted consort may go 
 farther, and contract a second marriage. The bet- 
 ter opinion is, that the apostle Paul had in view only 
 their living apart, and that this can be understood 
 
 * Comp. Greve d. Ehescheid, etc., p. 333. T-wo other 
 proposals were made, relating to persons one of whom belongs 
 to another church or comes from it, which we omit. 
 
284 DTTTT OF THE CHDECH TOWARD DIVOKCE. 
 
 only of Christian wives or husbands deserted by 
 unbelieving or heathen consorts, and to them alone. 
 The history of divorce since the reformation, shows 
 that abandonment of this interpretation of his word 
 opens the door to all complaints looking toward di- 
 vorce, even to the most remote from Christ's rule. 
 And there is no reason why this harmonizing view 
 may not enter into the pra'ctice of Protestant 
 churches as a norm of discipline and admission to 
 the communion. Still there may be rare cases in 
 Christian couiitries, as no doubt there will be many 
 in newly converted heathen comnnmities, of a de- 
 scription like the following : two persons living an 
 irreligious life, according to the course and law of 
 this world, have married one another in spite of the 
 usage of churches and the word of scripture. They 
 have children, perhaps, and lead a decent life. 
 After a time they become impressed with the truth 
 of Christ, and desire to sit down at his table. If a 
 gambler, or a swindler, or a drunkard, or an impure 
 person should seek this blessing, giving evidence of 
 altered character and lives, no true disciple of a 
 forgiving Saviour could hesitate to welcome them 
 to the table. But there arises in the first case sup- 
 posed a difficulty which does not exist in the others. 
 The connection, although legally allowed, is scrip- 
 turally forbidden, and no statute of limitations can 
 alter its quality. Shall these penitents separate 
 from one another, perhaps dissolve their families, 
 before they can be recognized as Christians. Such 
 
SOME HINTS OK DIVOECE LEGISLi-TION. 285 
 
 cases must have been mimerous among the first 
 converts to Christianity from among the heathen ; 
 and although there was no principle at first, such 
 as that Christian marriage was the only true mar- 
 riage, there probably would have been no difficulty 
 in the matter. The new law of forgiveness and 
 love did not ask questions as to the nature of the 
 former relations, unless they were contrary to the 
 very law of nature. It seems to the writer that 
 similar exceptions among the heathenish inhabi- 
 tants of Christian lands would not need to be re- 
 buked by church discipline, seeing that the parties 
 had already repented, and no separation could meet 
 the original evil. 
 
 Leaving such exceptional cases out of the account, 
 we may confidently say ' that no deviation from 
 Christ's law can be winked at in the exercise of 
 church discipline, which becomes a form when it 
 does not support the essence of purity among church 
 members. Thus divorce is shut out altogether, ex- 
 cept for cases expressly mentioned in the New 
 Testament, and we claim that for the peace and 
 good of society, separation ought to be the resort 
 for all other matrimonial difficulties which need 
 any legal remedy. 
 
 But there are various objections against separa- 
 tion which cannot be passed over. In the first 
 place, they who, as the author of this essay, do not 
 believe separation to be expressly authorized beyond 
 desertion, and even beyond desertion on the pait of 
 
286 DTTTT OF THE CHITECH TOWABD DIVOECE. 
 
 a heathen or unbelieving consort, have a right to 
 ask : " What authority then have you to introduce 
 separation on your principles into Christian law at 
 all., Accept the inevitable desertion, and vi^hat are 
 we to do afterward — unless rights of property and 
 relations of children may be controlled by the law 
 of the State — to relieve the suffering family, more 
 than if the parent were removed from the family 
 by the stroke of God ! " 
 
 The simple answer which I am content to make 
 to such an objection is, that adultery (including 
 those crimes against chastity which are more mon- 
 strous still in their character) is unique in its 
 nature and generically different from all other 
 wrongs commissible by one married partner against 
 the other. Other injuries which the wife, for in- 
 stance, suffers, not as a wife, but as the principal 
 member of the famUy. The father might be 
 cruel toward his son or daughter, but this wrong 
 is directly inflicted against her. 
 
 Separation thus pertains to a different class of 
 wrongs, and really needs no express sanction from 
 the New Testament. It removes a wife from the 
 control for a time, or indefinitely, of one who can- 
 not or will not rightfully exercise the duties of a 
 head of a family. He deserts his family as well 
 as his wife, and, in justice, her claims on him are 
 for neglect of herself and of them. If he will not 
 discharge them, separation, as a relief or a penalty, 
 or both, can be made the subjects of complaint. 
 
SOME HINTS ON DIVOECE LEGISLATION. 287 
 
 But calamities caus.ed without any wrong-doing of 
 either party, furnish no ground for separation. 
 Such are barrenness, accidents deforming or injur- 
 ing the body, insanity, incurable or disgusting sick- 
 ness, loss of property ; and it is a shame that in 
 some Protestant countries some of these, first as 
 causes of separation and then of divorce, should 
 stand among the statutes, as if the petitioning 
 party was expected to stay with the other only so 
 long as convenience and comfort dictated. 
 
 "We may add that no change of religious fa,ith 
 can justify separation, for the duties of a husband 
 or a wife may be discharged with fidelity as well 
 as before. Thus nothing whatever occurring after 
 marriage ought to be a cause of separation, unless 
 it involve confirmed moral obliquity or acquired 
 immoral habits. 
 
 At one time separation was used as a kind of 
 penalty for grossly improper conduct, in the hope 
 of leading the party separated to a better life. 
 The length of time might be limited, after which 
 divorce was granted, say at the end of two years ; 
 but it was found that the party complained of 
 really wanted a full divorce, and so was williag 
 to hold out untH the term of probation expired. 
 The two remedies do not seem to go well together. 
 
 The use of separation in the mediaeval church 
 was to lead the injuring party to compunction, and 
 to peaceable settlement of family quarrels, and the 
 tim^ might vary with the efficacy of the remedy. 
 
288 DUTT OF THE CHOECH TOWAED DIVOECE. 
 
 In Protestant countries it is generally within tlie 
 power of tlie court to declare the parties, on the 
 consent of both, to be restored to their original 
 condition again ; but there seems to have been lit- 
 tle or no effort to reconcile the parties by religions 
 motives, and so separation, like divorce, must be 
 pronounced in this respect a failure.* 
 
 In summing up what we have to say on the right 
 of separation, we repeat that is to be classed with 
 the other cures for family difficulties which it is the 
 part of the State to remedy. As the children may 
 be exposed to lasting evil by the wrong conduct of 
 one or of both parents, or the wife and children 
 may suffer by the husband ; so the wife may need 
 a remedy, if she is the only direct sufferer. Unless 
 something essentially evil, and worse than the evils 
 of divorce, can be shown to arise from this source, 
 it ought to remain among the remedies which we 
 can make use of on the proper occasion. 
 
 But another important objection against sepa- 
 ration is that the parties, the innocent party as 
 well as the cause of the evil, being taken away by 
 law from the family union to which they belong, 
 are tempted to lead a dissolute life, — a life, in short, 
 of concubinage or of prostitution. There is also a 
 motive held out to them by the full divorce al- 
 lowed in cases of adultery, while separation only is 
 granted in all other cases of connubial variance, to 
 commit the greater crime, in order to secure the 
 * Comp. Strippelm, p. 338, esp. note 81. 
 
BOMB HINTS ON DIVOECE LEQISLATIOU. 289 
 
 greater advantage. And again, when, as in France 
 since 1816, there can be no suits except for separa- 
 tion, it wiil be naturally urged that the causes being 
 all attended by the same decree of separation, it 
 will not much weigh with the culpable party what 
 offences they commit against connubial duty. 
 
 The earliest objections of this sort to separation, 
 known to the writer to have been made on this side 
 of the water, are found in the " System of the Laws 
 of the State of Connecticut," by the chief justice 
 of the State, Zephaniah Swift, published in 1795. 
 The same author's larger and more important work 
 (pub. in 1822-23) contains no such opinion. The 
 remarks on this subject in the System are as follows 
 (i., 193) : " The statute wai-rants no divorce from 
 bed and board, but all must be in total and from 
 the bonds of matrimony. The Legislature, however, 
 in one instance, under the special circumstances of 
 the case, have granted a divorce from bed and 
 board. This precedent ought not to be imitated, for 
 it is placing them in a situation where there is an 
 irresistible temptation to the commission of adul- 
 tery, unless they possess more frigidity or more 
 virtue than usually falls to the lot of human 
 beings." This is apparently a mere expression of 
 opinion on the part of one who had no oppor- 
 tunity in his own State or elsewhere to observe the 
 effect of separation a mensd ef toro. 
 
 M. If aquet, who has been for a good while con- 
 cerned ia attempting to introduce divorce into 
 19 
 
290 DUTY OF THE CHUECH TOWAiSD DIVOECE. 
 
 legislation in France, makes the remark in his 
 " Divorce" (1877), that the legislation of Belgium 
 is of aU countries the fittest to convince the French 
 of the necessity of abandoning their rule of sepa- 
 ration, in other words, of returning to the French 
 law as it existed before 1816. He says that " the 
 Belgians get along admirably well with divorce ; " 
 that, "although it exists there and does not exist 
 in France, the number of judiciary dissolutions of 
 marriage is greater in France than in Belgium " ; 
 and, further, "if we add that the institution of di- 
 vorce, by giving to the consorts the hope of a new 
 legal union, must tend to diminish the ratio of 
 ' separations amiahles ' to judicial separations, we 
 must conclude that marriage is more respected 
 there than in France; and that, consequently, 
 divorce there does not exercise the disorganizing 
 influence on the family which some apprehend." 
 ■ We are unable to see how M. Waquet's case jus- 
 tifies him in arguing from Belgium to France. In 
 the former country, out of five and a half millions, 
 one half of that number speak Flemish, and consid- 
 erably more must belong to that stock which is 
 less mobile than the French people. The nation 
 is almost exclusively Catholic, and, probably, as a 
 whole, considerably more under control of Catholic 
 traditions. And, again, although they move slower, 
 they are making no inconsiderable advances in the 
 direction wliich M. ISTaquet desires. From the ratio 
 of 1 divorce to 1,092 marriages in 1840, they have 
 
SOME HINTS ON DIVOECE LEGISLATION. 291 
 
 gone forward to that of 1 to 277 in 1874, in which 
 year France had the ratio of 1 to 131 separations ; 
 and, putting divorces and separations together, Bel-' 
 gium had that of a little over 1 to 200. The ques- 
 tion is at least adhuo subjvdice,' but it seems as if 
 Belgium was catching up to France, which itself, on 
 the other hand, is moving in later years somewhat 
 more slowly than formerly. This, however, is cer- 
 tain, that the increase of separations is far slower 
 in Belgium than of divorces, and prohably this 
 would be so everywhere in Protestant countries if 
 an option were given by the law. In the short ex- 
 perience of England, this is decidedly the case, as 
 the tables in Chapter Y. show. 
 
 The subject may have a little light shed upon it 
 by comparing the three kinds of divorce laws — 
 those which know of separations only, those where 
 there are. only divorces, and those which are mixed, 
 reserving divorce for adultery only and separation 
 for other marriage wrongs, or putting adultery and 
 desertion on one side and all other offences on the 
 other. 
 
 Here a difficulty arises. In the United States 
 the statistics are published thus far almost entirely 
 by States where separation is almost unknown. If 
 now we compare tables of France with tables of 
 JMEassachusettSj Connecticut, or Vermont, we shall 
 find those of France to show a far smaller ratio 
 than that of any of our ISTew England States or of 
 Ohio. In France the worst showing was 1 separa- 
 
292 DTTTT OF THE OHtFECH TOWAED DIVbECE. 
 
 tion to 151.9 inaiTiages in 1870-Y4. In Massachu- 
 setts there were in 19 years 1 to 35.8, more than 
 four times, in Connecticut- more than thirteen 
 times, as many divorces. And, again, looking at 
 divorces for adultery, we find them to be in Massa- 
 chusetts 155 per annum for 19 years, or, compared 
 with all causes for divorce, as 2.940 to 7.233, or as 10 
 to 24 yearly ; while in France, in 25 years, adultery, 
 as a cause for separation was to all other causes as 
 4.593 to 45.326, or 10 to over 98, showing that 
 among the causes adultery figures much more 
 largely in 'New England than in France. We might 
 'go on with our imperfect statistics, but these are 
 enough to show that here, where there are no sep- 
 arations, both the ratio of divorces to marriages, 
 and that of adultery to other causes for separation, 
 are greater than they are in France. In Belgium 
 the ratio of divorces and separations to marriages 
 is as 1 to 367, but we are not informed of the 
 number of divorces granted for adulteries alone in 
 that country. 
 
 An objection of some weight is made against 
 a mingled system of divorces and separations, that 
 persons desiring to get rid of their marriage con- 
 nection, will commit the highest crime in the hope 
 of obtaining legal right to marry again. Is not 
 this a fault of law, rather than of the mingled sys- 
 tem * -Let the law stand as it stands in many 
 
 * Chancellor Kent (Com. ii., 106), says, " I have had occasion 
 to believe in the exercise of a judicial cognizance over various 
 
SOME HINTS ON DIVOEOE LEGISIATION. 293 
 
 codes, that the guilty party cannot marry again, 
 nor marry at all the jcxwtic&ps cnminis, and this 
 ohjection will in a great degree cease. 
 
 Another bad working of separation is said to be 
 that there is great temptation both to the innocent 
 and the offending party from their suspended rela- 
 tions : each is in the way of the domestic life of 
 the; other. Or if the one deserts the other totally, 
 what a helpless and hopeless life must the innocent 
 wife lead ; worse than bereavement by death ; not 
 widowhood but loneliness, with a soulless husband 
 destroying the possibility of a new marriage while 
 he lives. This is a serious objection, but not so 
 great as to lead us to wish the law to continue as 
 it is, where every divorced party can marry again. 
 Where remarriage is possible only for the innocent 
 party, separated for the adultery of an unworthy 
 wife or husband, the average of the happiness of 
 the institution will be at least as great, and its 
 sanctity be as well maintained. Society is the 
 gainer, although individuals may suffer. 
 
 But if a mixed system of divorces and separa- 
 tions may be attended with serious difiBculties, 
 and if separation by itself stands no chance and 
 perhaps ought to stand no chance of being intro- 
 
 cases of divorce, that the sin of adultery was aomelimes com- 
 mitted on the part of the husband for the very purpose of di- 
 vorce." But on the same page he adds, "it is very ques- 
 tionable whether the facility with which divorces can be 
 procured in some of the States, be not productive of more, 
 harm than good." 
 
294 DDTT OF THE CHUECH TOWARD DIVORCE. 
 
 duced into legislation by 'itself, there is a third 
 plan which can be easily adopted, and may have 
 the happiest results. I refer to the option between 
 divorce,' if the law of a State at present sanction 
 it, and separation. This has been briefly spoken 
 of in another part of the present chapter, where it 
 was said that the Catholics might have permission 
 to avail themselves of a choice consistent with 
 the rules of their church. I go farther now, and 
 say that such option, exercised by a complaining 
 party, would remove the danger of a conflict be- 
 tween the State and the Church, and to a great 
 degree the danger that a church member may be 
 tempted to go aside from the rules of the New 
 Testament in regard to divorce. There will be 
 room for those who have separated from one 
 another to come together again in mutual forgive- 
 ness, mider the proper legal and religious solemni- 
 ties. As the law, so far as adultery was concerned, 
 would remain such as before, the Protestant and 
 the Catholic might each take the course which 
 their convictions required. In short, as the whole 
 change would consist in the option, there would 
 need to be no dispute, as far as I can see, in regard 
 to the working of the law. It violates no rule of 
 justice'; it must suit a greater number of persons 
 than any law could suit without such a provision. 
 
 We shall handle very briefly the only remaining 
 point of our subject of which we propose to speak, 
 which we will call some hints touching reforms in 
 
SOME HINTS ON DIVOKCE LEGISLATION. 295 
 
 divorce legislation and practice. And, jvrst, it is 
 important to ask how far the divorce suit ought 
 to be regarded as a relief to an aggrieved party, 
 and how far the general intei-ests of justice and 
 the preservation of the sanctity of marriage ought 
 to have weight in legislation. It is evident enough, 
 from the changes of divorce legislation in modern 
 times, that the sacredness of the marriage tie has 
 faded to a degree out of law and public feeling. 
 This is to be ascribed perhaps to a reaction against 
 the evils that grew up under the administration of 
 ecclesiastical courts. A noteworthy result of tlie 
 jurisdiction of spiritual courts was that the remedy, 
 even 'on account of adultery, as it was granted by 
 these bodies, was only separation, with the hus- 
 band's right to sue the adulterer for his private 
 wrongs in a temporal court.* There was no jury 
 known to the procedure of the ecclesiastical courts, 
 and this usage came over into this country, where 
 " it is believed," says Mr. Bishop, " to be the un- 
 varying course, except where a statute directly or 
 by implication provides for a jm-y trial. In most 
 of our States, not all, the trial by jury is by statute 
 directed, either absolutely or at the election of a 
 party" ("Mar. and Div.," ii., 256, l\ In the new 
 English system, since 1857, either party can ask 
 that the question of facts may be tried by the 
 court or by a jury, special or common. But where 
 damages are claimed there must be a jury. As 
 * Comp. Blackst., i., 441 ; iv., 65. 
 
296 DVTY OF THE CHTJKCH TOWARD DIVOKCE. 
 
 publicity in many divorce suits would be against 
 good morals, free entrance into tlie court-room is 
 not desirable. 
 
 It is neither easy nor fair to pronounce an opin- 
 ion in regard to tbe way in which such suits are 
 managed, yet in some States there appear to be 
 these defects. 
 
 First. — There is no one whose duty it is to give 
 good heed that the interests of the State and of 
 general justice are maintained. Governor Andrews 
 of Connecticut, in his message to the legislature of 
 June 7, 1880, says that " every person who is at all 
 familiar with the business of our courts has ob- 
 served that at least eight out of ten divorces are 
 granted upon uncontested hearings. Many of 
 them, it is believed, have been obtained by persons 
 colluding with one another." The Governor re- 
 commended that the attorneys for the State in the 
 counties should be required to defend in all such 
 contested cases, but the legislature did not carry 
 out his views. 
 
 Second. — There is in some States, it is believed, 
 great haste in despatching cases of this sort. A 
 story is told of a JN'ew England judge that, on one 
 occasion, when a clergyman came to speak with 
 him in court, he begged to be excused for a mo- 
 ment on account of judicial business. He returned 
 after a few moments and said, " Do you know 
 what I have done? I have divorced a couple in less 
 time than it takes for you to marry them ! " 
 
SetME HINTS ON DIVOEGE LEGISLATION. 297 
 
 Third.- — The number of petitions or litiels re- 
 jected is exceedingly small, so far as I can learn, 
 since no statistics of such rejection are published, 
 except by the one State of lihode Island. In an- 
 other State I have a lawyer's opinion that there 
 are probably not five finally rejected out of one 
 hundred presented. 
 
 Fourth. — There is need of great care against col- 
 lusion. The States with loose divorce laws are ex- 
 posed to frauds from beyond their borders. They 
 have la.ws to prevent this, but it is not easy of pre- 
 vention. A friend of mine was told by two 
 lawyers that they regarded all the libels brought 
 forward at a certain term of a court as collusive. 
 
 More might be recommended by one familiar 
 with the procedure iu our courts, but what has 
 been said is enough, it is hoped, to bring this sub- 
 ject into grea,ter prominence of discussion and to get 
 the opinions of experienced persons. And here we 
 close our essay with some hints in regai'd to certain 
 changes in the- law of divorce relating to adultery.j 
 First, on satisfactory proof that adultery has been 
 committed, the guilty party ought to be prohibited 
 from marrying his or her partner in guilt. This 
 has more than once been spoken of in these pages, 
 as a not infrequent provision of various divorce 
 laws, and its omission, as a thing to be greatly re- 
 gretted in the English law of 1857. Why should 
 tenderness be used toward one who commits the 
 mo§t enQ.?JJiPVi§ of all crimes against t^he (jbligationg 
 
29S DUTY OF THE CH0ECH TOWAED DIVOECE. 
 
 of marriage ? And what a premium is held out to 
 sin in this hope of impunity and possibly of re- 
 spectable marriage ! I do not advocate this as a part 
 of Christ's law in the New Testament, for he had, 
 it would seem, no occasion to mention it, but as a 
 demoralizing permission. It is like pardoning a 
 traitor and putting him into a high oiBce of state. 
 
 Again, I would go so far as to make an adul- 
 teress incapable of a new marriage at any time— as 
 men convicted of bribery are excluded in some 
 places from the right of suffrage and of office — or 
 at least to take this right away for a long period. 
 
 And here we may ask, Why are States so care- 
 less in regard to the punishment of adultery as many 
 Christian States are, as if it was no crime against 
 society ? If, as Prof. Koscher says, " einEhebruch 
 wiegt in sittlicher Beziehung schwerer als zehn 
 Strupra," why should we depart so far from the 
 feeling of the early Puritans as to give an adul- 
 terer or an adulteress a practical impunity ? It is 
 true such a criminal is rarely, if ever, known in 
 good society ; but why should the lower strata of 
 society be corrupted by perceiving that he or she 
 seems to have lost very little by the crime as far as 
 this world goes. And how corrupting at times of 
 trial and fall it is for such a person to know that 
 he or she needs neither to lose anything nor to 
 get the bad name of a criminal. 
 
 A change in the opinions of society or in the 
 laws of divorce is not shown by the experience of 
 
SOME HINTS ON DIVOECE LEGISLATION. 299 
 
 history to be very easy or rapid, except toward 
 the worse. In this country it cannot be effected 
 unless under the influence of moral, patriotic and 
 religious sentiments. Should any change come 
 over this country for the better, it would not 
 probably come by a general agreement of the States 
 or some new constitutional provision — ^f or it is to be 
 apprehended that a law so established would rather 
 express the average of existing laws or something 
 below them — but by the enlightened convictions of 
 reforming and philanthropic statesmen. This is 
 too good almost to be hoped for. Meanwhile, may 
 the zeal of those not slacken who are now en- 
 deavoring, as representatives of the various Chris- 
 tian denominations in I^ew England, to bring back 
 a better way of thinking on a point where the de- 
 scendants of the Puritans have degenerated. As 
 one who has labored in this movement, and at an 
 advanced age does not expect to live into a time 
 of large reform, I here, in closing, express my 
 belief that on the whole the present system of dir 
 vorce legislation, as it is set forth in the statutes of 
 ISTew Tork, and, with a few exceptions, in those of 
 England, is worthy to be followed within our bor- 
 ders, unless something still better and wiser and 
 more accordant with the teaching of Christ and 
 the dictates of the purest morals be found out. 
 
APPENDIX. 
 
 NOTE 1 TO CHAPTEE I. 
 
 The explanation of Dent. xxiv. 1-4, I must retract, and 
 must regard the protasis as including w. 1-3, while t. 4 is the 
 apodosis. The leading clauses then are : "If a man taketh a 
 wife, and writeth for her a bill of divorcement, and she goeth 
 out of his house and becometh another man's wife,- and the 
 second husband giveth her a biU of divorcement and sendeth 
 her away, or if the latter husband die, her former husband 
 may not take her again to be his wife," etc. 
 
 So the Sepfcuagint, J. D. Michaelis, and Saalschutz on Mo- 
 saic law, Bwald, Antiquities, apparently (p. 304, English trans- 
 latioQ), Rosenmiiller, Knobel, Keil, Delitzsch, De Wette in his 
 translation. The only difEerence this makes is that the pas- 
 sage does not command, but assumes that in putting away a 
 wife it was an old custom to have a written formula of di- 
 vorce. To the question of the At)ostle3 " why then did Moses 
 command to give a bill of divorcement ? " Christ replies that it 
 was not a command, but a permission. This permission is 
 involved in the words, however they are taken. The feeling 
 that to marry again a divorced wife after her divorce and her 
 marriage to another, was an abomination, appears in Jer. iii. 
 1, where the first words in our translation, " they say," are 
 difaculc 
 
302 APPENDIX. 
 
 NOTE 2 TO CHAPTEE U. 
 
 On Certain Passages in the Epistles to Timothy and Titus. 
 
 There are certain passages in the first of Timothy and in 
 Titus which have a possible bearing on divorce, and therefore 
 may have a few words devoted to them in the present work. 
 These passages are 1 Tim. iii. 3, 13 ; 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 1 Tim. v. 9 
 the participle yeyoyvTa is to be joined with "one taan'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 ren- 
 dering violates the sense of yeyoyvia, which could only mean 
 "having become the wife of one man," which is nonsense. 
 The participle is taken with the clause "not less than three- 
 score years," aixd the sense is having come to be threescore 
 years old. Exactly so Luke writes ii. 43, " When he came to 
 be {iyivsTo) twelve years old," where we have the genitives 
 again. And so in classical Greek. Plato says of his " master 
 of edacation" (de leg. vi. 765 D.), " Let him have reached the 
 age of not less than fifty years," ItSc yeyovliis fiij lAoTTof i) 
 
 The passage in 1 Tim. v. 9, then, is like the others, and 
 may be used to explain them. Two senses can be given to it. 
 The first is that the widow must not have had more than one 
 husband at a time. Now, as bald polyandry is not a thing to 
 be conceived of, if such were the sense, it could only mean " 
 that there must not have been more than one person living at 
 the same time, whose wife, according to the point of view of 
 the author, or of Christians generally, she could have been 
 called. In other words, she must not have been married to 
 one husband while another was living. And so, after this 
 
APPENDIX. 303 
 
 analogy, we must explain "one woman's husband" 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 
 aUowel tj say, that widow had two husbands at once, one a 
 divorced and one an actual husband ; that elder has two 
 wives, one dismissed and one living with him. But there is 
 in our view a serious objection to this interpretation. We fall 
 back, therefore, upon the second. The widow must be a uni- 
 •oira, the elder or deacon a monogarmis, in the sense in which 
 th.at word (like bigamus, digarmis) frequency 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 dea- 
 cons, for one must admit, as it seems to;Us, that the strain of 
 his argument leads toward married elders rather than unmar- 
 ried. For, if an elder had governed his house well, it was a 
 qualification for the eldership, but if he had not bad any 
 household, how could his power of governing be known ? Nor, 
 thirdly, was it given because the pagans respected those who 
 had married once, more than tho.se who had married more 
 frequently. It is true that a univira, a chaste widow, was 
 held in honor as an example of virtue, but we do not find that 
 the same rule was applied to men. Nor, finally, could the 
 writer have had any ascetical tendency in giving out this rule. 
 For this a.sceticism, in its forms of prohibition of marriage 
 and abstinence from certain meats, is pointedly condemned in 
 the fourth chapter of Timothy. 
 
 We can find no reason, except one of these two, either that 
 the monogamy and monandry gave prima fade evidence of re- 
 straint, or that a man or woman who had married twice or 
 thrice would be less likely to have avoided those allianoes 
 which the Christian rule condemned, or, in other words, would 
 
304 APPENDIX. 
 
 be less likely to have put away a married partner, or to have 
 taken one put away by another. 
 
 However we understand the passage, simultaneous polyg- 
 amy GEinnot have been thought of. * 
 
 NOTE ,3 TO CHAPTER HI. 
 
 The twenty-second novell of Justinian was repeated for the 
 most part in the 117th, only in the latter the divorce ex com- 
 muni consensu was expressly prohibited, as stated in the text. 
 It served, with that succeeding novell, as the basis of subse- 
 quent legislation, The Basilica, says Walter, u. s., § 315, re- 
 peat literally the causes of divorce given in the novells of Jus- 
 tinian. We have no copy of this code in our hands, but have 
 noticed in the manual or Hexabiblus of Hanneuopuius, which 
 has still authority in Greece, that the title on divorce is almost 
 entirely borrowed from the source above mentioned. The 
 freedom or rather laxity of divorce held its ground almost 
 unchecked in the Eastern Church. It is remarkable, says 
 Walter (u. s.), to see how Balsamon and other Greek canon- 
 ists slip over the conflict of these laws with Scripture and tra- 
 dition. 
 
 The twenty-second novell first made a discrimination be- 
 tween various kinds of divorce. The general statement (in 
 chap, iv.) is this : '"some marriages are dissolved during the 
 life of the contraotants by the consent of the parties, about 
 which there is nothing that needs here to be said, since the 
 parties arrange the affair as seems to them best, others on a 
 reasonable pretect (itara Trpotpairii' iiKojov, per oocasionem ratio- 
 nabilem), those mainly which are called bond gratiA, others 
 again witliout any cause, and others still for a reasonable 
 cause." 
 
 The bond gratia divorce is so named according to Wiichter 
 
 * 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 
 tnm to them. The latter, on 1 Tim. iii. 2, mates the sense to be that the 
 bishop has lived, or lives, with uo woman in sexual intercooise except vrith 
 his lawful wite. 
 
APPENDIX. 305 
 
 (" Die Ehescheid. bei den Rom.," 333, n. s. w.), whose remarts 
 we here to some extent adopt, for the first time in this novell. 
 It stands between divorce by common consent and divorce on 
 account of fault cf one of the parties. It agrees with the first 
 in this, that a certain sort of agreement of the parties is neces- 
 sary, and with the other, that it is for determinate reasons. 
 Its essential characters are the following : 1. No libellus repu- 
 dii, it is probable, was necessary. 2. The divorced party was 
 content, i.e., did not oppose the transaction. 3. It was not 
 obtained for crime, but for certain misfortunes of the diToroed 
 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 postlimiuii 
 dissolved marriage of course, even if the captive returned, but 
 now was to continue for five years ere divorce could take place 
 (cap. 7) ; reduction to the state of slavery by sentence of a 
 judge, which could only happen in the case of a freedman 
 (cap. 9) ; absence of the husband in the army fbr ten years 
 without sending any word to his wife or reply to her letters 
 (cap. 14) ; which may be compared with a law of Constantine 
 mentioned in our text ; and the choice by either partner of a 
 monastic life. In all the cases here mentioned, except the last, 
 each party takes back what property was brought by him or 
 her into the partnership — the husband the antenuptial dona- 
 tion, the wife the dos. In the last case the party remaining 
 in the world was to have whatever, according to the marriage 
 contract, he or she would have in the event of the death of 
 the other (cap. v.). To these cases of bond gralid divorce 
 Wachter adds sterility, not mentioned, but in force before and 
 not set aside by the novell. 
 
 The divorce for a good reason contains the same causes of 
 divorce as the law of Theodosius II. referred to in the text, to 
 which this novell adds three others against the woman : pro- 
 ' curement of abortion, bathing with men wantonly, and taking 
 steps to contract another marriage while living with her hus- 
 band. In all these cases the innocent party has the dos and • 
 the antenuptial donation both. In no case where the woman 
 
306 APPENDIX. 
 
 is the irmooeiit 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 dona- 
 tion. If a man, having married a woman on such terms, ex- 
 pels 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 protec- 
 tion (cap. 18). Tha dissolution of such maniages, 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 yeax propter 
 seminis confusionem. 
 
 In examining Koman legislation touching divorce, one can- 
 not 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 rea- 
 son, among others, that the Eomau looked on his system of 
 law as something majestic and imperial. Yet a mean idea lay 
 at the bottom of marriage. Money was its soul. Dos and 
 donatio ante or propter nuptias play their part until one gets 
 disgusted. 
 
 The late distinguished Frenchman, Troplong, In his excel- 
 lent essay on the " Influence of Christianity on Manners in 
 the Roman Empire," devotes a number of pages to the sub- 
 ject of divorce. Prof. C. Schmidt, of Strasburg, takes up the 
 same subject in his admirable essay, which won a prize from 
 the French Academy. But the results are not very satisfac- 
 tory. Beyond all question, Christianity purified the concep- 
 tion 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 encoun- 
 tered old habits which resisted it with an immense obstinacy, 
 and 30 from Constantine onward we see divorce legislation 
 
APPENDIX. 307 
 
 swinging' to and fro as if the t-wo forces could never consent 
 to any stable equilibrium. The most striking instance of 
 this — we believe that we have not mentioned it elsewhere — 
 is furnished by a novell of Justin II. — the 140bh. After Jus- 
 tinian had abolished and made penal divorce by joint consent 
 — divorce, bana gratid, as this novell by an abuse of terms calls 
 it — this foolish emperor brings it back again, basing his alter- 
 ation of the law of his predecessor on the quarrels whiqh 
 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." Wbich proves too much, for the loss of love of 
 one only ought; on these premises, to bring it to an end. This 
 novell of A.D. 566 was set aside by the subsequent divorce 
 laws of the Basilicse. 
 
 NOTE 4 TO CHAPTER IIL 
 
 Some N'otices of Divorce Laws in the Middle Ages. 
 
 There are numerous proofs that the strict rule of the indis- 
 solubility of marriage met with obstacles in its way toward 
 universal recognition. The laws of the Germanic and Scandi- 
 navian nations were, as might be expected, at first willing to 
 grant absolute divorce on a variety of grounds ; Koman law 
 •bad 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 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 prac- 
 tice. 
 
 In the stricOy 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 dis- 
 cord or maltreatment of the parents of either party by the 
 
308 APPENDIX. 
 
 other, or impotence, or, it would seem, even poverty. Dis- 
 cord and malicious desertion continued to justify divorce after 
 Christianity was known, but the bishop alone could dissolve 
 the connection. (See G-ans, "Erbrecht," iv., 489 ff.) 
 
 In the laws of Aethelbirht, of Kent (A.D. 560-616), it is said 
 that "if a free man lieth with a freeman's wife, he shall pur- 
 chase her with her (or his) wergild, and get another wife out 
 of his own pr^erty and bring her home to the other man." 
 (R. Schmid, "Gesetz. d. Angelsaohs." 2d ed., p. 5, Ko. 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. , 399) argues that separation was tolerably free. 
 
 In the Burgundian laws it is said of a woman putting away 
 her husband necetur in luto. A man is authorized to dismiss 
 his wife for adultery, poisoning, and robbing of graves only, 
 where we trace the influence of Roman law. If he does this 
 for other reasons, he must either pay " alterum tantum quan- 
 tum pro pretioipsius dederat" {i.e., the wife-price or morgeh- 
 gabe), besides a mulct of twelve soUdi, or must leave his 
 house and property to his children and move away. (Gans, 
 iv., 36.) 
 
 Among the Lombards the stricter law of divorce was fully 
 introduced by Charlemagne and Lothair. Before the conquest 
 by the Franks fines for divorce appear. King Grimoald or- 
 dained, that if a married man took another wife he should 
 pay five hundred solidi, and lose the guardianship over his 
 first.* (Gans, iii., 180.) 
 
 In the formulas in use among the Franks there are signs 
 of divorces quite contrary to the rules of the church. In a 
 formula of Marculf (ii., 30 ; Walter's " Corpus," iii.), it is said 
 that the marriage is dissolved because there is no love accord- 
 ing to God's will between the parties, but discord. And they 
 are free either to go into a convent or to marry again. (Gans, 
 iv., 83.) 
 
 In the Westgothic laws, divorce is permitted only in the case 
 of adultery — indeed it was the corLsequeuce of this offence, as 
 
 * Grimoaldi. leges, vi., in Walter's Corpus, i., 756. 
 
APPENBlX. 309 
 
 the adulterer aiid the guilty wife ceased* to be free, and be- 
 came the property of the injured party. Earlier usages per- 
 mitted diTorce by consent. " Let no one presume," a law had 
 it, " to join in marriage to himself a free woman divorced 
 from her husband, unless either by writings or before witness 
 the fact shall be evident that a divorce took place. " But such 
 divorces were afterward forbidden by King Chindasuintha, 
 and adultery now constituted the only ground of divorce. 
 (See Gans, u. s., iii., 341-344.) 
 
 As we have seen that the church temporized among the 
 Scandinavians, so it did more or less elsewhere. Among the 
 •Anglo-Saxons the " Poenitentiale " of Egbert, of York (?), be- 
 longing 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. (Phil- 
 lips, " Angelsachs. , Eecht, ," 343.) The old British church 
 seems to have had stricter rules. In France, during the eighth 
 century, things were, if anything, still looser. Riohter affirms 
 (" Kirchenr.," § 382, note 7), that mutual-consent was there a 
 reason for divorce, and at least in two cases remarriage of one 
 or both parties could follow, namely, when a vow of chastity 
 was taken by one of the parties, and when one became lep- 
 rous. Furthermore, the following reasons, emanating from 
 one of the parties, justified divorce : adultery, desertion of a 
 wife, a husband's crime punished with servitude, captivity of 
 either party, plotting against the other's life, change of rank 
 from slavery to freedom, refusal of connubial duty, impo- 
 tence, and even supervenient impotence. The decree of Gra- 
 tian has the following sentence of Greg. III. (A.D. 731-740) : 
 " Si mulier infirmitate correpta nou valuerit debitum viro red- 
 dere — ille qui se non potent continere nubat magis," etc. Of 
 the capitulum of the synod of Vermerie under Pippin (a.d., 
 753), permitting divorce with marriage to a man, against 
 whose life his wife has conspired with others,"we have spoken 
 before (p. 116). Another article of the capitulary of the same 
 assembly agrees with the above-mentioned sentence of Gre- 
 
310 APPENDIX. 
 
 gory III. Five yea«s afterward, in the meeting at Compi§gne 
 ("Compendium"), it was enacted (capit. 16), that either hus- 
 band or wife might separate from the other, being leprous, 
 and marry whom he or she would. * 
 
 All this shows the conflict of expiring Boman with ecclesias- 
 tical law. We have noticed a stm later instance in the assises 
 des bourgems of the kingdom of Jerusalem (§ 155, p. 383, ed. 
 Fouoher) : " 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 ohiet de mauvais mal trop • 
 laidemeut), or her mouth or nose sends forth a very offensive 
 odor (ou il put trop dure la bouche ou le nes)," etc. In such 
 cases, reason req^uires that the church ought to separate them, 
 and accordingly, after proof of the fact, the unfortunate wo- 
 man is to be put into a convent (soit rendus en religion), and 
 the husband can then take another wife. The wife can do 
 the same when similar misfortunes befall the husband. Then 
 follows a rule for the paying over of her dower to the abbess 
 of the convent, etc. This is remarkable, considering that it 
 contradicts the canon law in the, thirteenth century, and yet 
 the less remarkable when we consider the rule of Gregory 
 above cited, which famishes a precedent. 
 
 Our limits forbid us to speak of the penalties which the 
 laws of the Germanic and earlier barbarous kingdoms attach 
 ti) adultery. We must refer for that subject to WUda's " Straf- 
 recht d. Germanen," pp. 831-839. 
 
 NOTE 6 TO CHAPTER IV., p. 17. 
 
 Foljamhe's Case. 
 
 In the present note we shall follow, for the most part, the 
 late Prof. Craik, of Belfast, Ireland, who, in the Appendix to 
 the "Romance of the Peerage," Vol. I., cited in our text, has 
 submitted this case to an accurate examination, and has 
 shown the mistakes of previous writers. 
 
 * Some of these statements Catholic writers seek to explain away. 
 
APPENDIX. 311 
 
 Mr. Bishop, in his work on marriage and divorce (u, § 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 Sallteld, 137. And, again, in § 705, he reaffirms the same 
 thing, but without proof, saying only that the fact is now gen- 
 erally admitted. 
 
 Th it sentence of nullity in ecclesiastical courts dissolved 
 marriage, or, more properly, declared it never to have existed, 
 is known to all. But there is not the slightest evidence that 
 these courts gave a license to marry another person in any 
 other case. They could not have done it in the old Catholic 
 times, and no other courts had jurisdiction over marriage and 
 divorce. Nor has any evidence been produced that after the 
 Reformation — however, some may have married a second wife 
 while the first was living, feeling no dread of the censures 
 which were only ecclesiastical — the case was altered. 
 
 The note in Salkeld's Reports, which has misled the author 
 of the article on divorce in the " Penny Cyclopedia " and a 
 number of others, including Mr.' Bishop, is as follows : "A 
 divorce for adultery 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 di- 
 vorce for adultery," the parties might marry again ; but in Fol- 
 jambe's case, AnnAj 44 Eliz. , in the Star Chamber, that opinion 
 was changed ; and Arqhbishop Bancroft, upon the -advice of 
 divines, held that adultery was only a cause of divorce a mensa 
 ei toro." 
 
 Salkeld wrote in the early part of the eighteenth century, 
 and, as Prof. Craik shows, makes two errors, besides mistak- 
 ing 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 juris- 
 diction in such cases,- and where "the archbishop neither sat 
 alone nor presided," should have rendered such a decision. 
 
312 APPENDIX. 
 
 But we may go back to Moore's Reports of the seventeentli 
 century, in -which, as indeed in Noy's Reports (1656), the mat- 
 trr of Foljambe is thus stated. We translate from the law 
 I 'lench. " Feb. lii, anno 44 Eliz. In the Star Chamber it was 
 declared by all the court, that whereas (?) Foljambe was di- 
 vorced 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, the divorce 
 being a mensd et thcro, and not a vinculo matrimonii. And 
 John Whitgift, then archbishop of Canterbury, said that he 
 had called to himself at Lambeth the most sage divines and 
 civilians, and that they had all agreed therein." 
 
 Here the darkness begins to clear up. It is Whitgift, not 
 Bancroft, who was concerned in the affair, and the primate 
 had held a council, not a court, at his palace. But there re- 
 mains the fact that, somehow or other, Foljambe's marriage 
 had come before the Star Chamber, of which Whitgift was a 
 member. A natural explanation might be 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 hi the case, 
 had been divorced for his own adultery from two wives, and 
 while they were alive had married a third, Mrs. Sarah Page, 
 a widow, the daughter of the complainant, Edward Eye, of 
 Misterton. The complaint was that Foljambe, in right of his 
 so-called wife, had seized the manor-house at Misterton, held 
 by lease of the Chapter of York Cathedral, and had by force 
 kept out Rye, on the claim that not Rye but Rye's daughter was 
 the lessee. The wrong charged against Foljanabe was this 
 illegal exclusion of Rye; claiming to be the rightful tenant, 
 and the disturbance which he had thus excited. On this 
 alone, says Mr. Craik, could the court give judgment, but, 
 " it is likely enough that, in so aggravated a case, the ille- 
 gality of the defendant's pretended marriage with the daugh- 
 ter of the complainant, his only plea, may have been strongly 
 
APPENDIX. 313 
 
 pointed out and denounced. But to quote tliia,case as estab- 
 lishing anything new is absurd, and almost equally so whether 
 the decision be taien to have been that of the archbishop (as 
 seems to be not an uncommon notion) or that of the court 
 of the Star Chamber. No judgment of either the one or the 
 other upon such a question could have carried with it any 
 authority whatever." 
 
 ■ The facts, then, when sifted, seem to be these : 1. Fol- 
 jaimbe, like many oihers in Elizabeth's reign, feared no penal- 
 ties of the common or statute law for his audacious marriage, 
 for there were none, and cared nothing for those of the law 
 eoolesiastioal. 2. The validity of his marriage came up inci- 
 dentally. 3. The primate, in consequence of the loose state 
 of opinion, thought it best to take the eonsilia prudentum 
 touching divorce, and submit them to the court. 4. The law 
 of England had remained unaltered. 5. It is not improbable 
 that this gross case, belonging to February, 1603, 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 6 TO CHAPTER rv. 
 
 M. Naquet's project of a law on divorce submitted to the 
 French Chamber, June 6, 1876, corresponding nearly with the 
 law of March 21, 1803. Comp. p. 156 svpi-a. 
 
 " Marriage is dissolved (1) by the death of one of the mar- 
 riage partners; (2) by divorce. Divorce has effect by the 
 mutual consent of the two united in marriage or by the will 
 of a single consort (1) for a specific cause, (3) on the express 
 and persistent demand of one of the consorts, afSrming his or 
 her win to dissolve the marriage, without, however, appealing 
 to any specific cause. 
 
 " The determinate causes which the party bringing the suit 
 for divorce can appeal to are : 
 
 " 1. The adultery of the wife, if the husband is the demand- 
 ant, and the husband's adultery, if the wife is the demandant. 
 The law of 1803 required, in order that the husband's adol- 
 14 
 
314 APPENDIX. 
 
 tery should become a cause of divorce, that he should have 
 kept his concubine in the common or family dwelling. " This 
 distinction to the prejudice of the wife," says M. Dumas, 
 most justly, " is an inequality between the parties which noth- 
 ing justifies." M. Naquet struck it out in his project of a law. 
 
 "2. The condemnation of either con.sort to a bodily or in- 
 famous penalty. 
 
 " 3. Crimes, cruelties, or grave injuries of one consort 
 toward the other. 
 
 " 4. The derangement, lunacy, or madness of one of the two. 
 
 " 5. ITotorious. dissoluteness of morals. 
 
 " 6. The husband's desertion of the wife, or the wife's of 
 the husband, for at least a year. 
 
 " 7. The husband's refusal to maintain the wife, though he 
 has the means. 
 
 " 8. The absence of either of them, during two years at 
 least, without being heard from. 
 
 "9. Impotence, either antenuptial or supervenient. 
 
 "10. Infirmities, disgusting or incurable, whether following 
 after marriage or anterior to it, but unknown to the other 
 party before the marriage was concluded. 
 
 " 11. False denunciations or calumnies of one of the par- 
 ties against the other. 
 
 " 13. The acquisition of gain by dishonesty (d'un gain 
 deshonnete). 
 
 "13. Insobriety, habitual drunkenness, continued during 
 two years. 
 
 "14. Religious differences of opinion succeeding marriage, 
 and proved either by a change of religion of one of the 
 parties, or by the religion prescribed to the children at birth, 
 or in subsequent years, or avowed by the two parties. 
 
 "15. And, in general, every cause not foreseen, which shall 
 appear to the court to be calculated to inflict a hea/vy blow 
 on the marriage union." 
 
 Comp. Naquet, "Divorce," Chap, vii., p. 113, and for the 
 law of March 31, 1803, p. 314. See also Alex. Dumas fils, 
 " Question du Divorce," pp. 6-8. 
 
APPENDIX. 315 
 
 The articles 23-93 of Naquet's law related to procedure and 
 the oonsequeuoes of divorce. The project was rejected by the 
 Chamber. 
 
 NOTE 7 TO CHAPTER V. 
 
 Extract from Rei. S. Loomis' article on " Divorce Legislation 
 in Connecticut." New Englander/or July, 1868. 
 
 "During a period of fifteen years nearly four thousand di- 
 vorces have been granted : a number equal to one-twentieth 
 of all the families in the State. Are we not justified in the 
 conclusion that the laws of 1849 effected not merely a change, 
 but a revolution in the legislation of the State in the matter 
 of divorce ? How then has this revolution been accomplished ? 
 If we turn again to the terms of that law, we find that three 
 new causes of divorce were added by it — imprisonment, for 
 life, infamous crime, and general misconduct. Applications 
 for divorce, for the first two of these causes, occur but seldom 
 in the records of the courts, and cannot, 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 divorce by our courts, 
 arid 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-siith of the whole were granted expressly for 
 general misconduct alone. It is, indeed, exceedingly curious 
 to notice the effect which this so-called general misconduct 
 clause has had upon the construction of the entire enactment, 
 of which it forms apparently so subordinate a part. It is 
 noticed sometimes iu musical instruments that an attachment 
 directly connected with but a portion of the scale, and de- 
 signed primarily to affect but the notes of a single octave, is 
 found in practice to give a new tone and character to the 
 whole instrument throughout its entire range. Something 
 analogous to this would seem to have been the effect of this 
 general misconduct attachment to our divorce law. Its influ- 
 ence has been felt, not only in the suits brought specifically in 
 
316 APPENDIX. 
 
 its name, but in extending the loose, vague, and indefinite 
 character of its own terms over the language and administra- 
 tion of the entire enactment. In addition to the tables care- 
 fully 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 LegislatuVe of 
 1865 to take into consideration and report upon the recom- 
 mendation of the Governor in relation to a reform in our 
 laws of divorce. In the evidence presented to that commit- 
 tee, from whicA are drawn almost all the facts quoted in this 
 article in regard to the present administration of oar divorce 
 law, was the opinion of two of our judges who have recently 
 retired from the bench, that of the four thousand divorces 
 granted in this State during the past fifteen years, more than 
 half have been secured through the influence, direct or indi- 
 rect, of this general misconduct clause. 
 
 " In a vast number of cases, in which the evidence in refer- 
 ence to the particular offence alleged in the suit must have 
 been rejected as insufficient, the additional claim urged by 
 counsel, that ' the happiness of the petitioner had been de- 
 stroyed, and the end of the marriage relations defeated,' has 
 been sufficient to secure a decree of divorce. In fact, it may 
 be said that the indirect influence of this clause has been far 
 greater than any it could independently have secured ; and 
 where upon this issue alone a decree could not have been ob- 
 tained, yet, coupled with the charge of adultery, though 
 amounting to only a suspicion — or with desertion for a shorter 
 period than provided for in the statute, or with evidence of 
 intemperance and cruelty, which would be held wholly insuf- 
 ficient 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, placed under his almost absolute discretion ; and 
 
APPENDIX. 317 
 
 where the State has intrusted such almost unlimited power 
 over the most sacred relation of life, with few and slight lim- 
 itations or barriers of any kind to preserve it from abuse, it 
 need not surprise us to find, at least equal laxity in its prac- 
 tical exercise. Apart, however, from the loose language of 
 the statute, and the large discretion allowed to the judge, it 
 would be difiScult to conceive of anything called a court con- ■ 
 stituted with more inevitable tendency to dangerous laxity of 
 practice than the Superior Court, extemporized, during the 
 few minutes just before or af ber one of its ordinary sessions, 
 into a Court of Divorce. 
 
 " But whatever may be said of the constitution of the court, 
 its usages are certainly such as are known to no other court, 
 civil or criminal, high or low, within the jurisdiction of the 
 State. Not only is it true in nine cases out of ten, or more 
 exactly, as our second table shows, in ten cases out of eleven, 
 that there is no appearance whatever for the respondent, and 
 consequently all the evidence presented is ex parte, but it is 
 a n toiious fact that, ordinarily, no sufficient measures are 
 complied with to secure notice to the respondent. It is true 
 the law provides that certain parties may issue an order of 
 notice, but what the order shall be, and what the evidence of 
 its service, are left again to the discretion of the ofiBcer who 
 issues it ; and practically the duty is fulfilled, as shown in the 
 evidence before the committee, by the discharge of a letter 
 through the post-office to the last address which the petitioner 
 who brings the suit may choose to furnish. 
 
 "Whether, in the etiquette of a Court of Divorce, it be con- 
 sidered discourteous or otherwise to the lawyer prosecuting a 
 divorce suit, for the judge to submit the witnesses provided to 
 any very close examination, direct or indirect ; and whether in 
 a Court of Divorce the assurance of a lawyer as to what he can 
 prove is equivalent to the actual proof itself or not, it is certain 
 that the hearing of quite a batch of divorce suits in the 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." 
 
lE-DEX. 
 
 Adtjlteby, Jewish adultery, what, 68 ; punished with death 
 • under Jewish law, 18 ; Roman definition of, 90 ; penal- 
 ties against, until and under Christian emperors, 91 ; 
 prosecutions against, under Septimius Severus, 90 ; when 
 made the sole cause of divorce iu Italy, 114; adultery not 
 a state crime in England, 178 ; French law touching it 
 when committed by a husband, 159 ; laws in American 
 colonies against it, 217-331 ; adulteress by several laws 
 cannot marry her paramour, as in France, 164 ; iu New 
 York, etc. , 333 ; in Massachusetts, and elsewhere, any 
 guil(<y party cannot marry, 383. 
 
 AUord, c, 63, 369. 
 
 Allen, Dr. N. , on Catholic marriages in New England, 345, 346, 
 
 Ambrosiaster, c, 115. 
 
 Aristotle on wife-purchase iu early times, c. , 37. 
 
 Augustin de conjug. adulterin., c, 69 ; on second marriage, 
 111. 
 
 Augustus, his laws relating to divorce, 47, 48 ; legalized con- 
 cubinage, 88; laws against adultery, 48; his legislation 
 on divorce, continued uutU Constantine, 93 ; feebleness of 
 these laws, iMd.; divorces of several emperors, 94, 95. 
 
 Austria, divorce laws in, 150 ; causes for divorce in different 
 religious bodies, 188. 
 
 Belgium, causes for divorce in, 183 ; tables of divorce and 
 separation, 184. 
 
320 INDEX. 
 
 Beza on divorce, 134. 
 
 Bishop (Marriage and Divorce, ed. 6), on divorce by legisla- 
 ture in Massachusetts, 197 ; criticism on statutes relat- 
 ing to divorce, c, 200, 203, 212, 215. 
 
 Cadet, c. , 188 ; on indissolubility of marriage, passages bor- 
 rowed from, 365, 267. 
 
 Calistus, Bishop of Rome, what Hippolytns says of him, 88. 
 
 Calvin on divorce, 133-134:, 139. 
 
 Canon law, 77; authorizes divorce of a Christian from a 
 heathen, and remarriage, 77. 
 
 Catholic marriages a^ affecting the ratio of marriage and di- 
 vorce in New England, 245, 246. 
 
 Cato lent his wife to Hortentias, 20. 
 
 Causes of divorce in the United States. See Divorce. 
 
 Cavarno, Rev. C, on divorce in Chicago, 244. 
 
 Chemnitz's opinion on divorce, 131. 
 
 Chicago, divorce in, 244. 
 
 Christ, effect of his few words on divorce, 9, 50 ; condemns 
 divorje as wrong, though endured, 55 ; imply an aboUtion 
 of the old economy, 56. 
 
 Church members, duty of, 273-4, 280, 283-5. 
 
 Church, possible conflict of, with State on divorce, 351, 252; 
 as on civil marriage, 253 ; where wUI these conflicts es- 
 pecially arise ? 255-257. 
 
 Clement of Alexandria on second marriage, 110. 
 
 Concubinage legalized in Rome, 88. 
 
 Congress of United States, legislation of, in territories, 194, 
 especially in District of Columbia, ibid. 
 
 Connecticut, divorce in earlier times, 225 ; Dr. Dwight's state- 
 ment, ibid. ; new causes added in 1843 and 1849, 336 ; 
 Mr. K. Loomis on increase of divorce, in New Bnglander, 
 July, 1866,238; bistable, 227; clerk's reports for 1860-80, 
 228, 339 ; ratio of husbands' to wives' petitions, ibid ; 
 rate in different counties, 330 ; obnoxious clause of law 
 of divorce repealed, 227, 339. 
 
INDEX. 321 
 
 Constantine, his legislation on divorce, 96 ; did not interfere 
 with divorce by consent, 96. 
 
 Corinthians, first Epistle to (chap. vii. 10-16), considered, TO- 
 SS. 
 
 Council of Trent, c, sixth canon on matrimony, 131 ; seventh, 
 c, 67 ; on degrees of affinity, etc., 133 ; on dispensations, 
 ■ 133. 
 
 Demosthenes, examples of divorce in his private orations, 
 30, 33. 
 
 Denmark, causes of divorce in, 179. 
 
 Deuteronomy xxiv. 1-4, referred to oui Lord, Matthew xix. 7, 
 56, 58 ; explained, 15, 16 ; further remarks on, Appendix, 
 note 1. 
 
 De Wette, c, 33, 65,79,83. 
 
 DifEarreatio and confarreatio, 41. 
 
 Dike, Kev. S. W., 342. See also Preface. 
 
 Dion Cassius on amount of adultery under Septimius Severus, 
 90. 
 
 Dispensation, papal, in marriages, 133, 133. 
 
 Divorce in the United States by leg^latures, at first common, 
 now prohibited by most' constitutions, 196 ; not now in 
 vogue in any State, 197-199 ; laws in many States recog- 
 nize separation, in others not, 301 ; diflEereuoes of States 
 as to divorce laws, 200 ; no divorce in South' Carolina, 
 302, 203 ; divorce gran.ted in New York only for adultery, 
 304 ; Louisiana follows French law, 205, 306 ; New Eng- 
 land States followed early Protestants, 307, 208 ; causes 
 for which divorce is granted in various States, 308-315 ; 
 as impotence ; adultery, 208 ; desertion, 209 ; imprison- . 
 ment for crime, 309 ; joining religious societies holding 
 marriage to be unlawful, 310 ; neglect to provide for wife, 
 310; habitual drunkenness, 210; cruelty of husband, or 
 either party, 211 ; cause left to discretion of courts, 212, 
 213 ; misconduct defeating purposes of married union, 
 314; separation granted by many States, 215, 217 ; pecu- 
 liarity in Bhode Island, 316 ; change of domicile for pro- 
 
 14* 
 
322 INDEX. 
 
 curement of divorce, and lawa against this, 215 ; peti- 
 tions for divorce denied in certain oases, 316, 217 ; penal 
 consequences of divorce in oases of adultery, 217, 218 ; 
 severe penalties in the early colonies for this crim", 219- 
 221 ; rights of property of guilty party, how affected, 221, 
 323 ; liberty of remarriage, 223, 233 ; increase of divorce 
 and fewness of statistical tables, 323-335 ; increase in 
 Connecticut and other States, see Connecticut, Massachu- 
 setts, other New England States, Ohio, etc. See, also, 
 England, France, Germany, Prussia, Belgium, Saxony, 
 and Separation. 
 Divorce, two kinds of, on complaint of one or by mutual agree- 
 ment, 258 ; not essentially different, 259 ; welfare of peti- 
 tioner not the exclusive aim of legislation, 359 ; welfare of 
 society to be considered, 259 ; consideration of the peti- 
 tioner's desires is the main cause of increased divorce, 260, 
 261; modem Protestant legislation unchristian, 263 ; Chris- 
 tian view is all but indissolubility of marriage, ibid./ nearly 
 the same view taken elsewhere, as by Roman lawyers, 
 263 ; by Hegel, ibid.; by Hume, 364 ; by Gibbon, 265 ; by 
 PaulJanet, 265, 266 ; by Troplong, 366, 367; by SirWU- 
 liam Scott, 267, 268; Christ's precepts compared with 
 Luther's, 369, and Zwingli's strange looseness on divorce, 
 270; relation of marriage unique, 270; yet adultery of 
 wife, though the same sin, a greater one than of the hus- 
 band, 272, .273; church censures equal for both, 372; 
 bound also to follow Christian law whatever State law is, 
 278, 274 ; effect of State law on practice in church, 275, 
 276 ; especially in the humbler classes, 377 ; reaction in 
 churches against e vils of State law ; as in Protestant Episco- 
 pal Church of United States, 278 ; in combined Christian 
 movements, 279 ; Stahl's partial acceptance of bad State 
 law of divorce, 281 ; opposition in Germany against loose 
 divorce law, 281-288 ; divorce lawful for only one cause 
 by consent of Christians, 283 ; unless in one extreme class 
 of cases, 284 ; separation the true remedy where now 
 divorce is freely applied, 285 ; objections against it, 285- 
 
INDEX. 323 
 
 387 ; is a measnie within reach of the Christian State, 
 288 ; said to lead to immoralifcy, 388, 389 ; by Judge Swift, 
 289 ; Naquet's objeotions, 290, 291 ; other objections con- 
 sidered, 293, 293 ; option of petitioner as between di- 
 vorce and separation would remove, if divorce laws remain 
 as they are, much evil and conflict, 294. 
 
 Domioil and divorce, 315. 
 
 Drumami, c, 30. 
 
 Dwight, President, on divorce in Connecticut, 335. 
 
 EN&LA2n), separations and ecclesiastical courts, 168, 169 ; opin- 
 ion on divorce in time of Keformation, 169 ; practice of re- 
 marriage after separation in time of Elizabeth, 171 ; judi- 
 cial divorce by House of Lords, 171-173 ; divorce laws of 
 1858, etc. , substance of, 174^177 ; tables of divorce and 
 separation, 192, 198. 
 
 Episcopal Church, Protestant canons of, on divorce, 378. 
 
 Ewald, c, 14, 33. 
 
 Foljajcbb's case, appendix, note 5. 
 
 France, divorce laws in 1793j ,151, 152 ; in 1793 and 1793, 153, 
 154 ; reaction, 154, 155 ; divorce laws of Code Civil, 1803, 
 156-166 ; divorce prohibited, separation introduced at 
 fall of Napoleon, 166-168 ; attempts to change the law, 
 168 ; Naquet's project, appendix, note 6 ; tables of sepa- 
 rations in France, 188-193 ; deductions from, 190-193. 
 
 Gans (Erbrecht), c. , 114, appendix, note 4. 
 
 Gaius, c, 36. 
 
 Genesis ii. 34, cited by Christ (Matthew Jdx., 9, 10; Mark v. 
 7, 8), 10, 57, 368. 
 
 Germany, causes of divorce in parts of, 184, 185, 186 ; in Sax- 
 ony, 186, 187, 188 ; in Hesse Cassel, 187 ; in Prussia, 187. 
 
 Greek Church, looser as to divorce than the Western, 114. 
 
 Greeks, especially Athenians, divorce among, 35-34; loose- 
 ness in repudiation, 81. 
 
 Greve, Ehescheidung, c, 188, 183. 
 
324 INDEX. 
 
 Hbbre'ws, divorce among, 9-35. 
 
 Hermas, the Shepherd of, on second marriage, 107, 108. 
 
 Hillel and Shammai, their opinions on divorce, 15, 58. 
 
 Hippolytus, c, 88. 
 
 Hilzig, c, 23. 
 
 HofiEmann, c, 205. 
 
 Holland, causes of divorce in, 179. 
 
 Hug, c, 66. 
 
 Innocent III., Pope, on marriage after separation, 113. 
 
 Janet, Paul, on indissolubility of marriage, 265, 366. 
 Jerome, on second marriage, 113. 
 Josephus, c, 34. 
 
 Judicial divorce in United States, 196-199. 
 Julian overturned tlie divorce laws of Constantine, 98. 
 Justinian, his divorce laws, 99 ; forbids divorce by agree- 
 ment, ibid. 
 
 Kayseb, advocate of free divorce in eighteenth century, 140. 
 
 Keil, c, 23. 
 
 Kent, ChanceUor, c, 204, 271, 293. 
 
 Enobel, c, 16. 
 
 Kohler, c, 33. 
 
 Lactantius, on adultery in the sexes, 115, 116. 
 legislative divorce, 196-200 ; now nearly unknown, ibid. . 
 Loomis, Rev. H., divorce in Connecticut, 336, 337, appendix, 
 
 note 7. 
 Louisiana, divorce in, 305, 206. 
 Luther on divorce, 128, 139, 130, 139. 
 
 Maine, causes of divorce in, 341 ; divorces in, 343. 
 
 Malachi, the prophet refers to a covenant of husband and 
 wife, 13 ; on divorce (ii. 11-16), explained, 31-34. 
 
 Marquardt, c, 49. 
 
 Marriage among the Hebrews, 10-14 ; betrothal, 13 ; polyga- 
 my allowed, but not common, ibid. ; money paid for wife. 
 
ESTDBX. 325 
 
 13, 14; among the Greeks, wife-purchase, 37; among 
 the Romans, the manus, 35 ; eonfarreatio, 35 ; us^is, 35 ; 
 coemptio, 8(i ; marriage without the mantis, 36 ; without 
 husband's rights over wife's property, except the dos, 38 ; 
 opinions as to marriage in Christian times, 103; virtue of 
 celibacy, 103, 103 ; on second marriage, 104 et seq. ; sao- 
 rament:il character of marriage, its effect on divorce, 
 105 ; of heathen or mixed marriage, 106 ; marriage after 
 separation unlawful, 113 ; marriage laws in Psrassia, 148. 
 
 Massachusetts, causes of divorce in, and changes of law, 330- 
 333 ; tables for 1860-1878, 3ii3 ; for counties, 333 ; local 
 differences, 333, 234 ; table of causes, 334, 335 ; increase 
 of divorce and increase of crimes, 385, 386. 
 
 Meier and Schumann, c. , 38. 
 
 Meyer, H. A. W., c, 65, 66, 69, 76, 78, 83. 
 
 Mixed marriages, 106, note. 
 
 Naquet, causes for divorce in various countries given by, 
 179-183; taKes for Belgium, 183, 184; for France, 188 
 (in part) ; his new law of divorce in France, 168 ; and 
 appendix, note 6 ; his objections against separation, 389- 
 291. 
 
 Neander, c, 79. 
 
 New Hampi^hire, causes for granting divorce, 340 ; statistics 
 ascertained by private persons show a decided increase, 
 341. 
 
 New England St.ites, early divorce laws of, 306, 307. 
 
 New York can stUl grant divorce by legislature (?J, 196, 198 ; 
 granted no divorce for a century, 204 ; grants divorce for 
 adultery only, ibid. 
 
 North American Review for June, 1880, 345. 
 
 Norway, causes for divorce in, 180. 
 ? 
 
 Obttingen, a. von, Moralstatistik, ed. 2, e. , 188. 
 Ohio, causes and tables of divorce, 343 ; among settlers of dif- 
 ferent nationalities, ibid. 
 
326 ENDEX. 
 
 Option of petitioner between divorce and separation suggested, 
 
 293, 294. 
 Origen on second marriage, 110. 
 
 Passages of Scripture especially noticed : Genesis ii. 3 ; 
 Deuteronomy ^xxiv. 1-4, pp. 15, 16, and Appendix i. ; 
 Isaiah 1. 1 ; Jeremiah iii. 8, p. 18 ; Ezekiel xxiii. 45, p. 
 18 ; Malachi ii. 11-16, pp. 21-34 ; Matthew v. 31, 32 ; 
 xix. 3-9 ; Mark x. 2-13 ; Luke xvi. 18 ; 1 Corinthians, 
 vu. 10-16, pp. 51-83 ; 1 Timothy, iii 2, 13, v. 9 ; Titna, 
 i. 6, appendix, note 2. 
 
 Peters, W., Bhesoheidung in Prenssen (1881), c, 186, 301. 
 
 Platner, c, 3t 
 
 Plato, in the Laws, on purity of marriage (841, D.), c. , 37. 
 
 Plutarch, c, 39. 
 
 Pollentius on second marriage. 111. 
 
 Xlopyeta explained, 60-66. 
 
 Protestant commentators on divorce, 135, 136 ; laws, 137 
 et seq. 
 
 Prussia, divorce laws of, 141-150 ; in the Landrecht, 148-150; 
 causes for, 143-146 ; consequences of, 146 ; tables of di- 
 vorce, 186, 187. 
 
 Refokm in divorce laws, hints touching, 395-398. 
 Keformers discarded Catholic doctrine of marriage, 126-128. 
 Kein, Bom Privatrecht, c, 39, 49 ; Criminatr. , 90, 92. 
 Remarriage, 222. See Augustin, Clement, Justinian, Origen, 
 
 Pollentius. 
 Khode Island, causes of divorce in, 387 ; ratio of divorces to 
 
 marriages, 387, 338 ; petitions not granted, 338. 
 Eichter, Kirchenrecht, 185. 
 Eochau, v., c, 168. 
 
 Eome and Romans, divorce among, 34-49. See Divorce. 
 Eossbach, 49. 
 Russia, causes for divorce in, 184. 
 
 Saalschatz, Mos. Eecht, c, 13, 14, 64. 
 
INDEX. 327 
 
 Savigny, a, 39 ; on divorce laws of Prussia, 149. 
 
 Saxony, divorce and tables of divorce in, 187, 188. 
 
 Scotland, causes for divorce in, 179. 
 
 Scott, Sir William, on indissolubility of marriage, 267, 268. 
 
 Selden, o., 17. 
 
 Separation for crime, 117 ; by annulment of mafiiage, 118 ; 
 
 for consanguinity, 118, 120 ; for affinity, 130, 131-123. 
 
 See Dispensation. 
 Sparta, looseness of divorce in, 36. 
 San Francisco, divorce in, 245. 
 St. Louis, divorce in, 345. 
 Stanley, A. P., c, 79. 
 
 Stephen V. , Pope, on separation for crime, 117. 
 South Carolina, divorce in, 203, 203. 
 Strippelmann, Ehescheidungsrecht, c, 185; 186. 
 Sweden, causes for divorce, 180; fewness of divorces there, ibid. 
 Switzerland, divorces in courts of the Confederation, 181 ; 
 
 causes for divorce, 181, 183 ; tables for 1877-79, 182, 183. 
 
 Tables of divorce in several countries of Europe, 186-193 ; in 
 
 the trnited States, etc., 227-246. 
 TertuUianon re-marriage, 110. 
 Tholuok, c, 63, 65, 76, 79. 
 Thomasius, advocate of loose divorce in eighteenth century, 
 
 140. 
 Troplong, c. , on indissolubility of marriage, 266, 267. 
 Trumbull, Dr., on divorce in Connecticut, 325. 
 
 United States, divorce and divorce laws in. See Divorce, 
 Separation, and the names of several States, as Massachu- 
 setts, Connecticut, etc., 194-350. 
 
 Vermont, divorce in, causes of, 388 ; tables of, 339 ; ratio of 
 
 Ubels of husband and wife, 340. 
 Viel-Castel, c, 166. 
 
 Wachtbb, 49. 
 
328 BSTDEX. 
 
 Walter, Kirchenreolit, c, 107. 
 
 Winer, c, 76. 
 
 Woman could not give a bill of divorce among the Hebrews, 
 
 19, but see 53. 
 Wright, C. D., his statistics of divorce in Massachusetts, c, 
 
 230, 381, 233, 334, 235, 236. 
 
 Xenophon, c, 36. 
 
 Zurich, loo^e divorce laws there in 1525, 133. 
 ZwingU on divorce, 133, 169, 170, 268. 
 
Communism and Socialism 
 
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