LIBRARY ANNEX 2 g)tate College of Agriculture at Cornell ©nibecsitp Stftaca. M> I?.. ILihrat^ Cornell University Library HQ 1051.L2 Marriage in church and state. 3 1924 014 053 411 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924014053411 FOUNDATION BOOKS COMMON OBJECTIONS TO CHRISTIANITY. By 0. L, Drawbridge, With a Survey of the Leaders and Literature in the Conflict Between Christianity and Its Opponents. By Edwin Lewis, Professor of Systematic Theology and Philosophy of Religion in Drew University. Demy 8vo., cloth, price $3.25. ARCHAEOLOGY OF THE OLD TESTAMENT AND DISCOVERIES SINCE THE WAR. By Prop. Edouard Navillb and Prof. Edwin E. Voigt (Garrett Biblical Institute). Demy Svo., cloth, price $3.25. EDUCATIONAL PRINCIPLES AND MISSIONABY METHODS. By Roland Allen. Demy 8vo., cloth, price $2.75. Each of the following volumes is demy 8vo., cloth, price $3.00 THE PRESENT RELATIONS OP SCIENCE AND RELIGION. By the Rev. Prof. T. G. Bonhey, D.So. MYSTICISM IN CHRISTIANITY. By the Rev. W. K. Fleming, M.A., D.D. THE RULE OF LIFE AND LOVE. — THE TEN COMMANDMENTS By the Rev. R. L. Ottley, D.D. THE RULE OP FAITH AND HOPE.— THE APOSTLES' CREED By the Rev. R. L. Ottley, D.D. THE RULE OP WORK AND WORSHIP.— THE LORD'S PRAYER By the Rev. R. L. Ottley, D.D. MARRIAGE IN CHURCH AND STATE. By the Rev. T. A. Laoey, M.A., D.D. CHRISTIANITY AND OTHER FAITHS. By the Rev. W. St. Clair Tisdall, D.D. THE BUILDING UP OP THE OLD TESTAMENT. By the Rev. Canon R. B. Girdlestone, M.A. THE CHURCHES IN BRITAIN BEFORE A.D. 1000. Vols. I and II. By the Rev. Alfred Plummbr, D.D. CHARACTER AND RELIGION. By the Rev. Hon. Edward Lyttelton, M.A. ST. PAUL'S MISSIONARY METHODS. By the Rev. Roland Allen, M.A. THE CHRISTOLOGY OP ST. PAUL (Hulsean Prize Essay). By the Rev. S. Nowell Rostron, M.A. RELIGION IN AN AGE OF DOUBT. By the Ret. Charles J. Shbbbeare, M.A. THE CATHOLIC CONCEPTION OP THE CHURCH. By the Rev. W. J. Sparrow Simpson, D.D. NEW YORK: SAMUEL R. LELAND. 129 PARK ROW. MARRIAGE IN CHURCH AND STATE BY THE REV. T. A. LACEY, M.A., D.D. CANON OF WORCESTER NEW YORK SAMUEL R. LELAND 129 Park Row TO THE BISHOP OF LONDON My Lord, — / dedicate this book to my chief, whose care for the proM^ tical toorkit^ of the holy institution of which it treats is not the least among the burdens of his heavy charge. I do not ask your Lordship's permission to publish it, because that is not the custom of our Church, but none the less on that account do I submit my amclusions to the judgment of those who are set over me in the Lord. To teach nothing but what the Catholic Church prescribes or allows is the purpose of Your Lordship's obedient servant, T. A. LACEY September, 1912. viii EDITOR'S GENERAL PREFACE The Library of Historic Theology is designed to supply such a series, written by men of known reputation as thinkers and scholars, teachers and divines, who are, one and all, firm upholders of the Faith. It wiU not deal merely with doctrinal subjects, though pro- minence will be given to these ; but great importance will be attached also to history— the sure foundation of all progressive knowledge — and even the more strictly doctrinal subjects will be largely dealt with from this point of view, a point of view the value of which in regard to the " practical " subjects is too obvious to need emphasis. It would be clearly outside the scope of this series to deal with individual books of the Bible or of later Christian writings, with the lives of individuals, or with merely minor (and often highly controversial) points of Church governance, except in so far as these come into the general review of the situation. This de- tailed study, invaluable as it is, is already abundant in many series of commentaries, texts, biographies, dictionaries and mono- graphs, and would overload far too heavily such a series as the present. The Editor desires it to be distinctly understood that the various contributors to the series have no responsibiUty whatso- ever for the conclusions or particular views expressed in any volumes other than their own, and that he himself has not felt that it comes within the scope of an editor's work, in a series of this kind, to interfere with the personal views of the writers. He must, therefore, leave to them their full responsibility for their own conclusions. Shades of opinion and differences of judgment must exist, if thought is not to be at a standstill — petrified into an unpro- ductive fossil ; but while neither the Editor nor all their readers can be expected to agree with every point of view in the details of the discussions in all these volumes, he is convinced that the great principles which he behind every volume are such as must conduce to the strengthening of the Faith and to the glory of God. That this may be so is the one desire of Editor and contributors aJike. W. C. P. London. PREFACE IT may be objected that there is in this book more about law than befits a work professedly theological. The criticism is just, and I can meet it only by protesting that I have reduced the legal element within the narrowest pos- sible bounds. Marriage cannot be extricated from its legal environment ; my aim has been to show how, in spite of that environment, the religious and theological aspect of the holy estate may be kept in view. It is useless to ignore facts, but they can be adjusted. I trust, however, that as my book has no claim to be considered a legal treatise, so also it wiU be found free from any false pretensions of the kind. It is not furnished with any apparatus of legal in- stances, and I have tried everywhere to deal only with the broad features of human law. Not here only have I avoided the appearance of erudition which a copious display of cita- tions may cheaply purchase. Few references will be found at the foot of my pages, those few being almost entirely confined to cases of actual quotation, y^rhere authority seemed to be needed for a statement made in the text. What is common knowledge of the weU informed, I have usually been content to leave as such. Where reference is made to documents of a more public kind, such as Acts of Councils and Statutes, it seems reasonable to expect that all readers who are competent to verify what is said will know where to find the texts. The occasional mention of ix X PREFACE an author to whom I am indebted for information or for ideas would be invidious, and to mention all would be im- possible. Should anyone think that I have conveyed away without acknowledgment something of his own, let him rejoice to find that he has contributed to the common stock ; I ask for no better usage of what may be mine. It may be well to warn the reader about my use of two words. In this book, as in my Httle Handbook of Church Law, I have confined the word legal to a precise meaning. Borrowing an idea from authors who carefully distinguish leges and canones, I use it only of that which is ordained by the laws of the medieval Temporalty, or of the State as dis- tinguished from the Church. The English word law has so wide and varied a meaning, covering both ius and lex and ranging from the law of gravitation to the by-laws of a railway company, that a thing may lawfully be called lawful for other reasons, but I call a thing legal only when it has this particular sanction, and with the help of this distinction it is sometimes possible to avoid tiresome peri- phrases. I use the word divorce with equal precision. In my pages it means the breach of marital intercourse by which husband and wife are discharged, with the approval or toleration of lawful authority, from the obligation to live together according to the nature of their union. It means this, and nothing else ; and I am convinced that the word ought to have no other meaning. A decree of nullity ought not to be called divorce, because it is a declaration that in point of fact there has been no binding contract. I do not use the word in speaking of that dissolution of mar- riage, proclaimed by some systems of law, which is supposed to set the parties free to contract a new marriage, because I believe that in point of fact there can be no such thing ; marriage is a natural relation which can no more be dissolved by law than the relation of brother and sister, and I object PREFACE xi to applying a word which has a real meaning to a thing which does not exist. Confusion lies that way. It seemed probable that the Report of the Royal Com- mission on Divorce would be pubhshed before my book went to press. This has not happened ; but my loss is the less if I may venture to think that I have anticipated its conclusions. Divorce is a painful necessity of human society ; imnecessary consequences are deduced from it, and I have examined to the best of my power both the necessity and the deductions. I have had two objects. One is to ascertain facts ; the other is to draw from them a poUcy. The one task I have pursued through many pages ; the other I have attempted in few words. The result of each is remitted to the judgment of the reader, that of the latter mor« especially to the judgment of the Church. ANALYTICAL SUMMARY CHAPTER I Of Marriage in the Order of Nature The natural constitution of human society The creative idea .... Imperfectly realized Marriage a fundamental institution The natural necessity of the family Therefore divinely ordered Difficulty of determining details of this ordering The value of Christian teaching . Revelation explaining Nature The essential nature of marriage An entire union of man and woman . For the production and nurture of children Its character obscured by the dominance of the male sex ..... The relation of affinity The growth of affection Mutual support a secondary purpose Community of goods .... An exclusive union soUus cum sola The ofEence of adultery The evil of polygamy .... Not merely forbidden to Christians But contrary to the natural bona matrimonii Inconsistent with the numerical equaUty of the sexes ..... And with the well-being of the race Indissoluble, except by death A natural union, not destroyed by failure to fulfil its purpose .... Notwithstanding the general practice of mankind to the contrary . xiii page I 6 7 II 12 14 15 16 18 jciv ANALYTICAL SUMMARY PAGE The opinion that marriage is indissoluble only for Christians ...... 19 The teaching of the Gospel ..... — As to the permissibility of divorce . . — Privilegium PauUnum .... 20 As to marriage after divorce . . . .21 Effected by contract .....-• 25 Between the parties themselves .... — Patria potestas and the requirement of parental consent ....... 26 The effect of inabUity to fulfil the terms of the contract — Conditions of a vahd contract . . . -27 Right intention ...... — Physical capacity ...... 28 Freedom from constraint .... — And from misunderstanding ... — Freedom from previous marriage . . .29 Sponsalia and precontract ... — Freedom from ties of kinship . . .30 The effect of affinity . . . -31 The contract fulfilled by consummation . . -32 ObUgations ensuing ...... — EquaUty of husband and wife . . -33 The natural law of marriage imder the sanction of conscience — Ascertained by interrogation of Nature ... 34 With the aid of revelation ..... — Identical for Christians and for others ... — The duty of a Christian man ..... — To order his own life by the Divine Law of Natur* . — To maintain the Divine Law in human society . . 35 CHAPTER II Of Marriage in the Order of Grace Marriage a remedy against sin . . . . . .36 The remedies of grace usuaEy taken from the order of nature ...... And supematurally endowed A Great Mystery ........ 37 The nature of /luo-T^pia .... Derived into Christianity from Greek sources Not with any special sense of secrecy. As shown by the Latin rendering sacramenittm . 39 ANALYTICAL SUMMARY XV The meaning of a Sacrament .... A natural thing with supernatural endowment And secondarily signum rei sacrae Means of Grace . The seven sacraments Marriage strictly sacramentcil Greek analogies . Matter and Form The Rite .... Not drawn from Jewish sources But taken over from existing practice, especially Roman The evidence of TertuUian .... The evidence of other Fathers The evidence of the Sacramentaries The evidence of Nicolas I . The ancient ceremonies ..... Essentials and concomitants .... The Sacramental Grace ...... Lawfulness of the Act of Marriage Aid in the performance of the duties of marriage Abatement of concupiscence .... Marriage a moral instrument employed to this end The Sacrament of Marriage only for the baptized But every marriage of the baptized is sacramental Contract and sacrament not separable . And the baptism of the married makes their marringe sacramental .... The ciise of one party baptized . Marriag* to be encouraged for its sacramental value PAGE 40 CHAPTER III Of Marriage in Human Law The necessity of a Positive Law of Marriage Which may conflict with Natural Law And cause a practical diflSculty about obedience Five modes of variation from Natural Law By addition .... By omission .... By prohibition of what is allowed By dispensation .... Absolute .... xvi ANALYTICAL SUMMARY PAGE Contingent in case of necessity Appl5dng even to Divine Law By contradiction ...... The possibility of ignoring marriage .... The legitimacy of a power of controlling marriage . In the State ....... Even as regards the matter of the sacrament In other forms of society ..... Which may be in conflict with each other . In the Church ....... Specifically in the episcopate The twofold task of the Church .... To teach the world ...... To regulate the conduct of Christians . Reluctance of the Church to legislate The case of CaUistus ...... Existing systems of Law ...... Human Law in contradiction with Natural Law Other modes of divergence from Natural Law . Juridical ........ Interpretation of Natural Law Evidence of fact Limitation of pleas Legislative. By way of addition By way of omission By way of prohibition or impediments . Obstructive ..... Which may run simultaneously in different systems of law Diriment Objections to the creation of diriment impedi- ments . Especially by the State Answered by the requirement of a legitimate con- tract . As defined by different authorities for their several subjects .... By way of dispensation .... Absolute ...... Not appUcable to Divine Law. Possible with any system of Human Law For the interception of an impediment For relaxing obligations . 6i 62 ANALYTICAL SUMMARY xvii PAGE For sanaiio in radice . . . 8g Applicable within one system to the rules of. another system .... — The case of Church and State . . go The privilege of the Church in England . 91 To be used with caution. ... 92 Contingent ....... 93 Based on a necessity .... — Therefore not requiring express legisla- tive sanction. .... — But caUing for judicial control . . — By a power lawfully controlling the acts of the person dispensed . 94 Applicable to Divine Law • • • 95 The nature of necessity in this case . — Concerned with the obhgations of marriage 96 Divorce . . . ... . — In the Christian Church . . 97 Abatement of community of life . 98 Dowry and Settlements . . — Morganatic marriage ... 99 Matrimonium conscientiae . . — Concerned with Impediments . . .100 Consanguinity ..... — Af&nity ...... loi Ligamen ...... — Simultaneous polygamy . . 102 Successive polygamy . . . 103 The practice of the Eastern Church .... 104 And of some modern States . 105 Conflict of authorities. . .106 Human Law to be kept within bounds .... — CHAPTER IV Of Marriage in Canon Law The beginnings of the Christian rule ..... 108 Continuation of the Jewish system .... — Prophet and legislator . . . . . .109 Its passage to a developed legahsm . . . .110 The elements of which were present from the first — Christianity in face of Roman Law . .in XVlll ANALYTICAL SUMMARY The Jewish Law of Marriage The contract Its formahties Impediments Divorce The Law theocratic But amended in the preaching of the Gospel The original Christian Law Restraint of divorce . DiscipUnary control . By pastoral methods . Not setting aside the Civil Law But admitting dispensation . From Natural Law From Civil Law From canonical requirements The Christian Empire The Civil Law modified in a Christian sense But imperfectly The continuing distinctness of the Christian rule Relations of Church and State . Eastern Canon Law .... The Quinisext Council in Trullo Distinctness of Church and State Growing predominance of Canon Law Its codification Nullification of irregular marriages Impediments and Dispensations Divorce and remarriage Espousals Marriage of the clergy Legal control of marriage by the Church Western Canon Law. Results of Barbarian conquest . The disciplinary stage Work of Bishops and Councils Of the Popes St. Gregory the Great and England Church and State in disagreement Mixed jurisdictions The Respublica Christiana . The working unit of Christendom. Spiritualty and Temporalty . Control of marriage by the Spiritualty PAGE 112 "3 "5 ii6 117 118 119 120 121 122 124 125 126 128 129 130 131 132 133 134 Analytical summary XIX PAGE Cause of this development 135 Codification 136 Dionysius Exiguus and other collectors. The Decretum of Gratian .... — Its immediate effect .... 137 The Corpus luris Canonici .... 138 The development of legalism .... 139 Abuse of spiritual censures .... — Evils of a theocratic system 140 Checks on the lus Commune .... 141 The case of England — Legitimation per subsequgns matrimonium 142 Administration of marriage law .... 143 Diocesan Exempt places .... — Appeals and Reservations . . . . . 144 The supposition of the Papacy — Dispensations ...... 145 Procedure on vaUdity of marriage — Pro salute animae ..... 146 Process of divorce ..... Coercive methods 147 Later legislation Restriction of impediments . 148 Computation of consanguinity — Regulation of affinity .... 149 Limitation of Divine Law .... 150 Classification of impediments 151 Tempus feriatum 152 Diriment impediments .... 153 Disparitas cultus .... • 154 Vows of continence. — Holy Order ■ 155 Consanguinity and affinity ■ 157 Cognatio spiritualis .... Publica honestas .... 158 Crime ...... Weakening effect of dispensation 159 And of frequent nullities — Moral failure of the medieval Canon Law' 160 Restraint of clandestinityj. . . . . , ■ t- By penitential censures .... . 161 XX ANALYTICAL SUMMARY PAGE As an obstructive impediment . . .161 As a diriment impediment .... — Objections to this ..... — Disruption of the Respublica Christiana .... 162 CHAPTER V Of Marriage in the Modern State The modern state of Western Europe Developed out of the elements of the medieval polity The communitas perfecia .... The theory of imperialism .... Under the impulse of the Reformation The teaching of Luther .... Reception of Roman Law The teaching of Calvin .... Sepajateness of the Church The Jesuit theologians ..... Church and State each perfecta socieias Marriage under the new conditions .... Lutheran : exclusively civil .... Calvinist : regulated by Divine Law, administered by the State ...... Partial acceptance of human law Divorce ....... The result of crime .... Involving dissolution of marriage . Wide extension of Reformed theology and law The Counter-Reformation ..... Canon Law continuing to operate. But in the Church as a separate society To which the control of marriage is left by the State The special case of England .... A continuing fragment of the medieval polity . Resistance to. Jesuit and Puritan separatism The policy of the Test Acts . Church and State not entirely separate until 1828 Marriage controlled by the Spiritualty . In spite of the legislation of Henry VIII Further legislation by the Spiritualty Also by the Temporalty .... Settlements in equity .... The crime of bigamy .... r63 164 165 165 167 168 169 170 171 172 173 174 175 176 177 179 180 181 183 186 ANALYTICAL SUMMARY XXI The divorce of Lord Roos Restraint of clandestinity The Marriage Act of 1753 The complete separation of Church and State . Tendency towards a civil law of marriage Civil Marriage In France . In Europe generally In England Other arrangements Divorce Impediments The Present Position Antagonism of Church and State Civil marriage Impediments Divorce Injurious to pubUc morals The result of history . A modus Vivendi to be sought Distinction of functions Return to spiritual discipUne . Importance of the decree Ne temere The need of an uniform system . On the basis of Natural Law With the least possible interference of human law The duty of a Christian .... In the ordering of his own conduct . In support of the authority of the Church Especially for discipUne Particular needs of England . In support of the authority of the State Reformation of laws Particular needs of England . In promotion of mutual toleration of Church and State Appendix A 1. The Decree Ne temere ..... 2. Subsequent Decrees ..... Appendix B Letter of the Archbishop of Canterbury Appendix C A proposed mode of Contracting Marriage PAGE 187 189 191 193 196 197 199 200 201 205 206 208 209 211 212 313 219 220 221 224 225 226 227 231 232 MARRIAGE IN CHURCH AND STATE CHAPTER I Of Marriage in the Order of Nature MARRIAGE is described as "an honourable estate instituted of God in the time of man's innocency." Translated into less symbolic language, this means that marriage is an integral part of the natural order in which human society is constituted. That state of things is natural in which man finds the fullest and most satisfac- tory development of his nature. But this is possible only in a social order. As a mere individual, man can hardly exist at aU, and certainly cannot live the fulness of his life. Some kind of community is necessary for him, and that kind of community in which genuine human functions are best fulfilled is the kind properly natural to him. Aristotle, therefore, conceiving the Greek city as the final and perfect form of human society, described man as " naturally a civic animal." Historic proof that no one form of organization is exclusively necessary for humanity compels the enlarge- ment of this description ; but the principle on which it was based remains true, and we may recast it into the aphorism that man is naturally civilized. The truth of this must be M.C.S. ^ B 3 OF MARRIAGE IN THE ORDER OF NATURE maintained on two faces. On the one hand, civilization is not an artificial addition to man's natural endowments ; on the other hand, the true natural man must not be sought in the state of savagery, but in the most complete state of civiUzation of which he is capable. This complete state is doubtfully ascertainable. Ethics and pontics are not exact sciences. We must suppose a creative idea, a divine purpose, to which human life more or less remotely conforms. This imperfect conformity is one of the chief perplexities of nature. For the most part we see life maintained in stable conditions, with specific characters ; we can find traces of a progress by which those characters have been attained, but a point is reached where they seem to become fixed ; the species is unalterable, breeding true and transmitting habits hable to little or no variation. The human species has such determined charac- teristics, but has also other characteristics remarkably vari- able. Human hfe is not in a stable condition, like that of most animals ; human society has not reached a static con- dition, like that of bees or of ants. The divine purpose is imperfectly fulfilled, by reason of the element of perversity which is perceptible in human nature, and which is theolo- gically attributed to a falhng away from original righteous- ness, or conformity to the creative idea. If there is progress towards the ideal, there is also deterioration ; if there is growth there is also decay. There is not, as Aristotle thought, one fixed standard of civilization, though such a standard may conceivably be attained. But none the less certain fundamental institutions can be made out, which are almost constant in human life, though subject to wide variations in detail ; and in most cases an ideal can be ascertained, the practice falling short of it, or being deflected from it, in varying degrees. Such an institution is marriage. Marriage is not an artificial regulation of human life, but A FUNDAMENTAL INSTITUTION 3 a natural necessity. The continuance of the species re- quires a certain association of man and woman. For the mere begetting of children, a merely passing union would suffice ; but more is required. The child requires close attention and long continued care. This is seen in the case of some other animals also, but nowhere in the same degree. For most of such cases, the ordinary provision of nature is a close association of the parents during the growth of the offspring, the female devoting herself almost entirely to them, the male guarding her and supplying her needs. This double parental instinct varies in strength ; it is probably seen at its intensest in man. But here it is reinforced. Unhke other animals, man gives birth to fresh offspring while those already born are still entirely depen- dent on the parents. It follows that a temporary union, having in view the bearing of a single child and terminable when the child is able to go alone, will not suffice ; child- bearing goes on for several years, while the firstborn and others are slowly growing to maturity. The connexion of the parents, therefore, is indefinitely prolonged, extending even beyond the age of child-bearing. There results a com- munity of interests, an interlacing of habits. As a conse- quence of this prolonged intimacy there appears the singu- lar phenomenon of human love, which touches on the one hand the ordinary sexual desire of the animal world, but extends on the other hand into an habitual affection from which the element of desire may be entirely eliminated. In the same way the parental and filial affections of the human species pass the bounds even of the most devoted care shown by those animals which part from their young after a brief period of protection. In a word, the human species is naturally constituted in families. Marriage is nothing else but this permanent connexion of man and woman for the purpose of producing and raising 4 OF MARRIAGE IN THE ORDER OF NATURE children. Being thus natural, it is divinely ordered ; all that can be ascertained to be necessary for its natural per- fection will be recognized as prescribed by God. The ele- ment of perversity in human nature forbids us to suppose that all the divine prescriptions wiU be exactly or generally observed ; the divine law of marriage cannot be recon- structed by a mere codification of human practice ; we must look for many aberrations. It is useless to attempt to go behind social developments and investigate the habits of primitive man, for primitive man is inaccessible ; those savage tribes whose civihzation is most elementary are, in respect of marriage, bound by elaborate rules, the out- growth of age-long custom ; and, since marriage is an affaii- only of adults, we cannot find traces of its original form in those vestiges of a remote past which physiology teaches us to recognize in the instincts of children. But the in- evitable imperfection of an historical survey matters little; it is not the beginning of marriage that we should consider, but the end ; the growth and decay of social conventions shows man struggling to achieve what nature dictates ; in his efforts, even the most halting, we shall find traces of the formative idea ; the more perfect civilization wiU ap- proach nearer to the ideal, and a faiUng civilization will be marked by fresh aberrations. A purely historical study of this kind may be expected to give valuable results, but they wiU be dashed with un- certainty. What is the standard by which we are to mea- sure the higher civihzation, and how shall we note the turning point to a downward course ? It is a common practice to make the treatment of marriage a criterion, and we are involved in a vicious circle if we simultaneously determine the true nature of marriage by reference to civi- lized practice. It is difficult to compare two civiUzations differing in time and place and conditions ; men pass a DIVINELY ORDERED 5 favourable judgment on their own customs, and the greatest complacency has prevailed at times in which history sees evidence of general dechne and retrogression. If the true nature of marriage can be ascertained only from the cur- rent practice of human society, that will seem true which a self-satisfied generation finds to its taste ; history may correct the judgment, but cannot guard against new errors. There is no finality in the flux of human opinion ; man cannot attain the ordered state of creatures which he reckons incomparably inferior. Christianity opens a way out of this intolerable laby- rinth. The Christian is confident that he has the express guidance of God in the more difficult passages of his moral life, and particularly in respect of the true nature of mar- riage. Since no man is ever merely individual, the redemp- tion of man means not only the deliverance of the indivi- dual from the effects of sin, but also the reconstitution of human society according to the WiU of God. In the Chris- tian scheme, neither result is brought about by a mere act of omnipotence ; grace is given by which man may work out, through many temptations and failures, his own salva- tion. Grace and truth go together ; sufficient knowledge of the.Divine Will is needed if its fulfilment is to be achieved. Therefore a declaration of the purpose of God in regard to human life is a part of the Christian scheme. It is not detailed, categorical, aU-embracing ; it is not a law of ordinances ; it affords just so much light as may enable men to walk warily. The revelation of God through Jesus Christ touches some things naturally unknowable ; it touches chiefly things knowable but obscure. St. Paul, indeed, seems to deny the obscurity. " That which may be known of God is manifest," he says ; "for from the creation of the world His unseen things are perceived and understood by means 6 OF MARRIAGE IN THE ORDER OF NATURE of His works." ^ Ignorance therefore, he would say, is inex- cusable, being due to human perversity. That is an ex- tremely severe judgment, designed to bring home to the conscience the general guiltiness of man ; it does not alter the fact that to ordinary men of perverse minds, if not to the human mind in its integrity, the purpose of God is obscure, and the definite principles of their own social exis- tence are hard to seek. The Christian revelation throws new light on the social order of humanity. The nature of revelation, as touching these things, can- not be misunderstood. They are things in the order of nature, being ordered as such by God. A revelation from God will not, therefore, proclaim a new law ; the wiU of God has been imposed on nature from the first, and the divine law was legible in nature, however imperfectly read. We must not suppose a less perfect law of nature superseded or completed by a more perfect law of revelation. The divine law is one and continuous, in nature and in revela- tion.* The divine law of marriage is nothing else but the order of nature. Revelation does but enable us to under- stand it more perfectly. We therefore find that our Lord Jesus Christ, when asked a question about the divine law of marriage, referred to what had been done " from the beginning." This beginning He was content to describe in the language of the Book of Genesis. It must not be inferred from this that a rule propounded in the Scriptures of the Old Testament, even with the highest sanction, is necessarily an expression of the Divine Will ; for our Lord immediately afterwards told ^ Romans i. 19-20. * Cp. Isidore, Etym. v. 4 : lus natnrale est quod in lege et in evangelio continetur. More comprehensive is the definition of the Institutiones, hb. iii., tit. 2. lus naturale est quod natura omnia animalia docuit. THE ESSENTIAL NATURE OF MARRIAGE 7 the same questioners that a certain regulation of the Mosaic law was a mere concession to human perversity and the hardness of men's hearts, in derogation from the creative idea of God.^ It is only in the teaching of the Gospel, in the genuine Christian tradition, that we have a conclusive declaration of the divine purpose. With this help we have to determine more particularly the true nature of marriage. Marriage is an entire union of man and woman. For the purpose of generation, a momentary connexion suffices, with complete separation following. In a highly artificial society, such as that conceived in the Republic of Plato, children so bom might be reared in common, as foundhngs and orphans are actually reared in most civilized commu- nities. But this would be a frustration of the natural in- stinct of parentage, and the practical evils flowing from it are sufficient proof that the suppression of that instinct is not an advance in the fine of natural development. A partial union, directed exclusively to the business of raising children and allowing the separation of man and woman in regard to other interests, may suffice for the material needs of the offspring ; such connexions are not unfre- quent in societies where artificial distinctions of rank hinder a closer union ; but the moral influence of one parent is inevitably weakened, and the fuU purpose of guardian- ship is not attained. This can be achieved only when the parties to the union enter fully and unreservedly into one another's lives, or rather into a new joint life which they share on equal terms. In the words of the Roman jurist, marriage is viri et muKeris coniunctio inMviduam vitae con- sueiudinem continens* St. Paul insisted that carnal copulation, even of the most transitory kind, effects a real union : " He that is joined 1 St. Matthew xix. 4-8. = Instit., lib. i., tit. 9. 8 OF MARRIAGE IN THE ORDER OF NATURE to a harlot is one body." ^ The natural conjunction is evident when it .produces offspring, derived inseparably from the two parents, and the Apostle apphes the maxim, " The two shall become one flesh." This emphatic judg- ment has left its mark on the ecclesiastical law of affinity. If a connexion so transitory, entered upon for the mere gratification of appetite- without any but the most acci- dental regard for the procreation of children, can be thus described, much more does the description fit the perma- nent union of husband and wife for the full purpose of mar- riage. To this the maxim originally applied, and with that application it was incorporated by our Lord into His own teaching.'' This merging of two Uves into one has been obscured by a one-sided conception of the relation, due to the prac- tical superiority of the man over the woman. His greater strength, activity, and pubUcity, contrasting with the com- parative retirement necessary to a woman engaged in the task of child-bearing and nurture, have made it seem, com- monly though not universally, that the wife is absorbed in^o the family of her husband. A result is seen in the practice of the Roman law, by which a wife passed from the patria potestas of her father to that of her husband, or to that of his father if he himself were not yet discharged. Similar ideas pervade the marriage customs of almost all races, in whatever degree civilized. They have some foun- dation in nature, since they rest on the normal conditions of sex, but they depart from nature in their denial of the individuality of the human being. This individuality is no less characteristic of human life than the social order without which human life is impossible ; in marriage, rightly understood, the two characteristics are equally ^ I Corinthians vi. i6. 2 St. Matthew xix. 5 ; St. Mark x. 8. THE RELATION OF AFFINITY 9 recognized ; an individual man and an individual woman coalesce into a conjoined life, becoming an individual pair from which springs a new society. Marriage is properly a discharge from parental control ; husband and wife, without loosing the natural ties of blood connecting them severally with their former kindred, pass away from the famihes in which they were bred to form in their union a new family. It is the teaching of the Gospel, appropriating once more and reinforcing an ancient maxim. Not the woman alone, but also the man, " shaU leave his father and mother, and shall cleave to his wife ; and the two shall become one flesh." From this coalescence it follows inevitably that the hus- band becomes akin to the kindred of his wife, in the same degree as herself, and she to his. What the more usual practice of mankind acknowledges only in the case of the woman is true also by parity of nature in the case of th6 man. The relation known as affinity is no less natural than that of consanguinity. This close union of husband and wife has the further consequence of engendering a new kind of natural affec- tion. The tie of near kinship is felt for a time by animals of many species ; with men, bred and nurtured in families, it subsists longer and even extends beyond a generation ; a man and a woman bind themselves together in wedlock with a feeling of pecuHar intensity. Sexual attraction, which affords the natural impulse to marriage, passes into a love rooted and estabhshed in habit. It has been well said that a wife's love for her husband becomes above all love for the father of her children ; frustration of motherhood sometimes produces deplorable disorders, but the bare intention of procreating children in common, even if disap- pointed, wiU bring about a sense of identity, of a single purpose in Ufe, which makes the closest bond of human 10 OF MARRIAGE IN THE ORDER OF NATURE affection. " Husbands should love their wives," says St. Paul, " as their own bodies. He that loves his wife loves himself ; for no man ever hated his own flesh, but nourishes and cherishes it." ^ Indeed there is here found a secondary cause for the divine institution of marriage : "It was ordained," sajre the homily in the Form of Solemnization of Matrimony, " for the mutual society, help, and comfort, that the one ought to have of the other, both in prosperity and adver- sity." A marriage unfruitful in children may thus find a place in the economy of nature. From this complete unity of life there seems to foUow naturally community of goods. Some degree of community is necessary if the end of marriage is to be attained. The children are a joint charge, and the maintenance of a home can hardly be managed by a partnership of limited liabiUty. The long continuance of an unequal discrimina- tion of law in favour of the husband has obscured in some countries the obvious and equitable requirements of nature, paving the way for an excessive independence in married hfe ; frequent failures of duty on the part of husband or wife make it necessary in practice to give each of them legal securities against the crime or carelessness of the other ; but community remains the true basis of economics in the family. The formula of marriage, " With all my worldly goods I thee endow," indicates the normal state of things ; and it should in effect be mutual. Marriage is thus, in the order of nature, an entire con- junction of two lives, to be hved as one for the purpose of achieving the end proposed : totius vitae consortium. The marriage-bond is exclusive ; Coniunctio solius cum sola. An adumbration of this principle is seen in the fierce jealousy with which certain wild animals keep their mates 1 Ephesians v. 28-9. AN EXCLUSIVE UNION ii to themselves. In men, the instinct of jealousy is reasoned, without losing much of its peremptoriness. Carnal inter- course of husband or wife with another is all but universally recognized as one of the gravest offences against social order ; adultery is a private wrong of so exasperating a char- acter that on grounds of poUcy it is in many communities treated as a public crime ; elsewhere, private vengeance is condoned, or even permitted. But a very different measure is meted to husband and to wife. The adultery of a husband with an unmarried woman is treated as a minor offence, and the wife's jealousy is seldom justified by law or social opinion if it runs to extreme action ; a wife's adultery is regarded as a much graver wrong. Christian doctrine allows no such distinction, reinforcing the natural instinct of jealousy on both sides alike by indiscriminating condemnation of adultery as a sin at once of luxury and of in- justice ; but this teaching has not succeeded in controlling the social judgments, even of Christian communities. There is, indeed, a difference between the two cases, imposed by nature ; the adulterous wife may put upon her husband a spurious offspring, the adulterous husband can do no such thing. If the sin against chastity is identical in the two cases, the effect of the sin of injustice is greater in one case than in the other ; social custom and law can hardly fail to recognize the difference, and to visit the offence more severely where the wrong done is the greater. But a general condonation of adultery on the husband's part, coupled with deprecation of jealousy on the wife's part, is characteristic of a corrupt state of society in revolt against the dictates of nature no less than against the teaching of Christianity. It destroys the idea of marriage as a conjunc- tion solius cum sola. Equally in conflict with that idea is the legal institution of polygamy. So widespread, however, is this, that it may 12 OF MARRIAGE IN THE ORDER OF NATURE seem rash to declare it contrary to nature, and grave opinions can be quoted in favour of its being permissible by natural law. That of St. Augustine is conspicuous. He takes his stand upon a physiological ground ; plurality of wives, as distinct from plurality of husbands, is not contrary to the nature of marriage, " plures enim feminae ab uno viro fetari possunt, una vero a pluribus non potest." ^ He supports this by the fanciful analogy of one master having many slaves, while one slave can have only one master, and by the more dangerous argument that one true God is the Lord of many faithful souls, while for a soul to go after many gods is the fornication of idolatry. This might certainly be pleaded, if pertinent at all, in favour of polygamy among Christians, since the figure of marriage is expressly used to illustrate the relation of the faithful to Christ. But St. Augustine, with many others following him, treats the restriction to monogamy as an arbitrary discipline imposed by divine authority on Christians, thus introducing the con- fusion inevitably caused by the supposition of a divine law over-ruling the law of nature. He seems to have been moved to this mainly by an unwillingness to attribute to the Fathers of the Old Testament any ignorance or disregard of a divine institution ; the concubinage of Abraham, the polygamy of Jacob and of David, were therefore to be justi- fied as in accordance with natural law, and he laboured to maintain that in all such cases the one motive was a desire to fulfil the divine injunction of fruitfulness.^ It is an obvious objection to this theory that no trace can be found of any express prohibition of polygamy in the preaching of the Gospel. If the maxim, " The two shall become one flesh," can be stretched to imply such prohibi- tion, which is a very doubtful resource, there is no new rule 1 De bono coniugali, 17. ^ De bono viduitatis, 7. THE EVIL OF POLYGAMY 13 introduced, for appeal is made to the primary institution of marriage. The maxim is directed against an abuse of the institution which is remotely, if at all, connected with poly- gamy ; it forbids separation from one wife, not the addition of another. Attempts have been made to bring into this connexion St. Paul's rule requiring a bishop to be " the husband of one wife," as though polygamy were allowed in ordinary Christians and forbidden only to those called into the sacred ministry ; but this interpretation is impossible in view of the corresponding regulation about consecrated widows ; ^ if it could be shown that plurality of wives was tolerated in any of the communities to which the regulation extended, it is certain that plurality of husbands was un- known. There can be no doubt that the rule was intended to exclude those who had contracted a second marriage after separation by death or divorce. In the absence of any express prohibition of polygamy, it is invariably assumed by the writers of the canonical books of the New Testament, and by the constant witness of the Christian Church, that monogamy is the rule. It is assumed in the condemnation of marriage after divorce ; for, if it were lawful to take a second wife while retaining the jftrst, it would a fortiori be lawful to take a second after repudiat- ing the first.2 It may be taken for certain that the lack of any express prohibition is due to the fact that the practice of polygamy was unknown among those to whom the Gospel was preached. But these men either had the Scriptures of the Old Testament in their hands, or were speedily intro- duced to them as containing the oracles of God ; and these books recorded without blame the polygamy of the Fathers. 1 I Timothy iii. 2 ; v. 9. * But conversely, the allowance of successive polygamy in case of divorce [infra, p. 104) cannot be pleaded in justification of simul- taneous polygamy, which alone is here in question. 14 OF MARRIAGE IN THE ORDER OF NATURE Therefore, if it was not necessary to warn men against fol- lowing this example, it must be inferred either that polygamy was still permissible, or that men were already convinced of its natural impropriety. The former alternative being inadmissible, the latter is imposed. It follows that the obhgation of monogamy was learnt by the Hght of nature. With this all Christian practice agrees. Unsupported by any positive prohibition, the Christian witness against polygamy has been unwavering. Whatever toleration may at times have been accorded to iUicit connexions, the union solius cum sola has been recognized as the only true marriage. Apart from the completely abnormal cases of the Anabaptists and the Mormons, the only serious attempt of any one claim- ing the Christian name to relax this rule is found in the allowance of a second wife accorded by Luther and Melanch- thon to Phihp of Hesse ; the secrecy with which this was done, and the shame of its authors on detection, are the most eloquent assertion of the rule which they violated. If monogamy is required by natural law, a reason for it must be found in nature. Theologians from the time of St. Thomas Aquinas commonly seek this in a consideration of the hona matrimonii, the three ends of marriage defined by St. Augustine, proles, fides, sacramentum.^ What mihtates against these is held to be contrary to natural law. Plurahty of wives does not, says St. Thomas, or his reporter, in any way hinder the procreation of children ; it does to some extent injure the mutual trustfulness and accommo- dation which is fides ; it entirely ruins the sacramentum, which is the mystical signification of the union of Christ with the one Church. Thus it is contrary to nature in respect of the second and third ends of marriage.* Consideration of the sacramental character of marriage is ^ De bono coniugalt, 24, and De Genesi, ix. 7. * Sum. Theol., Suppl. 65, i. THE EVIL OF POLYGAMY 15 postponed ; but here it may be remarked, first, that a sacra- ment is not strictly in the natural order, and that, even if marriage be supposed to have been instituted with a view to its sacramental use, the violation of that ultimate pur- pose can hardly be construed as a contradiction of the original institution ; secondly, that St. Thomas himself, or his reporter, allows a certain congruity of polygamy with the mystical significance of marriage, " quia quamvis non signi- ficaretur coniunctio Christi ad Ecclesiam, inquantum est una, significabitur tamen per pluralitatem uxorum dis- tinctio graduum in Ecclesia ; quae quidem non solum est in Ecclesia mihtante, sed etiam in triumphante." ^ In the same place he allows also that fides manet ad plures. His theological reasons for condemning polgyamy therefore break down. Firmer ground is needed. It may without difficulty be secured in a consideration of the approximate equahty of the sexes under ordinary natural conditions. Abnormal conditions are known to produce a preponderance of one sex. The practice of polygamy is probably due, in part, to a redundance of women, in part to the selfish aggrandise- ment of powerful men. These causes in combination wiU account for its establishment by law, but it obviously can- not be general without an enormous disparity of numbers in the two sexes ; in point of fact, it seems to be usually a privilege of chieftainship or of wealth. But a practice due to abnormal conditions, and open only to persons abnormally placed, is no part of the order of nature. But further, polygamy can be shown to militate actively against the well-being of the race, which must be assumed as a true object of the natural order. It is found in practice to make for less fecundity. The eugenic plea that it imphes breeding from the stronger and more virile stock, true in 1 Sum. Theol., Suppl., 65, 2. i6 OF MARRIAGE IN THE ORDER OF NATURE the case alike of wild beasts and of cattle, is nullified in the case of men by the diminished efficiency of fatherhood and of education within the family. The gravest objection, however, is that under normal conditions polygamy con- demns a proportion of one sex to sterility, and to the moral evils flowing from the frustration of natural instincts. This result is recognized in a significant manner ; the employ- ment of eunuchs is a regular accompaniment of the practice. To these more public evils should be added a private wrong suffered within the marriage-bond. Polygamy destroys the mutuality of right and duty on which the union of hus- band and wife properly rests. " The wife has not command of her own body," says St. Paul, " but the husband ; and so too the husband has not command of his own body, but the wife." ^ The due cannot be freely rendered, except on condition that each man has but one wife, and each woman but one husband. This last argument was urged by St. Thomas in his more philosophic mood, as also the fine con- tention that polygamy destroys equahty of love between husband and wife, introducing a servile relation. " Apud viros habentes plures uxores," he remarks, " uxores quasi ancillae habentur." ^ Polygamy, whether in its usual form or in the rarer form of polyandry, is thus seen to be contrary to natural law ; no supernatural revelation is required for its rebuke, and none has been given. The practice, however widespread, is an aberration ; the civilization which insists on mono- gamy is in the true order of human development. Marriage in the order of nature is the union solius cum sola. The entire union of man and woman effected by marriage is indissoluble except by death. That death dissolves it is evident from the fact that its whole aim is concluded within ^ I Cor. vii. 2-4. * Summa contra Gentiles, iii. 124. INDISSOLUBLE EXCEPT BY DEATH 17 the compass of this present hfe. The obvious inference is supported by the answer of our Lord to the Sadducees that " in the resurrection they neither marry nor are given in marriage." ^ It is the constant teaching of Christianity. " A wife is bound," says St.Paul, " for so long time as her husband lives ; but if the husband be dead, she is free to be married to whom she will." ^ The discouragement of second marriages, which has been a marked feature of some stages of Christian discipline, is not due to any doubt on this head, but only to the conviction that widowhood, like virginity, is a higher state. " She is happier if she abide as she is. after my judgment," adds St. Paul ; " and I think that I have also the Spirit of God." " A wife is bound for so long time as her husband lives," says the Apostle ; and this, like every other obhgation in marriage, is mutual. It is unquahfied. But it may be urged with some show of reason that other circumstances, as weU as death, put a natural end to the union. The first purpose of marriage is frustrated by sterility ; a violent dislike or incompatibility of temper may drive the parties asunder, and so frustrate both the hope of children and the good of family Hfe ; enforced separation, as by sentence of law, insanity, or certain kinds of disease, may have the same effect ; adultery, at least on the wife's part, involves a breach of the purpose of marriage even more serious. By the operation of these causes, it has been argued, the union is naturally dissolved, no less than by death. But marriage is not instituted for one cause only, so as to be frustrated by sterility,' nor is it a mere social union entered upon for certain specific objects with reservation of the right to withdraw from it in case of failure. It is an 1 Matt. xxii. 30. * i Cor. vii. 39. Cp. Rom. vii. 1-3. * See, however, below, p. 28, for the case of impotence. M.C.S. C i8 OF MARRIAGE IN THE ORDER OF NATURE entire union, completed by natural copulation prior to the achievement of any such objects, and retaining its effect in spite of subsequent disappointment. It is a natural union, as intimate and indestructible as that of parent and child. The purpose of nature in the relation of parent and child may be frustrated by separation as completely as in the case of husband and wife, but the parent does not cease to be parent or the child cease to be child ; their mutual obhgations may be obscured or suspended, but cannot be definitely cancelled. " Marriage is ideally indissoluble," says a recent writer, who perhaps does not go the whole way with me in tracing consequences, " the relation of husband and wife being hke that of father and son, or brother and sister, where there may be casual alienation or even separation without altering the fact of the relationship." ^ If marriage were a mere con- tractual relation, an artificial partnership, it would be termin- able not only by a failure to achieve its object, but even more equitably by mutual consent ; because it is consti- tuted in the order of nature, and not only at the will of the parties, it is indissoluble except by an event equally in the order of nature ; and this can be found only in death. By virtue of nothing short of this can the husband cease to be husband, or the wife cease to be wife. Against this conception of marriage as naturally indis- soluble is set the general practice of mankind allowing its dis- solution for certain causes, and the marriage of the separated husband and wife to fresh partners. So profoundly has this practice affected the customary morahty of human society, that grave doubts have been entertained whether marriage should be regarded as indissoluble by natural law, and not rather as made indissoluble by positive enactment. Oppressed by the precedents of the Old Testament and by his J- D. Macfadyen, The Messenger of God, p. 93. INDISSOLUBLE EXCEPT BY DEATH 19 respect for that Roman jurisprudence which asserted with the utmost solemnity the perpetual obUgation of natural law, St. Augustine taught that only in the civitas Dei, or Christian commonwealth, was this quahty impressed on the union of man and wife ; in the natural order they might separate, as allowed by Roman law, and contract fresh marriages ; entering into the Church, they lost this hberty, being more straitly conjoined by virtue of the sacramental eihcacy given to the natural institution.^ His opinion has had immense effect on Christian teaching, but he was not entirely con- sistent with himself ; in discussing St. Paul's directions about separation from an unbeheving consort he definitely treated the presumably pagan marriage as debarring the Christian party from any fresh union,* and as being therefore fundamentally indissoluble. If it were not so, the Christian party, repudiated by the other, would be free to marry, and this interpretation of St. Paul's teaching has, in fact, been accepted by modern theologians. The natural law being thus called in doubt, we look for guidance to the evangehc revelation. It wiU be seen that two questions are raised : {a) Whether it is permissible for husband or wife on any accoimt to withdraw from the close union which is marriage ; and (6) if this be allowed, whether the marriage is thereby dissolved so that the parties are free to enter into fresh unions. Such separation is properly called divorce, whether it impUes dissolution of the mar- riage bond or not ; it is only by an abuse of language that the word is otherwise defined. We have to ascertain, then, from the teaching of the Gospel, whether divorce is permissible ; in what cases it may be allowed, if 1 See especially, De mtptiis et concupiscentia, i. 10. Observe also that he objected to making marriage after divorce a bar to baptism. Dt Fide et Operibus, 19. * D» adulterinis coniugiis, i, 25. 20 OF MARRIAGE. IN THE ORDER OF NATURE at all ; and whether it effects a dissolution of marriage. St. Paul's ruling is peremptory. Replying to specific questions put to him from Corinth, he wrote : "To the married I give commandment — not I, but the Lord — that a wife is not to be separated from her husband (but if she be separated let her remain unmarried, or be reconciled to her husband), and that a husband is not to put away his wife." ^ So far, no exception of any kind is allowed ; in the case where separation has de facto taken place, a fresh marriage is forbidden. A little later, he answers a question about the remarriage of widows, which he allows, but with reiter- ation of the principle that the bond cannot be dissolved while the parties are both aUve. But here comes in the one exception, commonly known as the privilegium Paulinum. It is introduced by the phrase, " To the rest say I, not the Lord." Who are these ? He has addressed two classes, the unmarried and widows, whom he advises to remain unmarried ; the married, whom he warns against divorce. So difficult it is to find a third class, that some have referred the words in question to the former of these classes, as though he said, " To the married I forbid divorce in the Lord's name, but to those others I only give my own advice." The construction of the whole passage, however, does not favour this interpretation, and the phrase seems clearly to be an introduction to what follows. There is then a third class of those who do not belong to either of the previous categories. It is plain who they are. They are Christian men or women, mated with unbelieving consorts. They seem to be set in a class apart because the Apostle addresses none but believers, and therefore, when he speaks to the married, he has in view those cases only in which both parties are Christian ; for these others there is something else to be said. But now he answers the question put to him ^ I Cor. vii. lo-ii. MARRIAGE AFTER DIVORCE 21 on his own authority, not alleging any express teaching of the Lord. " If a brother has an unbeheving wife," he says, " and she consents to Uve with him, let him not put her away ; and a wife who has an unbelieving husband, and he consents to live with her, let her not put him away. . . . But if the unbelieving party makes separation, let it be so ; the brother or the sister is not enslaved in such cases." Such is the Apostle's ruling, divested of the arguments with which he pleads for its acceptance. Its meaning is quite clear, but those arguments are helpful to a fuller under- standing, since they suggest the form of the question which he was answering. There was probably a definite rule that Christians should marry, as he casually remarks lower down, " only in the Lord " ; what was the duty of converts already married whose consorts remained unbelieving ? Should the marriage stand, or should they take advantage of the law which allowed divorce ? St. Paul rephes that " the unbehev- ing husband is sanctified in his wife, and the unbeheving wife is sanctified in the brother." The marriage may therefore stand. The Christian party is not merely allowed to con- tinue in this union, but is forbidden divorce. If, however, the unbelieving party effect a divorce, no steps need be taken to hinder it. What steps could be taken ? St. Paul probably has in mind the case of the unbeliever demanding, as a condition of continued wedlock, something inconsis- tent with the profession of a Christian. A Christian is not a slave, he protests. The question remains whether the Christian party, being so divorced, is free to marry. St. Augustine, as above noted, says not. The contrary opinion has generally prevailed, but it rests on the supposition that marriage is not naturally indissoluble, which we are now examining. The Apostle himself gives no ruhng,i and it is 1 It is impossible that S^SovAwTat, v. 15, should be equivalent to SeSrroi, v. 39, aa OF MARRIAGE IN THE ORDER OF NATURE probable therefore that he leaves this special case under the general rule that a wife separated from her husband must remain unmarried. What St. Paul taught the Corinthians in reply to an ex- press question, he wrote also more at large in his epistle to the Romans. " Do you not know, brethren (for I speak to men who know law), that the law has dominion over man so long as he lives ? For the married woman is bound by law to her living husband, but if the husband die she is discharged from the law of her husband. So then, while the husband lives, she wiU be called adulteress if she be joined to another man ; but if her husband be dead, she is free from the law, so as not to be an adulteress when joined to another man." ^ It should be observed that the Apostle is here appeahng to a known principle, in illustration of an argument concerned with other matters. There was a recognized Christian law. Was this peculiarly Christian, or was it the natural law rein- forced by Christian teaching ? It rested on a saying of the Lord, currently reported among the faithful. For further elucidation, that saying must be identified. Such a saying is recorded in four places of ,'the canonical Gospels, two of which are clearly identical ; the others are in a separate setting. In the tenth chapter of St. Mark and the nineteenth of St. Matthew is the story of the Pharisees who put to our Lord the test question whether it was lawful for a man to divorce his wife ; St. Matthew adds the particular that they asked whether it were lawful " for every cause," glancing at the later practice of the Jews. He answered by a reference to the primary institution of marriage, by which man and woman become " one flesh," deducing the consequence, " What God joined together let not man put asunder." Confronted with the Mosaic legislation about divorce. He replied that 1 Rom.|^vii. 1-3. MARRIAGE AFTER DIVORCE aj this was allowed because of men's hard-heartedness, which has been variously interpreted to mean their stubborn refusal to foUow the divine ideal or the harshness with which they would treat a wife who could not be dismissed. Then follows a gnomic saying which St. Mark reports to have beendeUv- ered in private to the disciples as a further instruction, and which is also recorded, without note of time, elsewhere in St. Matthew and in St. Luke. It cannot be doubted that this was the sajdng of the Lord to which St. Paul referred. It will be well to place side by side the forms in which it is recorded, with verbal variations. Matthew v. 32. Every man divorcing his wife, apart from the cause of fornication, makes her commit adultery ; and whoever marries a divorced woman commits adultery. Matthew xix. 9. Whoever shaU divorce his wife, unless for fornication, and marry another, commits adultery ; and he who marries a divorced woman commits adultery.^ Mark x. 11. Whoever shall divorce his wife and marry another, commits adultery against her ; and if she, after divorcing her husband, marry another, she commits adul- tery. Luke xvi. 18. Every man divorcing his wife and marry- ing another commits adultery ; and a man manying a woman divorced from her husband commits adultery. It is to be observed that this teaching of our Lord is expressly based on the natural institution of marriage. He is not giving a new law to Christians. He is enforcing and explaining the natural law which had been corrupted through man's hard-heartedness. On this ground divorce is expU- citly forbidden ; and further, if divorce takes place de facto, marriage of the divorced is forbidden as involving the guilt of adultery. That is to say, in spite of divorce the natural 1 The text of this passage is doubtful, but not in any particular seriously affecting the sense. 24 OF MARRIAGE IN THE ORDER OF NATURE relation, the vinculum, remains intact. If it were not so, union with a divorced woman, however strongly condemned on other grounds, could not be called adultery. It is adul- tery, and therefore the previous marriage-bond remains unbroken. The one excepted case calls for brief consideration. It is pecuhar to St. Matthew. But further, it contrasts re- markably with the general manner of our Lord's teaching. Wilhelm Bousset has remarked with justice on His practice of lapng down the commandment of God in all its absolute- ness in face of the endless distinctions and exceptions which made the system of the Pharisees.^ There is no other ex- ample of such an exception in the Gospel ; the rule of con- duct is laid down peremptorily, and whatever exceptions or economies may be necessary in practice are left to the con- science or to the regulation of human authority. Bousset, therefore, bluntly rejects this exception as an interpolation. There is no ground, however, for doubting its authenticity in the text ; but it is not improbably a gloss, inserted by the evangelist, calling attention to a practice recognized in the Church when he wrote. The consideration of its meaning may therefore be defended until we come to speak of mar- riage in relation to human law. It is sufficient to say here that the excepted cause justifies only the separation of hus- band and wife ; it is interjected parenthetically for this pur- pose, and does not affect the subsequent judgment that the marriage of the divorced is adulterous. An exact compari- son of the second passage from St. Matthew with the cor- responding citation from St. Mark makes this abundantly clear. So it was understood without hesitation by all Chris- tian writers commenting on the words, until the entangle- ment of the Church with the Empire in the fourth century 1 Bousset, Jesus, p. 144 (Engl, transl.). EFFECTED BY CONTRACT 25 moved men to find some common ground for Christian teaching and Roman law. Those who held the general opinion that our Lord expressly sanctioned the divorce of an adulterous wife, and those who held, as Hermas,i that it was even sinful to cohabit with her, nevertheless emphati- cally declared that the husband dismissing her would himself be guilty of adultery if he married another. The bond of marriage, that is to say, remains unbroken by divorce. Moreover, this teaching is grounded on the natural institu- tion of marriage. Marriage is therefore indissoluble in the order of nature. This intimate and indissoluble union of man and woman is effected by means of a contract. Since two individual hves are to coalesce in one, without prejudice to the true personality of either party, they must come together by a free act of mutual surrender and acceptance. The hus- band, says St. Paul, does not retain full control of his own body, nor the wife of hers ; an abnegation which would be intolerable, and even immoral, on any other basis but that of mutual consent. This free contract of marriage, pro- perly caUed the wedding of man and woman, is more or less recognized in all forms of civilization ; but the pre- dominance of the male, and the imperfect freedom of the unmarried woman, usually make it a one-sided affair ; yet even marriage by capture, which is common to many savage races and curious vestiges of which linger in others of the most highly developed culture, differs from mere rape in assuming the contented acquiescence of the prey ; indeed, the analogous habits of the brute creation suggest that the foray, real or pretended, looks not so much to the bride herself as to the males of her tribe from whom she is stolen. It is not here, however, but in a state of complete civili- zation, that we must seek evidence of the true nature of the •• Pastor, Mand., iv., i. Missing Page Missing Page 28 OF MARRIAGE IN THE ORDER OF NATURE is known and received ; there would have been no genuine marriage among the Jews or the other peoples to whom the Gospel was preached. The fact that from the first converts to the Church were received as truly married effectively disposes of this question. Since marriage is a natural institution, it must be taken that those who marry intend the natural union with all its consequences, known or unknown, unless any of these be expressly excluded. In the second place, the parties must be physically capable of the marriage union. The man must have reached puberty, and the woman must be apta viro. A promise to marry might be made earher, and have some binding force, as in the case of legal espousals per verba de futuro, but this promise would not normally constitute marriage, even if the parties afterwards came together. But further, since some men remain always incapable of the act of marriage, or are incapacitated by artificial means, one who is so im- potent is incapable of contracting marriage ; if the im- potence be discovered after the verbal contract has been made, this must be treated as null and void, and there is no marriage. In the third place, the consent of the parties must be free, dehberate, and informed, otherwise there is no true con- tract ; anything, therefore, which destroys these conditions nulhfies a contract otherwise vaUd. An enforced consent makes no marriage, even though the union be consummated ; if either party was terrorized, by whatever means, into the surrender of the body and the verbal expression of consent, the contract is void. An insane person, again, or one under the influence of drugs, not having control of the will, is in- capable of contracting a valid marriage. So too if a definite mistake be made as to the persons contracting, as if a man verbally contract with one woman supposing her to be another woman, this contract also is void. These limita- CONDITIONS OF A VALID CONTRACT 29 tions are not imposed by positive human law ; they are inherent in the nature of things, rendering an apparent consent unreal. Fourthly, the parties must both be free of any other tie of wedlock. This follows from the unity and the indissolu- bility of marriage ; a person already married cannot con- tract a new marriage. It is allowed in practice that when one party of a marriage has disappeared and has not been heard of for some years, the other party may be held free to marry, but this on the ground that the death of the missing one is presumed. It is sometimes held that a pre- contract of marriage, solemnly made, is a bar to any other marriage unless the parties to it be as solemnly released. This kind of contract is recognized in many systems of law, and has an important place, under the name of Sponsalia, in Canon Law and Moral Theology. The question for us here is whether it should be referred to Natural Law. In a sense. Natural Law must certainly take cognizance of it, as of aU obligations founded on contract. It is a contract by which the parties, in some cases through their natural or legal guardians, pledge themselves to marry at some future time. It is not denied that the contract is rescindible, either by mutual consent, or even by one party where con- ditions make its fulfilment improper ; but about its effect while subsisting there is much dispute. Each party is under a natural obligation to marry when called upon to do so, and is therefore precluded from contracting any other marriage ; but is there set up a natural status which will render such marriage void, if attempted ? The precon- tract is the preliminary eyyvrjai^ of Athenian law, which was considered an indispensable feature of the marriage contract. In Roman law the sponsalia were not essential, and it was possible to proceed direct to marriage ; but, both in this system and in the Christian practice derived 30 OF MARRIAGE IN THE ORDER OF NATURE from it, these espousals de futuro followed by the carnal union of the parties have been held to constitute true mar- riage. This effect, however, may be referred to a contract of present marriage presumed as implicit in the act of union, and thus it is not necessary to give the espousals the char- acter even of inchoate marriage. On the whole, it seems best to conclude that in the order of nature espousals de futuro set up nothing but an obhgation, the breach of which is an offence against justice, but which does not render the person so bound incapable of marriage with a third party. The marriage is to be condemned, but is not to be set aside as void. Lastly, persons nearly akin to each other are incapable of intermarrying. It is not, however, certain what near- ness of kindred constitutes a natural bar to marriage. The practice of mankind has varied from a rule of strict exogamy, requiring the parties to be of different tribes, to the point of allowing marriage between a brother and a sister of the full blood. At the same time the observance of whatever rule is adopted has usually been enforced under sanctions which imply a remarkable degree of natural repulsion from the forbidden unions. The definite horror of incest, which seems indestructible even in the most decayed civiUzation, has its roots deep in human nature. Attempts have been made to find a physiological basis for prohibitions of this kind, but without success ; a general belief that injurious effects are found in the offspring of the forbidden unions is not universally verified in experience, and it is probably the result rather of a religious dread than of actual obser- vation. It seems to be a certain conclusion of biology that the human race is descended from a single ancestor differen- tiated by one of the greater variations that appear spontan- eously in breeding. If this be so, the unity of the race could be preserved in the first instance only by the closest CONDITIONS OF A VALID CONTRACT 31 interbreeding, and it is impossible to refer the prohibitions in question to these beginnings. But the natural consti- tution of society, as we have had occasion to observe, is not to be found in the first stages of human Ufe. It is found rather in that to which human life tends, in accordance with the thought of the Creator. At what stage in the history of the race the restriction of in-breeding began, it is impossible even approximately to ascertain. The savage tribes which practise exogamy, it must be repeated, are not primitive. They have an unrecorded past in which vast changes have probably taken place. But the restric- tion, in one form or another, has become a constant factor of social order. Marriage with a sister of the half-blood, as recorded of Abraham, or of the full blood as practised in some communities more civilized than those of the Semitic nomads, has been held on high authority to be forbidden by natural law ^ ; but it is difficult to maintain this opinion in view of the fact that such marriage would be necessary at the beginnings of the human race ; stiU less will a more remote kinship be a bar ; the one kind of union that seems to be certainly excluded is that between a man and a woman related in the direct ascending and descending line. If this be so, and the question is one of great difficulty, all other prohibitions must be referred to human law, being imposed for the better safeguarding of the family. What has been said above as to the relation of affinity draws with it the inevitable consequence that the natural restriction of marriage applies no less to persons allied in this way than to those related in blood. This obvious con- clusion is fortified by the remark of St. Paul that union be- tween a man and his father's wife was regarded, apart from * The authorities are collected with characteristic erudition in the Rev. Father Puller's Marriage with a Deceased Wife's Sister forbidden by the Laws of God and of the Church. 32 OF MARRIAGE IN THE ORDER OF NATURE any special sanction of Christianity, as a thing not to be heard of.^ That is to say, it was an offence against natural law and against natural rehgion. These five conditions, then, are required for a valid con- tract of marriage. The parties must intend true marriage ; they must be physically capable ; they must be acting freely, under no constraint and under no mistake ; they must be subject to no previous bond of marriage ; and they must not be too near akin. The contract thus made is ful&Ued in the actual union of the parties, which is called consummation of marriage. A man and a woman who have contracted, but not consum- mated marriage, are in an abnormal position as to which the natural law affords no guidance, but for which human law must provide in case of need. Those who have con- tracted and consummated marriage enter upon a new state of life, determined by nature. The state of marriage is not a contractual state ; the bond is not a contractual bond. The contract is only the instrument by which the state of marriage is brought about. It is not a continuing contract, subject to revision, or capable of being rescinded with due regard for law by agreement of the parties interested. It is completed by consummation. Thenceforward the rela- tions of the parties are determined, not by contract, but by law, divine and human ; they are bound to the fulfilment of their mutual duties, not by their own consent, but by a natural obligation. The extent of the obligation is determined by the purpose of marriage. It is an obligation to live together for life in a perfect union of equal partnership for the procreation and nurture of children, for mutual support and comfort in good and evil estate, and for the right ordering of the family. i I Cor. V. I. The reading ovo/ict^cTai seems to be a valid gloss, looking back to d/covcrai. THE SANCTION OF CONSCIENCE 33 Nature seems to assign a certain headship to the man, which St. Paul with great boldness likens to the headship of Christ in the Church, but this imphes no dominion. It is not by natural law, but by a gross corruption of human law, that a wife is regarded as the chattel of her husband. St. Paul qualifies the submission and reverence of the wife by the impUcation of perfect equality involved in bidding men love their wives as their own bodies. In regard to the essen- tial act of the marital relation, he insists that the wife has the same right over her husband's body that the husband has over the wife. In the First Epistle of St. Peter, the comparative weakness of the woman, though naturally and inevitably pointing to some normal measure of subjection, is expressly made the ground for honourable regard.^ The divine law of nature assumes obedience. It is de- signed for men who Uve according to the wiU of the Creator. Sin, and the perversity of nature consequent on sin, disturb the subhme order thus demanded, and there is in the divine law no invocation of force to compel submission. Its sanction is moral ; its appeal is to conscience. There are terrors, but remote ; there are consequences of ill-doing, but they are obscure in movement. Law is not necessity. Some confusion of thought is induced by the common appli- cation of the word to those sequences of cause and effect in which no free action of wiU is discernible. It may be that we are mistaken in thinking even of wind and storm as fulftUing God's word with hfeless precision ; there may be agents working with the thundercloud as men work with the harnessed forces of nature. Where men are con- cerned there is certainly a measure of freedom, known in act though undetermined in extent. In marriage, there- fore, as in aU moral action, hirnian practice does but approximate to the perfection of the divine law. 1 Eph. V. 23-8 ; I Cor. vij, 4 ; i Pet. iii. 1-7. M.CS. D 34 OF MARRIAGE IN THE ORDER OF NATURE That law may be known by interrogation of nature. But the knowledge so achieved is imperfect, being at the best sought by long labour and preserved in the accumula- tion of human tradition. It is also precarious, being partly obscured and partly distorted by passion and self-wiU. It is increased, and it is also cleared of false accretions, by the plain teaching of the Gospel, in which God Himself makes known some of the more secret passages of His WiU. Chris- tians therefore have in the tradition of the Church a fuller exposition of the divine law of marriage, as it is in the order of nature, than can be found elsewhere. Christian marriage is not a particular kind of marriage, though there is super- added to the marriage of Christians a certain quahty, next to be considered, by which it becomes sacramental. There is not a less perfect marriage common to all men, and a more perfect marriage proper to Christians. Marriage is true marriage ahke in the Christian, in the pagan, and in the creedless theist or atheist who has renounced Christianity. In so far as marriage is better ordered in Christendom, it is only as Christians know and observe more fully than other men the natural law of marriage. In so far as modern civiUzed man has any advantage, it is because he has acquired, from theology and physiology ahke, more insight into the working of nature. To break away from the Chris- tian tradition is not to return to nature ; it is to fall back upon a less-developed knowledge of nature. The duty of a Christian man is plain. He is to bring his conscience to bear upon what he knows of the divine law, and to regulate his own conduct thereby. He is to contract marriage only as it is allowed by the law of God, and to Uve in this holy estate as becomes one who has learnt its deeper meaning. He wiU bear in mind the purpose of the union, and will do nothing to frustrate that purpose by interference with the course of nature ; he will beget chil- THE DUTY OF A CHRISTIAN MAN 35 dren and cheerfully undertake the burden of their nurture. He will make a temperate use of marriage, and wiU be sparing in his demands upon his partner. He will treat that partner with equal honour both in public and in private, and share as completely as possible all good and adverse fortune. The duties of husband and wife are correlative, and each has to contribute in equal measure to the achievement of a perfect marriage. But the instructed Christian has to do more than present an example of the Ufe that is according to nature in a single family. Human life is necessarily organized on a large scale. The Christian has to maintain the cause of marriage in the nation as well as in his own household. His conscience is not engaged in what other men do, but he is bound both to support others in doing right and in upholding the general good of society. Know- ing the importance of marriage, he will do his utmost to prevent its degradation. But he will remember that all men have not the same knowledge, that many defects in the ordering of this holy estate are to be tolerated because of their ignorance or the hardness of their hearts. He will not be too ready, either by legislation or by pressure of social opinion, to force on other men observances to which their own conscience does not call them. He will be much sterner in his judgment of a fellow Christian than in his intercourse with those without the Church. He wiU bring all things to the standard of the law of God, refusing to abate any demand, or to recognize any lower ideal ; but he will allow that personal deflections from the right way do not always involve personal guilt. In a word he wiU uphold the truth of nature, but in social intercourse he wiU tolerate much that is false, and will frankly recognize as Uving together in good faith and without blame many whom he knows to be united by no true marriage. CHAPTER II Of Marriage in the Order of Grace IN the ritual of the Church, marriage is said to be ordained for a remedy against sin. This seems to con- flict with the statement that it was instituted in the time of man's innocenQy, except on the general understanding that by the economy of grace things existing in the order of nature are appropriated to an use beyond nature. If sin be a perversion of man's nature so grave and harmful that he cannot by the exercise of his natural powers recover his normal condition of spiritual health, it follows that he can be restored only by some power external to himself. The practical purpose of the Christian revelation is to show a power so working, which we call the Grace of God ; and since this exceeds the measure of man's natural power, we call its operation supernatural. But the work is usually done by means which He within the order of nature. The Saviour of the world took human nature in which to do the work of redemption, and took it by means in part, at least, natural. " Si enim consideremus," says St. Thomas Aquinas, " id quod est ex parte materiae conceptus, quam mater ministravit, totum est naturale."^ In sequence upon this, institutions and practices which formed part of the common equipment of human life were taken into the redemptive system of Christianity and established as " mysteries of God." All forms of rehgion, all modes of 1 Summ. Theol., 3, 33, 4. 3< A GREAT MYSTERY 37 social action, were more or less tainted with the effects of sin ; but some of them were sanctified to be modes of the Christian Ufe and forms of the religion of the Gospel. Among these was marriage. Constituted in the order of nature, and remaining as so constituted, it received in addition a supernatural endowment. " This mystery is great," says St. Paul.^ According to his constant use of the word, he is thinking of a dispensation of God, eternal in the divine purpose, but coming to hght only in the preach- ing of the Gospel. The ordinance of nature, " the two shall become one flesh," is made an ordinance of grace ; "I speak," he adds, " in regard of Christ and of the Church." So sacred has the natural union become, that a husband's love for his wife may be compared with the love of Christ for His redeemed ; men ought to love their wives as their own bodies, and as Christ loves His mystical Body, the Church. The figure had already been used by the prophets to illustrate the relation of God to His chosen people ^ ; St. Paul employed the comparison rather to enhance the solemnity and sanctity of the estate of marriage. The sense in which he used the word fivarijpiop must be ascertained. It is not pecuUar to him, though the word is barely found in other writers of the canonical books of the New Testament. It was evidently part of the common Christian language, and so continued. But, like almost aU specifically Christian words, it came from an exterior source. It had a familiar religious use in all lands where Greek was spoken. Its origin was religious, though it was passing into a sense detached from sacred associations. Throughout the Greek world, and especially the part of it in touch with Asia, Mysteries were rehgious observances connected with the idea of redemption or salvation by means ^ Eph. V. 32. * Jer. iii. 14 ; Hos. ii. 19. 38 OF MARRIAGE IN THE ORDER OF GRACE of a doctrine divinely revealed 'and practices divinely ordained. Their resemblance to the Christian system is obvious, and the first preachers of the Gospel did not shrink from the comparison. They proclaimed the kinship by speaking of the Christian Mysteries. But there is a dif- ference. Christianity was more than a specific rehgious action ; it demanded the surrender of the whole life, and all the details of Mfe could be taken up into its mysteries. It is possible that St. Paul himself was responsible for the general currency of the word among Christians. It seems to have been disliked by the Jews. Philo insisted that there were no mysteries in the Mosaic religion, which em- ployed only the most open and public methods of divine worship. He evidently had in view the affected secrecy of the mystic rites, and their restriction to chosen initiates.^ The word found only a restricted use in the Septuagint, mostly in the vulgar sense of a mere secret. In the Book of Wisdom, the Mysteries of God are but the unsearchable workings of Providence. It does not seem to be used of religious ordinances except in another passage of the same book, where it stands, not without a note of contempt, for the vain imaginations of the Gentile world.^ It is therefore surprising to find the word current in the Apostolic writings ; but however much its complete adoption into Christian language may be due to St. Paul, his free use of it without apology or explanation shows that it was already sufficiently familiar. Nor is the word used loosely, without reference to its origin. It had already passed, as the Septuagint bears wit- ness,* into the vulgar sense of a mere secret, but St. Paul 1 Philo, Ilepl 6v6vT(ov, p. 856, ed. 1691. ^ Wisd. ii. 22 ; xiv. 15, 23. Cp. Dan. ii. 18 ; Judith ii. 2 ; Tobit xii. 7. * And earher ; cp.] Menander, Fragm., 168. [tvcTTripiov trov firj NO SPECIAL SENSE OF SECRECY 39 does not seem to use it anywhere in this way.^ There are not many indications even of a secondary sense of secrecy. The Christian Mysteries had affinities with the cults known by the same name in other religions, but they were not guarded with the same affectation of secrecy, nor were sacred truths jealously doled out to recipients in various stages of initiation. There are, indeed, some words of St. Paul which seem to imply such a practice : " We speak wisdom among the perfect. . . . We speak God's wisdom in a mystery." * But it is probable that, borrowing the language of secret initiation, he is here thinking only of the gradual training in the Christian life which new converts required ; he reproaches the Corinthian Christians for their slow pro- gress. In the course of time, indeed, the habit of secrecy invaded the Christian Church ; the disciplina arcani may have been suggested as much by the associations of the Greek Mysteries as by the necessity of hiding from persecution. But in the first age the Christian Mysteries seem to have lacked the element of secrecy. There is evidence of this in the use of the Latin word sacramentum, which suggests nothing of the kind, to represent the Greek fiva-r'^piov. The earliest translators of the Scriptures of the New Testament employed it exclusively ; the word mysterium, though well estabhshed in the language, and afterwards introduced by St. Jerome into his revised text of the Bible, was for some reason avoided ; no word implying secrecy was sought ; the Christian mysteries became, for the whole Latin Church and its derivatives, sacramenta. This rendering helps to fix the meaning of the original. The older Latin literature, indeed, knows no use of the word 1 There is more in Eph. i. 9, though the sense of secrecy is there prominent. * I Cor. ii. 6-7. Account should, however, be taken of our Lord's comment on His parabolic teaching ; Matt. xiii. 14. 40 OF MARRIAGE IN THE ORDER OF GRACE which accounts for its Christian use, and it was probably drawn from the popular language. Tertullian and St. Cyprian employ it in a very broad sense for the Christian religion in general, as well as in a narrower sense for specific rehgious observances. St. Augustine seems in more than one place to make it exactly equivalent to signum sacrum, and this interpretation, treated as a definition in the form signum rei sacrae had considerable effect on the development of Latin theology. It is probable that the sense of signum was present, though less prominent, in the original Greek word as used by Christians ; a mystery was something done or said with a spiritual significance. More broadly, it was any rehgious observance, whether of doctrine or of practice, closely connected with the evangelic scheme of salvation. When marriage thus became a sacrament, its original character was not changed ; a new quality was superadded. It became, says St. Augustine, " non solum vinculum, verum etiam sacramentum," with the result that things formerly tolerable in its treatment were now intolerable ; for instance, the lending of a wife to another man, which was reckoned praiseworthy in Cato.^ This can only mean that the sanc- tity of the relation between husband and wife was increased. The selection of such an extreme case for illustration shows how the degradation of marriage in Roman practice affected St. Augustine's estimate of the natural union ; he seems to have thought that, but for the sacramental character newly impressed upon it, such use of a husband's rights would not have been blameworthy. By the same habit of thought, perhaps, he was led to regard; the sacramental character of marriage as the cause of its indissolubility. In saying that marriage would not be indissoluble, " nisi alicujus rei majoris quoddam sacramentum adhiberetur," * he may possibly ^ Dt Fide et Operibus, 7. * De Bono Coniugali, 7. THE MEANING OF A SACRAMENT 41 have meant that from the first the value of the institution stood in the anticipation of its evangehc significance ; but this, though in agreement with much of his thought, con- flicts with some of his express statements. He was not, how- ever, as we have seen, entirely consistent with himself on this subject. The " greater thing " present to the mind of St. Augustine was unquestionably the union of Christ and the Church, with which St. Paul compares the union of husband and wife ; as the English ritual says, God has " consecrated the state of matrimony to such an excellent mystery, that in it is signi- fied and represented the spiritual marriage and unity betwixt Christ and His Church." But this is not the primary sense in which marriage is sacramental. A sacrament is symbolic ; but it is not a sacrament because it is sjmabolic ; it is sym- bolic because it is a sacrament. The mysteries of the king- dom of heaven have transcendent counterparts, but in their primary sense they are religious doctrines and practices connected with the work of men's salvation under the exist- ing conditions of human life. The sacrament of marriage is an ordinance of practical Christianity. By practical Christianity men are saved from sin. The ordinances of practical Christianity are means of salvation. What men sought by means of the Mysteries of Eleusis they obtain by means of the Christian Mysteries. In the broad- est sense of the term, sacraments are means of grace. In Hooker's phrase, they are " powerful instruments of God to eternal life " ; not physical instruments, as he well distin- guishes, but " moral instruments of salvation, duties of service and worship, which unless we perform as the Author of grace requireth, they are unprofitable." ' His general definition of the term can hardly be improved : " A sacrament is generally in true religion every admirable » Eecl. Pol. V. 50, 57. 42 OF MARRIAGE IN THE ORDER OF GRACE thing which divine authority hath taught God's Church either to believe or observe, as comprehending somewhat not otherwise understood than by faith." ^ For many ages no attempt was made to determine more particularly what beliefs or practices should be recognized as Christian sacra- ments ; seven were specifically enumerated by Peter Lom- bard in the twelfth century, and the great vogue of his Liber Sententiarum in the schools of the Middle Ages made this number a theological commonplace. The narrowing of the term was due to the dominance of the idea of signum. A sign was reasonably interpreted as something visible, and those sacred ordinances in which there could be recognized a visible sign of sanctifying grace were distinguished as Christian sacraments in the more proper sense. This new use of the term was arbitrary, but the distinction which it enforced was real. So accurately and convincingly was it treated that even the Greeks, never too ready to follow Latin theologians, adopted the scheme ; the word /hho-tj?/? to v could not be limited in use, as was soon the case with the Latin sacramentum, but the Seven Holy Mysteries were set in a category apart. Thus the determination of seven sacra- ments, peculiarly so called, was accepted by the whole Christian Church. Marriage is one of the seven. But did St. Paul call marriage a mystery in this sense ? The word has with him a latitude which would permit a more general interpretation : did he mean that in marriage is conveyed a gift of grace, saving or sanctifying ? His gnomic saying must be interpreted chiefly by what he says elsewhere of marriage and its effect in the Christian life, which we shall presently examine ; but the saying itself will yield some information. The words to f^va-T-^piov rovro /liya iariv are significant. They may be compared with the similar phrase, /ierya iari rb rij? eva-e^ela<; (ivaT-rfpiov.^ 1 Ecd. Pol., App. I, 14. * I Tim. iii. 16. MARRIAGE STRICTLY SACRAMENTAL 43 In each case the wording recalls the familiar distinction of the Hellenic Mysteries into fieydXa and f^Upa, and it is difficult to believe that St. Paul had not this in mind. It will then follow that marriage, no less than the Incarnation, is to rank among the Greater Mysteries of the Christian faith. Moreover, it is clear that in so placing it he was on familiar ground.' The ritual of marriage among the Greeks was already assimilated to that of the Mysteries. It is found, for example, that the mystic formula, e^vyov kukov ebpov afiELvov, quoted by Demosthenes in the course of his bitter gibes at the former occupation of Aeschines,^ was used also in the ceremonies of marriage ; both rites, it has been said, " might be viewed as transitions from an old hfe to a new one presumably better, processes in which the initiate renounces or dies to the old and is reborn in the new." The idea of marriage as an escape from evil, we shall see, was definitely present to St. Paul's mind. It cannot be doubted that his words about the Great Mystery — I quote the same writer — " were in accordance both in spirit and in verbal form with earlier Hellenic religious custom rather than with Hebraic." * There is therefore no forcing of his language when we take him to speak of marriage as a mystery, not merely in some wide and general sense, but in the special sense of a sacra- ment which is a vehicle of divine grace. Regarded in this light, as a visible sign of grace, marriage is the natural institution, remaining in its own nature, but raised to a supernatural potency. The institution consists, as we have seen, in a contract and its fulfilment. The mutual surrender of man and woman, and the mutual accept- ance of that surrender, sufficiently constitute the sacrament. But the distinction of matter and form, introduced by theolo- gians of the thirteenth century from the Peripatetic philo- i De Corona, 313. ^ Famell, The Higher Aspects of Greek Religion, pp. 33-4- 44 OF MARRIAGE IN THE ORDER OF GRACE sophy, has here raised some unnecessary questions. The solution usually adopted finds the matter of the sacrament, or its indeterminate element, in the mutual surrender of the bodies of the parties contracting, whUe the determining form is sought in the express words by which the contract is declared. The insistence of Canonists on verba de praesenti fits in with this distinction. It is a perfectly sound refine- ment, even if it be unnecessary ; for the surrender ot the body is common aHke to marriage and. to illicit intercourse, and the intention which makes it marriage cannot be ade- quately expressed without words or their equivalent. An alternative opinion, however, finds the matter of the sacra- ment in the surrender of the body on either side and the form in the acceptance.^ A sacrament implies a rite. What is actually essential for marriage, it will be seen from what has been said, is a very simple formula of mutual consent. But the Church has surrounded this with sacred observances, partly intended to secure due pubhcity, partly designed to enhance the dignity and solemnity of the act. The origin of this ritual cannot be traced, but a certain negative conclusion is possible. If a ceremonial of marriage had been adopted for general observ- ance in the first age, it cannot be doubted that some defin- itely Jewish features would have been woven into it, as into other primitive rituals, and these would have survived or left traces in later growths. But there is nothing of the kind. On the 'contrary, the ritual of marriage that was finally adopted by the Church seems to be of purely Roman origin. The conclusion is inevitable, that existing cere- monies of marriage were as far as possible accepted and con- ' Billuart, Summa Summae, vol. vi, p. 345. He argues ingeni- ously from the nature of a contract in general, that an ofier of anything is formless and inderteminate, until it is clenched by accaptance. THE RITE 45 tiiiued among Christians ; what was inconsistent with Chris- tian behef and practice was retrenched, a Christian feature was in some cases substituted for something intolerable, what seemed innocent was retained. The immense exten- sion of Roman citizenship in the third century made Roman observances general, and a fairly uniform mode of Christian marriage was the result. The earliest evidence on the subject is found in the writings of TertuUian. He extols the happiness of a marriage arranged by the Church, confirmed by Sacrifice, sealed by Blessing, proclaimed by Angels, ratified by the Father. Elsewhere he mentions the nuptial veil, and the joining of hands.* St. Gregory Nazianzen speaks of the joining of right hands by a bishop ; St. Ambrose of the " sacerdotal veil and benediction " ; St. John Chrysostom of the cere- monial crowning, still retained in the East, and of " lacing the union with prayers of blessing " ; the Statuta Antiqua Ecclesiae of the presentation of the parties by parents or paranymphi, to be blessed by a priest.^ These references are vague, but they are illustrated by forms of benediction contained in the most ancient extant Sacramentaries. The Leonine, the Gelasian, and the Gre- gorian have a Nuptial Mass, with the usual variants, and a long eucharistic prayer of the ordinary type, to be said after Pater Noster before the Fraction. It is noteworthy that the offering is made for the bride, and for her alone. These are not found in books of the GaUican rite, but Duchesne is of opinion that the short benediction Deus Abraham, said before * Ad uxorem. ii. g. " Unde suf&ciamus ad enarrandam felici- tatem matrimonii quod ecclesia conciliat, et confirmat oblatio, et obsignat benedictio, angeli renuntiant. Pater rato habet ? " Cp. De Veland. Virgin, ii. 2 Greg. Naz. Ep. 193 ; Ambrose, Ep. 19, § 7 ; Chrysos. Horn. 9 in I Tim. ; Horn. 48 in Genes, ad fin. But he rather advocates this than treats it as usual or necessary. 46 OF MARRIAGE IN THE ORDER OF GRACE Ite missa est in the Roman rite, is derived from a Gallican source. The Sacramentary of Bobbio has a benedictio thalamic- It is not until the ninth century that we find a detailed account of nuptial ceremonies. In his Res-ponsa ad Bul- garos Nicholas I sets out the mode of celebrating marriage, " quem sancta ecclesia Romana suscepit antiquitus." * There is good reason for believing that he was justified in asserting this, for in spite of some references to the Old ^ Duchesne, Origines du Culte ChrStien, ch. xiv. • " Post sponsalia, quae futurarum sunt nuptiarum promissa foedera, quaeque consensu eorum qui haec contrahunt, et eorum in quorum potestate sunt, celebrantur, et postquam arrhis sponsam sibi sponsus per digitum fidei a se annulo insignitum desponderit, dotemque utrique placitam sponsus ei cum scripto pactum hoc continente coram invitatis ab utraque parte tradiderit, aut mox aut apto tempore, ne videhcet ante tempus lege definitum tale quid fieri praesumatur, ambo ad nuptialia foedera perducuntur. Et primum quidem in ecclesia Domini cum oblationibus, quas ofierre debent Deo per sacerdotis manum, statuuntur, sicque demum benedictionem et velamen caeleste suscipiunt, ad exemplum vide- hcet quo Dominus primos homines in paradiso collocans benedixit eis dicens, Crescite et multiplicamini, etc. Siquidem et Tobias, ante- quam coniugem convenisset oratione cum ea Dominum orasse describitur. Verum tamen velamen illud non suscipit qui ad secundas nuptias migrat. Post haec autem de ecclesia egressi coronas in capitibus gestant, quae semper in ecclesia ipsa sunt sohtae reservari. Et ita festis nuptiahbus celebratis, ad ducendam individuam vitam Domino disponente de cetero diriguntur. Haec sunt iura nuptiarum ; haec sunt, praeter aha quae nunc ad memoriam non occurrunt, pacta coniugiorum sollemnia. Peccatum autem esse, si haec cuncta in nuptiali foedere non interveniant, non dicimus, quemadmodum Graecos vos astruere dicitis, prae- sertim cum tanto soleat arctare quosdam rerum inopia ut ad haec praeparanda nullum his sufiragetur auxihum ; ac propter hoc sufficiat secundum leges solus eorum consensus de quorum coniunc- tionibus agitur. Qui consensus si solus in nuptiis forte defuerit, cetera omnia etiam cum ipso coitu celebrata frustrantur, Joanne Chrysostomo magno doctore testante, qui ait, Matrimonium non facit coitus, sed voluntas," THE RITE 47 Testament, the order of proceeding is exactly that of the most solemn kind of marriage known to the ancient Roman law, or Confarreatio. Abandoned by almost all others before the end of the second century, this solemnity seems to have been continued, with the necessary modifications, in the Christian Church. We observe a twofold ceremony. First, the espousals {sponsalia), or solemn promise of future marriage, and secondly the actual nuptials. With the espousals are connected the arrhae, or earnest of the com- munity of goods that marriage would bring, consisting of a ring placed by the bridegroom on the bride's " faith finger," and the delivery of the act of dowry in writing. There is nothing to show that this was done elsewhere than at home, or that the assistance of a priest was required. The nuptial ceremony, on the contrary, is performed in church, and not without a priest ; it has three features, (i) the oblation or eucharistic sacrifice, in which the espoused take part, (ii) the benediction pronounced while the nuptial veil is spread over the bride, and (iii) the crowning of the married pair with crowns usually kept for that purpose in the church. This procedure follows exactly that of the ancient Con- farreatio, in which the espoused assisted at a sacrifice and partook of the panis farreus, prepared and consecrated for the purpose. But this solemnity was never held necessary for a valid marriage in Roman law, and the Pope insists that neither shall its Christian counterpart be reckoned essential. He protests against the alleged teaching of the Greek Churches that the omission of it was sinful, definitely excuses those for whom it was too costly, and affirms the validity of a marriage contracted by mutual consent alone. No ceremony, he adds, can make a marriage good, when that consent is lacking. This became the constant doctrine of the Western Church. But it will be observed that no mention is made here of a 48 OF MARRIAGE IN THE ORDER OF GRACE renewal of consent at the time of the nuptials. The consent of the espousals was de futuro, and this, we have seen, is imperfectly binding, and does not constitute true marriage. Does the conditional contract of espousal become absolute when the nuptial benediction is received, without any further expression of consent ? The question was much debated during the next two centuries, and was complicated with that of a theory concerning the sacrament which first appears in the writings of the contemporary of Nicholas, Hincmar of Reims. According to him, marriage became complete only on consummation ; the contract was a preliminary, setting up an obligation, but one that could be rescinded ,; the sacrament of indissoluble marriage came into being only with consummation. Gratian accepted this, with some safeguards, and the school of Bologna followed him. Peter Damian, Hugh of St. Victor, and Peter Lombard, main- tained the contrary proposition that consensus facit matri- monium, and the influence of the schools of theology at Paris caused this to prevail. As a by-product of this controversy emerged the contention that the true contract of marriage must be per verba de fraesenti, and the contract of espousal was thenceforward distinguished as being made -per verba de futuro. As a further consequence, it became general to simplify matters by doing away with the interval of time between espousals and nuptials, and the contract of espousal was effected at the church-door, immediately before the benediction. The requirement of a contract de praesenti was met in many Churches by an addition to the older form of espousal. According to the Sarum Manual, which is closely followed by the modern English rite, the priest first put the question, " WUt thou have this woman to thy wife ? " with the addition of words setting out the duties of the holy estate. The question was repeated, with variations, to the woman, and both parties replied, " I will." This was the ESSENTIALS AND CONCOMITANTS 49 contract de futuro. Then followed words de praesenti : " I, N., take thee, N., to my wedded wife," with similar ampli- fication. At Rome, however, these additions were not received, and the ritual to this day has only the demand put to the parties, with the answer, " Volo." In view of the fact that the nuptial benediction is to follow at once, it' is possible to read into this, says Duchesne, the meaning of a contract de praesenti ; ^ but it can hardly be doubted that we see here a survival from a time when the promise of espousal was held to be sufficiently ratified, even after a considerable delay, by the nuptial ceremony following. It follows from all this that the one essential rite for the sacrament of marriage is the consent of the parties, ex- pressed either by actual words de praesenti or by some formula of agreement on which the same quality is impressed by concomitant circumstances. The ceremonies by which this necessary act is accompanied are intended only to augment its solemnity, and may be varied or omitted- The veiling of the bride gave place at an early date to the practice of holding a pall over the united pair, of which vestiges only remain in some places ; the crowning, retained in the East, has long since disappeared in the West. The modem use of veils and garlands has no religious signifi- ^ Duchesne, loc. cit. " La c6r6monie nuptiale comprend actuelle- ment las rites des fiangailles aussi bien que ceux du mariage propre- ment dit. Elle commence par la declaration du consentement, qui, le mariage devant 6tre c616br6 sur I'lieure, a maintenant le caractdre d'un engagement de praesenti. Les parties, interrogees par le prfitre, expriment publiquement leur intention de s'unir en mar- iage." The author adds a note : " On a plac6 la, au moyen age, la formule Ego coniungo vos in matrimonium, etc., qui est, comme on le voit, une sorte d'interpolation de la c6r6monie primitive. Cette formule, dont le sens littoral est excessif, n'a pas peu contribu6 k fausser les id6es sui la nature du mariage religieux, et k faire croire que le lien matrimonial d6rive de I'autorit^ du prStre." See below p. 162. M.C.S. E 50 OF MARRIAGE IN THE ORDER OF GRACE cance, though it illustrates the persistence of customs no longer prescribed by authority. The place of the bene- diction has varied. The Roman rite has three benedictory prayers, one at the espousals, another after Pater nosier in the Mass, the third before Ite missa est. In the churches of the Galilean rite, the nuptial benediction seems to have been either entirely detached from the Mass, or given after G)mmunion. The English rite of 1549, closely following that of the Sarum Manual, had a benedictory prayer and a blessing at the espousals, with three more prayers and a second blessing said at the altar before the beginning of Mass, and this arrangement has been retained in subsequent revisions. Such being the external features of the rite, and its concomitants, it remains to determine the quality of the sacramental grace of marriage. It has been reduced to a mere permission of the carnal act. " Because of fornication," says St. Paul, " let each man have his own wife, and let each woman have her own husband." ^ Commending virginity as preferable, he allows marriage on account of human weakness. The EngUsh ritual puts this forward as a cause for which marriage was instituted. " It was ordained for a remedy against sin, and to avoid fornication ; that such persons as have not the gift of continency might marry, and keep themselves undefiled members of Christ's body." But if this be taken to mean merely that an act which would be sinful apart from marriage is permissible in marriage, there is no addition of sacramental virtue, since this is the effect of marriage in the order of nature. A further effect is therefore sought in the restraint of appetite ; the grace of marriage is that more temperate use of the body which should distinguish those who profit by its working. But this is to halt un- ^ I Cor. vii. 2. THE SACRAMENTAL GRACE 51 reasonably ; for, as St. Thomas says, the effect of grace is not only to restrain men from sin, but also, and simultane- ously, to impel them to good."^ He therefore adds that the grace of marriage aids men in the performance of all things which they undertake in the married state ; their under- taking is expressly approved by God, and therefore, as in the case of those promoted to holy orders, a special grace is given enabling them to fulfil their purpose according to the divine will. This may seem sufficient, but it is rather frigid as an account of sacramental grace. The comparison with Holy Order is defective, for the sacred ministry is itself a purely Christian institution, designed expressly and solely as a part of the work of redemption ; there is, therefore, obvious need of a supply of grace enabling the recipient to comport himself in all things as the representative of Christ. But marriage belongs to the natural order. According to analogy we should expect to find the abihty requisite for the fulfilment of its ends suppUed by God's providence in the same order. Marriage is ordained for the preservation of the species, as sleep for the preservation of the individual ; so far as their proper use is concerned, there seems to be no more need of a special sacramental grace in the one case than in the other. As a mystery of man's redemption, marriage should mean more than a strengthening and refining of domestic ties. What we seek may be found in St. Paul's comment : " It is better to marry than to be inflamed." * Marriage is not only an escape from the danger of actual fornication, 1 Sum. TheoL, Suppl., 42, 3. * I Cor. vii. 9 TTvpova-Oai. Compare 2 Cor. xi. 29, where the word is used of passionate grief or indignation ; Eph. vi. 16, where the " fiery darts of the evil one " are temptations caused by the stirring of the passions ; 2 Mace. iv. 38, x. 35, xiv. 45. 52 OF MARRIAGE IN THE ORDER OF GRACE though in such a society as that of Corinth it might be almost universally necessary on that account. Virginity or widowhood is the better way, but there are perils besetting those who choose it. To hve rightly in this state, a man must have a strong hold on his appetitesj and passions, the virtue of iyKpareia, or continence. This exists as a natural virtue, highly prized by ethical philosophers ; it exists also in the supernatural order, being one of the fruits of the Spirit.^ Those who have this power by nature, and those to whom God gives it by grace, are capable of the higher hfe to which St. Paul himself was conscious of being called, and to which he invited others : "I say to the unmarried and widows, it is good for them if they remain as I do." But he took it for granted that in either sex such were few. Most men and women, attempting this, would be inflamed by passion ; the natural impulse of procreation would be strong in them, producing serious moral disorder if it were not allowed its course. The truth of his observa- tion is well established by experience. But it is equally certain that mere indulgence of appetite will not check this disorder ; it may give rehef for the time, affording an outlet, but the appetite is strengthened by gratification. Even marriage, in the order of nature, is no remedy. It may be a palliative. The marriage bond imposes a check on the wandering of desire, and those who honestly abide by it gain the advantage of an external control ; but the rights of marriage may be abused by excess, and become the merest excuse for lustfulness. The morbid inflamma- tion of desire is the same thing, whether it be caused by denial of gratification or by indulgence. Grave pollution of soul is found at either extreme. This morbid inflammation is concupiscence. It is an impulse to perform the sexual act merely for the gratifica- ^ So St. Paul says in Gal. v. 23. THE SACRAMENTAL GRACE 53 tion of senise. As a fully developed vice of nature, it seems to be peculiarly human ; there are obscure traces of it in some of the lower animals, which point to its origin from a variation of the true natural instinct ; but as a rule in all other animals the sexual act is strictly controlled by the course of nature, and directed to the end of propagation. Concupiscence would therefore seem to be one of the conse- quences of human freedom. Man has risen above the environment of irresistible instinct, to Uve under a moral law which he can defy. He is capable of sin. St. Paul was expressing this, in accordance with his proper cast of thought, when he said that through law comes knowledge of sin.^ The motions of concupiscence are not properly sins, being independent of the will ; but they are the result of sin and the cause of sin, and therefore they may be called sinful lusts of the flesh. The sacrament of marriage is proposed as a remedy for these evils. It is better to marry than to be inflamed. Marriage in the order of nature wiU not have the effect desired ; the grace which it brings when raised to a super- natural potency must be recognized as the cause of deliver- ance. Marriage is a sacramental instrument of grace, and therefore a moral instrument ; its effect will depend upon a right use. The right use of it should extinguish the fire of concupiscence. St. Paul acknowledges that the married who abstain from the use of marriage will probably fall into the peril of incontinency. Speaking of it as he does, he can hardly have in view the risk of adultery ; he com- mends such abstinence by mutual consent, for a season of devotion, but advises a return to the use of marriage, " lest Satan tempt you through your incontinency " ; ^ he evi- dently refers to the secret and interior injuries to the soul '■ Rom. iii. 20; cp. vii. 7-13. * i Cor. vii. 5. 54 OF MARRIAGE IN THE ORDER OF GRACE resulting from the morbid inflammatioh which the use of marriage is to heal. There is thus given by marriage grace to extinguish the flames of concupiscence. Those whom God calls to the exceptional state of virginity receive the special grace of continence ; to the rest of mankind is proposed the ordinary grace of marriage, directed to the same end, the production of the supernatural virtue of chaste Uving. By reason of its sacramental efficacy, marriage is not less chaste than virginity. The sacrament of marriage is therefore the natural insti- tution raised to a supernatural potency for the conveyance of divine grace deUvering men from the fire of concupiscence and producing chastity of soul and body. Being in the order of redemption, it is peculiar to Christians ; it exists only in those whom baptism, the ianua sacramentorum, has brought into the state of salvation. It is thus seen that the baptism of the parties, and nothing else, makes the difference between the marriage in the order of mere nature, which is no sacrament, and the marriage in the order of redeemed nature, which is raised to sacramental efficacy. From this two consequences flow. In the first place, there can be no marriage between Christians which is not sacramental. Attempts have been made to distinguish between the contract and the sacrament, as though something separable were added to the natural contract, which might be withheld. Thus Billuart ^ argued that, as the washing of the body with water without a sacramental intention does not constitute baptism, so a matrimonial contract entered upon without such intention, though vahd as a contract, does not constitute the sacrament of marriage. But the analogy is defective. For the out- Wcird act, to which is annexed the sacramental effect of 1 In Suammm S. Thorn., iii, Dist. i, art. 5, § 5. See p. 195, infra. CONTRACT AND SACRA.MENT 55 baptism, is not mere ablution ; it is ablution performed as a sacred act with invocation of the Name of God. This act cannot be severed from its sacramental efficacy. The excellent principle was first laid down expressly by Bellar- mine and is now universally accepted, that it is not necessary to intend the specific effect of the sacrament, or to believe that it has such effect ; it is enough to intend to do what the Church does, in other Words, to perform a certain sacred action proper to Christians. It is even held, on the highest authority, that a negative intention, if it take the form only of intending not to produce the sacramental effect, does not nuUify the sacrament, since human perversity cannot vary the effect of God's ordinance of grace ; the only negative intention that can render void the act of baptism normally performed is an express intention not to do what the Church does, or not to baptize in the Christian sense. In the case of marriage, the act which is thus to be estimatetd is not a specifically Christian act newly instituted ; it is continued in Christianity from the order of nature ; those who intend to contract matrimony in the order of nature intend to do what the Church does, and they have no power to detach from that act the sacramental efficacy conferred upon it by God. It has even been suggested that baptized persons professing to contract matrimony with the express intention of excluding the sacramental effect would not in fact make a valid contract, since they would be attempting to do this under impossible conditions ; ^ but this seems unreasonable, since they would certainly be intending true marriage, though ignorant of one of its necessary imphca- tions. The conclusion stands firm, though without this perverse corollary, that in the marriage of Christians con- tract and sacrament are inseparable. They are distinguish- able in idea, but not in fact. 1 De Smet, De Sponsalibus et Matrimonio, p. 119- 56 OF MARRIAGE IN THE ORDER OF GRACE In the second place, when married persons become Christians, their marriage at once becomes sacramental. It need not be renewed, no fresh consent being required. Having made their contract of mutual surrender, and having fulfilled it, they cannot enter upon any new contract to the same effect. They are already naturally one, with that union to which God has given sacramental efficacy. The obvious objection that unbeHevers are in some sort made recipients of a sacrament, is admirably answered by St. Thomas Aquinas. Marriage, he says, was instituted by God, not exclusively as a sacrament, but also for the service of nature ; and therefore unbehevers, though they have no part in marriage as ministers of a sacrament, have a part in it in so far as it serves nature ; and even their marriage, though not actually a sacrament, because not contracted in the faith of the Church, has in it that which may become a sacrament.^ The order of nature is not to be too violently separated from the order of grace ; what these two persons have done in the one order has an inherent capacity for energizing in the other. But what is the case if one party be converted ? It is argued that here the sacrament does not come into being, since the bond is the substance of the sacrament, and this must be identical in the two parties who are conjoined ; therefore, while the one party remains unbaptized and incapable of the sacrament, the other party also remains without it. The reasoning is ingenious, but it conflicts with the teaching of St. Paul. Deahng with the case in * " Matrimonium non est tantum institutum in sacramentum, sed etiam in officium naturae ; at ideo quamvis infidelibus non competat matrimonium, secundum quod est sacramentum in dis- pensatione ministrorum consistens, competit tamen eis, inquantum est in officium naturae : et tamen etiam matrimonium tale est aliquo modo sacramentum habitualiter, quamvis non actualiter, eo quod actu non contrahunt in fide ecclesicie." S. T. Suppl. 59, 2, i. SACRAMENTAL VALUE OF MARRIAGE 57 question, he wrote : " The unbelieving husband is sanctified in the wife, and the unbelieving wife is sanctified in the brother." ^ But if the married man or woman who enters the covenant of grace by baptism receives not only a personal gift of sanctification, but a gift which abounds even to the unbeheving party, how can this be except by virtue of the sacramental bond uniting them ? It would be unreasonable that a Christian should be called upon to Hve in marriage without the sacramental grace of marriage, and according to the Apostle he not only has this himself, but some share in it is extended to the partner of his natural Hfe. St. Augustine evidently so understood St. Paul, for we have seen that he held this marriage indissoluble, holding also that indis- solubility depends on the sacramental character of marriage. By parity of reasoning the sacramental quahty is found also in those marriages, rarely permissible, which are contracted by a Christian with an unbeUever. By the impress of this sacramental character the sanctity of marriage can hardly be said to be enhanced, since it is already complete. Still less, if we may venture to part company with St. Augustine, is the obligation increased. But the institution is brought more obviously within the ambit of religion, and violation of the bond takes a particular colour of sacrilege. Moreover, neglect of marriage, or its discouragement, becomes more blameworthy. If in the natural order men ought to marry with a view to the fulfil- ment of the divine purpose by the propagation of mankind, much more is this desirable in the order of grace where additional benefits are dispensed to the individual soul. Artificial restraint on marriage, difiiculties created by social conventions, by unequal distribution of wealth and by unwillingness to face the responsibihties of parentage, are seen to endanger the welfare of the race ; professors of 1 I Cor. vii. 14. 58 OF MARRIAGE IN|THE ORDER OF GRACE eugenics complain that they tend to reserve the task of reproduction to the more reckless and incompetent ; from the Christian point of view they seem equally mischievous as depriving souls of the succours of grace. Barriers still more artificial, but more justifiable, have the same dangerous consequences. It may be desirable, it may even be neces- sary as noted above, to restrain from marriage those who would abuse|the holy estate, and whose progeny would be a social pest ; but such restriction calls for the greatest caution, lest individuals be unduly sacrificed to the general good ; persons denied the benefits of marriage need other help, and the most careful guardianship. It is the will of God that men should find in marriage the remedy against sin which they need the more as they are morally weak. The life of virginity is for those who are caUed to it by God, whether in religion or in obedience to obvious dictates of nature. For them other succours are supplied ; for the generality of men and women, marriage is the way of safety. Mistakes have worked disaster. The bold and generous attempt to demand a cehbate Mfe from all admitted to the sacred ministry, pressed by the Western Church from early days, has had some deplorable results ; its unwisdom has at times been admitted in the highest quarters. The Eastern Churches frankly abandoned the effort from the time of the Council in TruUo, even blaming the zeal of the Latins, and in the sixteenth century the Enghsh Church tardily and reluctantly adopted a yet larger freedom. The sacrament of marriage cannot safely be withheld from those who need it. The dishke of second marriages, once so strongly felt in the Church that even orthodox divines lent some countenance to the heretics who denied their lawfulness, has given way to this necessity. The ordinance of God is justified by experience, alike in the order of nature and in the order of grace. CHAPTER III Of Marriage in Human Law BEING an institution of human' society, marriage is inevitably an object of human law. There is pro- bably no form of government, however savage, which has not fixed customs and regulations dealing with this matter, as there is no form of civilization, however relaxed and cor- rupt, which does not retain something of the kind. Men may depart very far from obedience to natural law, but they cannot escape from the necessity of recognizing the natural union of man and woman, or of guarding it by positive rules. According to Hooker's distinction, these rules are either mixedly human or merely human laws. ^ They either enforce the natural law or direct men in ways which are naturally indifferent. This may be said of all laws which are in accord- ance with the wiU of God ; and since civil order is the natural state of man, the ministers of such order are the natural ministers of God, and the rules so made by legitimate authority are binding in only a less degree than the natural law itself. But since perversity and unwisdom abound, regulations made by fallible men are always liable to con- flict with natural law. There are some who would deny to such perverse ordinances the august name of law, but the common use of speech forbids this nice discrimination. It must, therefore, be admitted that human law, not im- 1 Eecl. Pol. i. X. lo. s» 6o OF MARRIAGE IN HUMAN LAW properly so called, may disagree with natural law. In this case there is a conflict of authority and a grave disturbance of obligation. There can be no doubt that the authority of natural law is the greater ; but a man who knows what God the Creator has prescribed, and is at the same time com- manded otherwise by the human laws to which he is ordin- arily subject, may be in a great strait ; for a loyal submis- sion to these laws in general is required by nature no less than obedience to the particular direction of the divine law that is in question. In all such cases of conflict it is neces- sary to walk warily. There is a presumption in favour of public law as against a man's private interpretation of the divine law, which may, however, be overthrown by a per- emptory judgment of the man's own conscience ; he can then say only that he must obey God rather than man. When the divine law is interpreted by adequate authority, as by the teaching of the Christian Church, there is no such presumption in favour of public human law contravening it, but rather a presumption to the contrary part. Reflection wiU show that human law may vary from the divine law of nature in five ways. First, it may command or forbid, as above noted, things which natural law leaves indifferent. There is variation, since' an act is forbidden which the law of nature passes by, or an act becomes obligatory which nature does not require ; but there is no contradiction, and no conflict of authority. Secondly, human law may generally, or for a particular occasion, refuse to enforce a demand of natural justice ; as when a certain kind of contract is not legally recognized, or when by a moratorium the recovery of debts is suspended. In this case also there is no contradiction, since the law does not forbid the voluntary fulfilment of the natural obligation. ' ! Thirdly, what natural law expressly allows, or even com- VARIATION FROM NATURAL LAW 6i mends, yet without obliging any man specifically to its performance, may be forbidden by human law ; as may happen when particular kinds of religious observance are prohibited. In this case there is opposition, possibly of grave importance, between the two authorities ; but the conscience of the individual subject is not strained, if the thing prohibited is not required of him in particular on any given occasion. In the fourth place, human authority exercises a certain economic or dispensatory power in matters regulated by natural law. Dispensation is of two kinds. In the first kind, which is absolute, the operation of law is directly suspended in a given case ; it can be granted only by the authority which imposed the law, since it is in effect a partial abrogation. Such dispensations are required by the imper- fection of a law, not universally applicable to all cases alike, which the legislator himself recognizes, and thereupon reme- dies the defect of his own work. In this sense the maxim holds good, Eiusdem est solvere cuius est ligare. Such imper- fection cannot be attributed to the natural law of God the Creator, which is therefore not open to dispensation of this kind. It is sometimes argued that God has by revelation allowed in men or societies imperfectly instructed things which are contrary to natural law, and some moral questions arising out of the records of the Old Testament are thus resolved ; but it is safer to say with St. Paul that the divine compassion " overlooks " the times of ignorance,^ and the attribute of mercy belongs to God rather as Judge than as Lawgiver. Alternatively, this economy of grace may be referred to the second kind of dispensation. In this second kind, which is contingent, note is taken of the principle that all laws must yield to necessity. Fault is not imputed to a man who acts contrary to law under 1 Acts xvii. 30. 6a OF MARRIAGE IN HUMAN LAW positive constraint ; and by the working of his own conscience he may in such case hold himself dispensed from the observ- ance of the law. But the conscience needs a guide, and duress varies so widely, from actual bonds or imprisonment to the slightest effects of unnerving fear, that an external authority is sought to determine whether in a given case the obligation of law is relaxed. The divine law of nature is open to dispensation of this kind, not because the will of God is countered by any natural necessity, but because the will of man is obstructed both by the natural limits of his power, and by the unnatural perversity of himself or of his fellow men. To stretch himself beyond the natural limits of his power without the express gift of a supernatural faculty, is to defy God's law ; to be restrained from in- tended obedience by the perversity of circumstances, by the failure of his own powers, or by the arbitrary interference of other men, is to stand in need of dispensation. Such dis- pensation is regulated in foro conscientiae by the responsa prudentum, the advice of those skilled in the science of souls, and by the authority for binding and loosing committed to the Christian priesthood ; in foro externo it may be regulated by human law, which thus exercises an economic or dispen- satory authority even in regard to the divine law. Homi- cide, for example, is contingently in certain circumstances justified by human law. Human law is not set against divine law, but, being itself authorized by the divine law of nature, it is employed within the purview of that superior law for this administrative function. If the function be rightly performed, there is here no conflict of authorities, but due subordination. In the last place, human law may directly contradict the law of nature, forbidding what God commands, or command- ing what God forbids. As an individual man can act against God's law, so can a community of men which has legislative VARIATION FROM NATURAL LAW 63 authority. Regulations so made may be unworthy of the name of Law, but neither use nor principle allows the refusal of that common denomination. As the unnatural act of a man is properly a human action, so the unnatural enactment of a human legislature is properly human law. The legisla- ture does not lose its natural character by an act of rebel- lion against natural law. It retains its proper authority. There is now, therefore, a direct conflict of authorities, and the duty of the individual man is plain : he must obey God rather than man. Applying what is here premised to the estate of marriage, we shall see that human law may either simply reinforce the law of nature, or may vary from it in one or more of these five ways. A third course is indeed theoretically possible. In Plato's imagined Republic marriage is ignored, if indeed the plan of promiscuous breeding under the con- trol of the State does not involve its prohibition. The sug- gestion recently mooted, that the law should recognize only sexual connexions contracted for a limited period or dtiring the pleasure of the parties, does without doubt involve the mere ignoring of marriage. A man and woman would not be prevented from contracting true marriage and fulfilhng its obligations, but this would be outside the cognizance of the law ; the connexion recognized by law would not be marriage, though it might usurp the name. It would be legal concubinage, a contractual relation, the conditions of which would be regulated and enforced by law. Marriage in the natural sense, as we have seen, is not a contractual relation ; it begins with a contract, but a completed con- tract, the completion of which sets up a natural relation. When a man and a woman have consented to live together in wedlock, and have come together in accordance with that consent, their contract terminates in the natural state of marriage|into which they have entered. Legal concu- 64 OF MARRIAGE IN HUMAN LAW binage, on the other hand, is a relation set up by a continuing contract, which has no natural term, which is defined by law and can be rescinded by law. To recognize such a relation in lieu of marriage is to ignore marriage. In practice, however, it may be doubted whether any political community has ever ignored marriage. It is certain that none of the communities known to history have done so. But neither does it appear that any community has ever been content to treat marriage purely as it exists in the order of nature, reinforcing without variation the require- ments of natural law. Such treatment would indeed be impossible without that complete knowledge of natural conditions, and that complete submission to the Will of God, which are not to be found in any human society. The utmost that can be expected is that some regulations of human law will conform to natural law, while others will vary from it in the way either of addition or of conflict. The best form of human law will be that which escapes conflict, and avoids harmful or vexatious additions. The enactment of laws regarding marriage is a part of the function of government belonging by nature to political societies, and therefore it is not necessary to enquire par- ticularly where that power resides. It is enough for our present purpose that it exists and is exercised, whether for making general laws binding a whole nation, or for imposing narrower rules like those affecting princely houses in Ger- many. But since marriage is raised to the supernatural order as a sacrament of the Christian Church, it is important to ask whether the legislative and juridical powers of a civil community are lessened by that circumstance. Things purely of the supernatural order do not seem to be in any way subject to civil control, either in right or in fact, for the gifts of grace are intangible ; concrete things and human actions annexed to the supernatural order, as concerns CONTROL OF MARRIAGE BY THE STATE 65 their natural constitution, remain subject to such control in fact, and to some extent in right ; to what extent they ought to be withdrawn from under the hand of the civil power is one of the vexed questions of Christian politics. Those mysteries of grace in which common things are set apart for sacred uses afford the largest room for contention. To take the crudest instance, and one in which the common sense of mankind prevents actual clashing, the water of Baptism and the wine of the Eucharist are things evidently under the control of civic law, which might conceivably put . serious hindrances in the way of their sacramental use. The sacrament of marriage is no less the exercise of natural human functions, which cannot be wholly withdrawn from the cognizance of the State. Indeed, since the first end of marriage is the continuance of the human species in a social order, there is nothing that touches more closely the duties and prerogatives of that organization, whatever it be, which is set up for the maintenance of social order in general. Even if marriage be not, through the development of patriarchal government, the very source of all civic constitutions, yet the Family and the State are naturally directed to the same end, and the one is but a larger growth in the same order. Those who would withdraw marriage, as a sacrament, from the control of civic law must therefore consider that in so doing they would dislocate the natural fabric of human society, which is not less founded in the providence of God than are the sacraments themselves. Is the sacrament, then, subject to this form of human control ? To solve the question, we must remember that marriage is raised to this dignity and sanctity by the addi- tion of supernatural grace, but remains none the less in its natural constitution. A regulation of human law which 'leaves that natural constitution unimpaired will not affect the sacrament ; where it is violated, there is no true natural M.C.S. F 66 OF MARRIAGE IN HUMAN LAW marriage, and consequently no sacrament. In neither case does the sacrament, as such, come under the control of the State. A tyrannical law may obstruct the administra- tion of this, or of any other sacrament ; an unwise law may confuse men's minds ; but these perils no more justify a denial of the natural authority of the civil power in regard of marriage, than the corresponding danger of exclusion or adulteration would justify denial of the right of the State to regulate the production or importation of the wine which is the necessary matter of the Eucharist. The elevation of natural marriage to the supernatural dignity of a sacrament affects the responsibility of civil governments in only two ways ; it calls for more reverent care in guarding the ap- proach to matrimony, and it makes a breach of the marriage bond the greater wrong, as being touched with the reproach of sacrilege ; the risk of careless administration, or of a sacri- legious system of legal divorce, is no reason for removing marriage from the cognizance of the State, as the risk of profanation is no ground for exempting sacred places from the protection of the police. It is always to be presumed that right will be done by the powers ordained of God, nor is the authority so given forfeited by abuse. The State is not the only organization of human society. It is clear that mankind as a whole has a real social unity, continually recognized in ethical theory, though it has never secured an instrument of common government ; it is a natural organism, though not politically ordered : it is not amorphous, because the species cannot exist without nucleated divisions comparable to the constituent cells of a living body. Forms of State, civic, national or imperial, are such divisions, and they cannot exclude the possibility of other divisions of a similar kind cutting across them and penetrating them. The unity of a family is not destroyed by the dispersion of its members under more than one VARIOUS KINDS OF LAW 67 national government. Nature gives no special sanction to territorial delimitation, and a tribal or national ordering of society, with legislative and judicial functions complete, can perfectly well be independent of vicinage. The Jewish nation has illustrated this possibility for many centuries. Societies of this kind, whether natural as resting on birth and inheritance, or artificial and formed by the voluntary association of individuals, do in fact make rules for their members ; when sufiftciently established, they seem to be capable of giving to such rules the character of law. This power results from the natural tendency of men to social order, which does not point to one sole kind of conununity. Men can incorporate themselves. The theory of an unitary sovran State, which alone has corporate existence in its own right, and from which all other powers of incorporation are derived, is not taught by nature. It is a highly artificial product of political speculation, beginning with the Greek City, given a wider extension in the Roman Empire, revived with the study of the Civil Law in the Middle Ages, and pressed to a hard conclusion by the lawyers of modern Europe. Its speciousness comes from the fact that the State, as ordinarily understood, can refuse to recognize such independent jurisdictions, and that without this recognition it is difiicult, under modern conditions, to enforce obedience. Yet obedience can be enforced in a measure where exclusion from the independent community is a matter of grave con- sideration to the individual. The recent history of the Christian Church, and of many organizations of social or economic value, is sufficient proof. It is mere pedantry to deny that the rules of such societies have the essential quality of law. Human law is the self-regulation of a society existing in accordance with natural law ; it is recogniz- able in all cases where the society is able, by whatever kind of pressure, to put constraint »n its individual members. 68 OF MARRIAGE IN HUMAN LAW A society exercising this function, whether territorially organized or no, whether political or religious or economic, may be checked and even broken up by the superior force of another society ; but so long as it remains in action it has the power of making laws. The technical objection to an impeyium in imferio is mere jealousy on the part of an overbearing society. We have, then, to face a further complication. As human law may be in conflict with natural law, so also diverse human laws may be in conflict with each other. For the individual man may be, and usually is, a member of more than one law-making society. If the various laws to which he is subject be antagonistic, he will be put to the question whether of them he should obey. There is here no indisput- able solution as in the case of conflict between natural and human law ; he will have to judge, by the light afforded to his conscience, where the greater weight of authority resides- In some cases judgment wiU be swift ; one society may be obviously superior by the ordinance of God. In other cases there will be long hesitation, and the decision may seem doubtful even to the man who is obliged by circumstances to decide. From this difficulty the constitution of human nature seems to allow no entire release. The Christian Church as a whole, and certain of its several parts, are law-making societies of this kind. It may be true, as contended by Sohm and others, that the Kingdom of Heaven was originally announced as a spiritual influence informing the consciences of individuals, and only by second- ary action affecting human society ; but this takes account of nothing but the preaching of the Gospel. But preaching was translated at once into action, having action for its immediate object ; and this action could not be other than social. The sense of brotherhood under the common father- hood of God, so characteristic of the Gospel, could be realized CONTROL OF MARRIAGE BY THE CHURCH 69 only by association. The inevitable result, natural and therefore of divine appointment, was the instant emergence of a social order. " Probably never in the history of religion," says Harnack, "has a new society appeared with a more abundant and elaborate equipment." * There were two reasons for this : the first, already noted, that such development was natural ; the second, making for swifter growth, that the Church issued from Judaism. The Jews were a nation, not tied down to any territory though having their head-quarters at Jerusalem, held together by a bond mainly rehgious but entirely effective, a nation with a govern- ment and jurisdiction which even the jealous authorities of imperial Rome were fain to recognize. Christians were a small minority among them, but they claimed to be the true Israel, the faithful remnant of a people that was in the main apostate, and so the inheritors alike of the promises of God and of the national life. The title Ecclesia means no less. According to the familiar order of this national life the Church was organized : it was the Diaspora.* The national law was taken over intact, and was after some contention adapted by the authority of the Church to the new require- ments of the Gospel. The spreading of the Church beyond the limits of Jewry affected the position less than might have been expected. Those who were brought in of the Gentiles accepted the greater part of Jewish tradition as their own inheritance ; the scriptures of the Old Testament became their hterature, and the Hebrew patriarchs became their forefathers ; Jerusalem, the Old or the New, was their holy city, and the law of Moses was the foundation of their jurisprudence. They were subject, it is true, to the various jurisdictions subsisting within the framework, as yet loose * The Constitution and Law of the Church in the First Two Cen- turies, p. 20 (Engl, transl.). * James i. i ; i Pet. i. i. 70 OF MARRIAGE IN HUMAN LAW knit, of the Roman Empire, or to tribal and national govern- ments beyond the borders of the Empire ; they were taught to render a conscientious obedience to these, as ordained of God, and as far as possible the ordinary affairs of life were left to such discipline ; but there were limits to this obedi- ence, and they needed a straiter discipline of their own. " Ecclesiastical law," says Harnack again, " arose in the main from the necessity of replacing those laws and regula- tions in force in the State, which Christianity was unable to recognize, by others dealing with similar conditions, and of improving those which Christianity was able to accept. . . . Paul already took a step in the former direction when he forbade the Christians to seek for justice at the hands of the tribunals of the world, and enjoined upon them to have recourse to qualified Christian brethren (i Cor. vi.). But the whole organism of the constitution of the Church with its officials, right down to the development of the monarch- ical episcopate in every local community, is to be regarded as the formation of a legislative system, which arose simply because it was not found possible to recognize the existing organizations with their officials except very conditionally and within narrow limits." ^ One may think it more than probable that a like development would have taken place without the pressure of this particular need, but the actual mode of development is here accurately portrayed. From the first, the Church was a law-making society, exercising both legislative and judicial functions. But what is the legislature of the Church, and where is the seat of judicature ? The question is one for a general treatise on the Church, but it seems necessary here also to deal with it in summary fashion. Setting aside, as contrary to the terms of the ApostoUc commission, the contention of Marsiglio of Padua that for 1 Ilyid.,lp. 144. POWER OF THE EPISCOPATE 71 all societies alike, and so for the Church, legislative power resides in the muUitudo, whence it is deputed to representa- tives, we find two possible answers to the question. The power of binding and loosing, which is both legislative and judicial, was vested by our Lord in the Apostles, and con- veyed through them to others. It is conveyed either in solidum to the whole episcopate, according to St. Cyprian's definition, and exercised in undivided plenitude by each several bishop, or in a special measure to certain principal bishops, and to the Roman See in chief. ^ Setting aside again, as contradicted by the evidence of history, the contention that our Lord conveyed to St. Peter, and through him to the Roman pontiff, a pecuUar and miiversal power, we find the two answers resolved into one by the consideration that patriarchal and metropohtical powers emerge gradually by differentiation from the general powers of the episcopate. They were created by the practice of the Chtirch, and are founded on the consent of the other bishops. But there seems to be no ground on which it can be argued that the bishops severally are able to make a final and irrevocable transfer of any part of their power, or to bind their successors by any submission to the authority of a superior See. They remain, therefore, always capable of resuming into their own hands the plenitude of ^ C3rprian, De Cath. Eccl. Unitate, 5 : " Quam unitatem tenere firmiter et uindicare debemus . . . ut episcopatum quoque ipsum unum adque indiuisum probemus. . . . Episcopatus unus est cuius a singulis in solidum pars tenetur." In the Council of Trent, Didacus de Pa3rva argued : " Cyprianus, ut primas Africae, dis- pensavit cum virgine incontinente quia tunc potestas dispensandi nondum erat reservata papae, sed earn, poterant etiam facere pri- mates " (Theiner, ii. 261). Esmein says that in the seventeenth and eighteenth centuries French bishops still dispensed with impedi- ments of consanguinity and affinity in the third and fourth degrees (Le Manage en Droit canonique, ii.;"33i). 72 OF MARRIAGE IN HUMAN LAW the power to bind and to loose. Thus St. Cyprian himself, though acknowledging without stint the superiority of the Ecclesia principalis at Rome, could repudiate the ruUng of St. Stephen in the matter alike of the baptism of heretics and of the Spanish bishops Martial and BasiUdes.^ The absolute independence of each several bishop is then checked only by the moral obUgation to act in concert with the rest ; and this obligation is enforced by the power residing in a S5mod of bishops to depose one who acts in a disorderly fashion. A bishop is thus constrained to act in co-ordina- tion with others, and even in subordination to a synod or to a metropohtan, and a system of hierarchical law is thus pro- duced, to which he ordinarily conforms. But he has the power to withdraw himself therefrom, subject to the risk of deposition. The chief restraint put upon him consists of the circumscription of his action within the hmits of a dio- cese. He is thus in theory sole legislator and supreme judge in ordinary for his own local Church. In theory, I say, because in practice no bishop seems to claim power in this full extent, but is content rather in most matters to adminis- ter more general laws made by his colleagues in common, and to allow an appeal from his judgment to provincial and higher authorities. The legislative powers of a bishop are therefore usually in abeyance, but they subsist in reserve, and are the very fount of that law which he administers in apparent inferiority. In regard to marriage, the Church began with a twofold task. In the first place, it had to guard and put abroad the ' Cyprian, Epp. 67, 72-5. Compare the action taken by French, Enghsh and other bishops, long after the complete estabhshment of the papacy, in " -withdrawing obedience " from the rival Popes whom they severally recognized during the later years of the Great Schism. On this head Creighton may be consulted. Hist, of the Papacy, vol. i, chap. 2, ad fin. THE CHURCH SLOW TO LEGISLATE 73 teaching of the Master about the true nature of wedlock, the natural law. In the second place, it had to frame regula- tions for constraining its members to the observance of that law, and also to supplement the natural law, should that be found advisable, by further rules of conduct. In other words, the Church was at once the teacher of divine law and a maker of human law. Both occupations are Illustrated by St. Paul's replies to the questions of the Corinthians. He distinguished between what he said by way of permission or dispensation, and what by way of commandment ; between what he himself gave in charge, and what he said in the name of God ; between the commandment of the Lord and his own judgment ; between obligations of Christians and safe- guards of marriage that were acknowledged equally by the heathen.^ We see here the beginnings of what grew into a vast sys- tem of jurisprudence, for marriage ultimately became one of the chief subjects of ecclesiastical law ; power to legislate and adjudicate is thus early claimed and exercised. But the Church did not jealously affect this power. The incon- venience of having two marriage laws touching the same person is obvious ; if the kingdoms of the world could be induced to bring their laws into conformity with the divine law, the Church might weU be content. Even as things were, there was a wise reluctance to force a conflict. That objection might be taken, rightly or wrongly, to a decision involving such conflict, is shown by the complaint of Hippo- l3^us against Callistus, who allowed women of noble birth to contract marriage, in defiance of the prohibition of Roman law, with men of lower rank or even with slaves.* When the Empire definitely became Christian, the efforts of the Church 1 I Cor. vii. 6, 12, 25, 39 ; v. i. 2 DoUinger, Hippolytus and Callistus, pp. 147 seqq. (Engl.Transl.). 74 OF MARRIAGE IN HUMAN LAW were directed to the reform of the Civil Law, and the Eastern Church ultimately went far in accommodating itself to the legislation of Justinian. The Western Church, on the other hand, continued to uphold its own rule, with the result that it finally ousted the law alike of the Empire and of the new Germanic Kingdoms, being exclusively invested by common consent with legislative and juridical functions in regard to marriage. The modern States of Europe and of the New World have reasserted their right to regulate marriage by law, and the rule of the Church has once more become what it was at the beginning, a law for the faithful which is possibly, and usually, in disagreement more or less with the laws of the State. At the present day, then, we find these forms of human law in operation as regards marriage. In Eastern Christendom there is a system based on the sacred canons of the Church, but seriously modified by the Civil Law of the Roman Empire ; elsewhere the various States of the world have their several marriage laws ; concurrently the sections into which the Christian Church is administratively divided regulate marri- age for the faithful by canonical rules and spiritual jurisdic- tion ; the Jews throughout the world live by their own law, with more or less of subservience to the laws of the country in which they are domiciled ; the Musulman law runs effectively in some regions where it is not accepted as national law ; throughout India the law of marriage recognized by the supreme Government foUows the reUgious profession of the parties ; in some European colonies the tribal laws of the aboriginal inhabitants run concurrently with those of the colonists, being severally applicable with a strict distinction of persons ; in certain Asiatic countries the laws of European States apply by virtue of capitulations to their nationals resident therein ; when note is taken of the particular mar- riage laws of the princely houses of Germany, and of the CONTRADICTING NATURAL LAW 75 doubtful efficacy of Mormon law in North America, I know not if a complete survey has been made in brief of the present state of human law regarding marriage. These diverse laws vary more or less from natural law in the five ways above specified. Little need be said about the fifth mode of divergence. A human law directly opposed to the divine law, requiring men to do what the divine law forbids, or forbidding them to do what the divine law commands, will not often be enacted in respect of marriage, and presents no difficulties to the con- science of a Christian. He must obey God at all costs. Under this category would come a law which should not merely recognize in place of marriage a terminable contract of union, but also forbid any contract of true marriage ; a law purporting to restrain the Church from teaching or enforcing on its members any part of the divine law ; and any attempt to compel the recognition of a forbidden marriage. The other four modes of divergence call for careful con- sideration. For here human law may differ from the divine law of nature, juridically or by legislation, in ways which are tolerable, but always perilous and requiring the closest watchfulness. And first, juridically. The natural law has no judicature, save in the tribunal of conscience erected within each man's soul. There is, indeed, a form of judgment, known only by execution of sentence, in which God Himself, the supreme Judge, visits offenders against His laws with the consequences of their misdeeds ; but of this working of the divine provi- dence little is understood, and that imperfectly. There is also an expectation of judgment, in which every man shall receive the due reward of his deeds, known to the Searcher of hearts. But that does not belong to the present order of human life. In this order the regular administration of justice, whether for the pimishment of crime or for determin- 76 OF MARRIAGE IN HUMAN LAW ing the right between man and man, is committed to human society and controlled by human law. A tribunal appointed for this end has for its first duty the enforcement of natural law, for its second the interpretation and application of the particular laws of the society in which it is founded. But the natural law also requires interpreta- tion as it is applied to particular cases, and here any tribunal may err ; therefore a judge, even while he professes to be following the law of nature, may depart from it. Further, he is bound by the particular laws of his own society, whether a fundamental law such as the Constitution of the United States of America, established custom, or the last word of the legislature, and he cannot set natural law to over- ride these ; he may read them narrowly, and studiously pare them down to the closest possible conformity with natural law, but he must finally accept the obligation which they impose. This does not mean that human law is held to be superior to natural law ; it means only that a judge who is set to administer a particular system of human law must assume this system to be in agreement with natural law. He must therefore judicially hold anything conflict- ing with the system to be no part of the law of nature. The alternative is to abdicate his tribunal. It was partly for this cause that Christians of the first three centuries were for- bidden to hold judicial office in the Roman Empire. A judge, then, who has before him a cause in which a question of marriage arises, must necessarily follow the parti- cular human law which he administers, where it prescribes anything ; and at the present time such laws are usually so complete in detail that variations from natural law are attributable rather to the legislative than to the judicial authority. In some countries, however, and notably in Scotland, there has been so little legislation about marriage that questions not infrequently occur which can be resolved JURIDICAL ACTION 77 only by consideration of natural law. In such cases, as also in a less degree where positive law is to be applied, a tri- bunal may be hindered in two ways from making an accur- ate determination. In the first place, evidence is required. Courts have their several rules of evidence, which they usually follow, or by which they are bound. These are sometimes highly artifi- cial, and a case may be turned by the arbitrary exclusion of important testimony. When it is necessary to determine the question whether, in fact, a contract of marriage has been made, the court can only decide the case on the evidence admitted. In Scotland, where the judges are usually inclined to a favourable construction, scanty evidence of the fact will be held sufficient, especially if the parties are known to have lived together as man and wife. In England, where the contract is guarded by stricter formalities, much more rigor- ous proof is demanded. If in the one case an union may sometimes be recognized by law which is no true marriage in the natural order, there is obviously still greater risk in the other case of the denial of a true marriage, by which the natural law will be set at naught. In the second place, a rule of law respecting the right of apphcation to a court may hinder the ascertaining of facts. A tribunal may look at the question of the vaMdity of a marriage from two different points of view. It may set itself merely to arrive at the facts, or it may regard the case as arising out of the motion of a petitioner who seeks a decision for a purpose of his own ; he may, for example, desire to be released from the obUgations of a marriage which he has ostensibly contracted. A court which takes the latter point of view may reasonably impose certain conditions on the petitioner. It may rule that he shall not be allowed to take advantage of any fault or neglect of his own. Such is the practice of the High Court of Justice in England, illus- y% OF MARRIAGE IN HUMAN LAW trated by a notorious case decided some years ago, in which the petitioner asked for a decree of nuUity on the ground that the other party had consented to marriage unwiUingly under constraint ; the constraint was proved, but the peti- tioner was shown himself to have taken part in applying it, and his petition was therefore dismissed. In this case there was evidently no true marriage, but a legal declaration of the fact was disallowed, and the parties were therefore debarred by law from contracting fresh unions. The oppo- site point of view is illustrated by a case recently decided in - the tribunal of the Rota at Rome. A man made at the time -of his marriage a false declaration, which had the effect, "according to the law there administered, of vitiating the marri- -age contract ; he himself afterwards applied for a decree of •nullity on this ground ; the practice of the court required "the judges to investigate the fact, and to decide accordingly ; 'the facts were found to be as stated, and the court had no "option but to declare the marriage void.^ This practice ! certainly guards the reaUties of marriage more jealously ' than the English rule, but it has the serious drawback of lending a handle to one who woiild entrap another into an invahd marriage. I The above examples show how juridical difficulties may cause divergence from the divine law of nature. More im- portant, and more extensive, are the divergences brought about by legislation. First, by way of addition. Human law prescribes some- thing over and above what natural law requires. Ecclesi- astical law, for example, requires that marriage shall be contracted pubhcly, in facie ecclesiae ; the common law of Ireland requires it to be done in the presence of a minister of religion ; the law of Scotland requires the presence of • Scs Roman Documents and Decrees, January, 1912, pp. 80-3. DIVERGENCE FROM NATURAL LAW 79 witnesses, and the previous publication of banns ; the law of France requires the parties to attend at the mairie of the place where one of them resides, and there to make their verbal contract before a pubHc official. In England, the use of the ritual of the Church was once required by law in all but some few specially excepted marriages. The pubUc registration of a marriage is obUgatory in most countries. These various provisions of law may be enforced under severe penalties ; they may conflict sharply with each other where there are simultaneous authorities claiming obedience •from the same persons, as the French law of civil marriage confUcts with the ecclesiastical law, but they do not so far run counter to natural law, since they merely require actions which are naturally indifferent. Of the same kind are regulations concerning dowry, the specific rendering of mutual support and service, the Uability of husband or wife for debts severally incurred, the legitimacy of children, and succession to goods or honours. Some of these matters are ordered in principle by the natural law, but considerable scope is left for supplementary legislation. Secondly, as it has been said, human law may refuse to enforce what nature requires. It may refuse to treat adultery, polygamy, or any other breach of the marriage bond, as a crime. In England, the old procedure for compelling husband and wife to live together, at the in- stance of either party, has been made inoperative, and a wife has been almost entirely freed from legal liability for the support of her husband. These deflections from the natural order tend to obscure the character of the relation set up by marriage, especially for the many who have not learnt to distinguish between moral and legal obli- gations ; but they do not actually hinder the observance of the divine law by individual persons, or otherwise raise any embarrassing conflict of authority. 8o OF MARRIAGE IN HUMAN LAW In the third place, human law may interpose impediments in the way of a marriage naturally permissible. It must be remembered that even nature imposes some restrictions ; not every man is free to marry every woman. It is not easy, as we have seen, to determine precisely what are these natural bars ; the difficulty is increased by the general creation of artificial obstacles, since it is hard to draw the line between those which are truly natural and those originating in the common opinion of mankind. The test of universaHty is good on the affirmative side, for if the common sense of the whole race condemn a certain marriage, this agreement can hardly be put down to anything but a natural instinct ; but it is of little value on the negative side, since there may be a small part only of the human race sufficiently acquainted with certain truths of nature to recognize them as law. What is abundantly clear is the addition by human authority of many impediments to those founded in nature. The laws of savage tribes are rich in such prohibitions, which lapse with the advance of civiUzation towards the true natural conditions of human Mfe. Strict rules of exogamy or of endogamy, complications of totemism, inexpUcable barriers of tabu, attest the activity of remote legislation setting up hindrances to marriage, which retain their force long after their primary purpose or meaning is forgotten. Lingering effects are found in civilized hfe, and few systems of law which have been developed in freedom are without such traces of savagery. Possibly in historic connexion with these obscure im- pediments, but based on more intelligible reasoning, are dehberate prohibitions of intermarriage between persons of different nations, of different castes, of different rehgion, of different social standing. The strict segregation of the Jews dates from the reforms of Ezra, though it was based on older laws. The lus connuhii was confined first to Roman IMPEDIMENTS 8i patricians, then to aU citizens of the repubhc in common ; it was extended charily as a favour to cities coming into close alliance. St. Paul seems to have laid down the rule for Christians that they must marry only " in the Lord," ^ that is to say, with behevers. Restrictions of time, again, are imposed on lawful marri- ages. By the rule of the Church marriage has been for- bidden within certain sacred seasons ; * by the law of Eng- land it is forbidden except between certain hours of the day ; under the Swiss federal code a man may not marry before he is twenty years of age, a woman before she is eighteen. In Belgium, a widow may not marry within ten months of her husband's death. Marriage may be forbidden without special consents, un- known to the law of nature. A slave may be held alto- gether incapable of marriage, because he is a mere chattel of another man and therefore unable to enter freely into a contract ; but he is more usually allowed to marry with the consent of his master. The Roman law, with its exaggera- tion of patria potestas, extended the requirement of paternal consent far beyond the hmits indicated by nature. French law forbids a man to marry without his father's consent, except under conditions which do not become operative until he has reached the age of twenty-five years. In Eng- land there is required for the marriage of a member of the royal family, subject to not unhke conditions, the consent of the reigning sovran. Personal disqualifications, again, may be imposed. A vow of reUgion is by ecclesiastical law an impediment to * I Cor. vii. 39. • Such was the older discipUne, though in modern times only the puhlica pompa is forbidden. See Benedict XIV, Inst. Eccl., torn, ii., P- 443- M.C.S. G 82 OF MARRIAGE IN HUMAN LAW marriage, and in the greater part of the Christian Church men in holy orders also are forbidden to contract matri- mony. Artificial impediments of consanguinity and affinity have been added to those prescribed by nature. In several systems of law persons guilty of certain crimes have been forbidden to intermarry, as when a man and woman have conspired to murder the husband or wife of one of them with a view to marriage. The creation of such impediments in restraint of natural liberty seems to be within the power of any legislature. They may in some cases be injurious or contrary to public pohcy, as unduly interfering with an instinct of nature, but they do not involve any direct violation of a natural law. Neither, it will be observed, can they run counter to one another. A man who bows to the two several authorities of Church and State, or who is by the accidents of birth and residence made subject in some measure to the laws of two several States, can avoid a marriage forbidden either by the one or by the other. The prohibitions are concurrent and cumulative ; they cannot be contradictory. It there- fore seems to be the duty of a Christian to render obedience to all such prescriptions of law. A grave question, however, emerges when the legislature proceeds to enact that a marriage contracted in defiance of its prohibition is null and void. In no system of law, per- haps, are all prohibitions supposed to have this effect ; some only, of the graver kind, are selected as nuUif57ing the contract. Hence the distinction drawn between impedi- ments which are merely obstructive, and diriment impedi- ments which are destructive. Identical in effect is a law providing that a marriage shall be deemed void if it be con- tracted without those additional formalities mentioned above. That is, in fact, to make the lack of due formality a diriment impediment. This was done by the Council of DIRIMENT IMPEDIMENTS 83 Trent in the case of clandestinity ; a marriage contracted otherwise than in facie ecclesiae had previously been treated as illicit, but valid ; the Council decreed that it should in the future be invalid, and further defined the conditions of contracting in facie ecclesiae by requiring the presence of the parish priest and of two other witnesses. Clandestinity, so defined, thus became a diriment impediment wherever the decree was promulgated as law. In England, a still more stringent condition was imposed by the Marriage Act of 1753, which annulled almost all marriages contracted otherwise than with the ritual solemnities of the Church ; the Royal Marriages Act also annuls marriages contracted in disregard of its provisions. The law of France since 1792 in the same way not only requires a marriage to be witnessed and regis- tered by a civil functionary, but also annuls any contract lacking this formality. To the creation of diriment impediments by human law two exceptions have been taken. It is urged on the one hand that marriage is a fact of nature, which no positive law can annihilate ; if a man and a woman do, in fact, unite themselves in defiance of such law, they may rightly be punished, but their marriage stands in fact unassailable. It is contended more technically, on the other hand, that since marriage is a sacrament, and since the essential matter and form of a sacrament are supposed to be ordained by God, therefore the validity of a true contract of marriage, in which the matter and form of this sacrament consist, cannot be destroyed by any human authority. In defending the Council of Trent against the second objec- tion, Benedict XIV answers both. The matter and form of the sacrament consist, he says, in the actions and words of the parties by which they mutuo ac legitime deliver them- selves each to the other ; the Council decided that in future this should not be done legitime except under the prescribed 84 OF MARRIAGE IN HUMAN LAW conditions.^ But the sacrament of marriage, as we have seen, is nothing else but natural marriage contracted between baptized persons ; there is required for it nothing but the qualities that make a valid contract in the order of nature, together with the quahfication of baptism in the parties. Therefore, if this reasoning is to hold good, there must be added to the other qualities required by nature in a valid contract of marriage the further qualification of legitimacy ; that is to say, of accordance with the conditions from time to time imposed by human law. This is no mere after- thought of theology. As early as the twelfth century, Hugh of St. Victor so taught with emphasis.^ If the need of legitimacy can be thrown back to the natural law, the diffi- culty will disappear. And this seems reasonable. For human society and htunan law exist in the order of nature by, the ordinance of God, and marriage is primarily an integral part of that social constitution. It is, therefore, reasonable to contend that by the divine law of nature not only the outward trappings of matrimony, but also the essen- tial conditions of the contract, are subject to the control of hmnan law. If this be allowed, both objections to the crea- tion of a diriment impediment simultaneously disappear. It wiU be seen, however, that the reply as above conceived is too wide. If a contract of marriage, to be valid, must be legiti- mate, it will follow that neglect of any legal requirement will be fatal, and all impediments wiU be diriment. So much is claimed in no system of law, and it is obvious that an author- ity capable of creating a diriment impediment can also 1 Instil. Eccles. torn, i., p. 371. He elsewhere ajgued that the decree did not touch the essence of the sacrament, but only ren- dered the parties, in the given circumstances, " inhabiles ad contra- hendum." This has become the commonplace of theologians. » De Sacram. Christ. Fidei, ii. 11, 4. " Si consensus masculi et feminae legitimus, hoc est legitime et inter personas legitimas factus, non fuerit, coniugium in eo consecrari non potest." DIRIMENT IMPEDIMENTS 85 fence marriage about with safeguards, neglect of which are expressly determined to have a smaller effect. What is required is that a contract of marriage shall be legitimate only so far as concerns the set conditions of validity. But a further objection has now to be considered. It is said that human authority can indeed create diriment impedi- ments, but that where Christians are concerned this must be the authority only of the Church. The ground taken is that marriage is a sacrament, the administration of which belongs exclusively to the Church, or merely that it is sacrum, and therefore under the control of the Church, " quae rerum sacrarum sola habet magisterium." ^ The latter argument impUes the control of all marriages by the Church, the former looks only to the sacramental marriages of Christians. The larger claim would probably not be pressed. The Congre- galtion de Propaganda Fide has repeatedly held converts from heathendom bound, in respect of marriages contracted before their conversion, by diriment impediments arising out of their own laws.* The narrower claim needs examina- tion. Against it is the judgment of St. Thomas Aquinas, who says expressly that a person may by civil law be ren- dered ad matrimonium contrahendum illegitima. The con- text shows that he is speaking of diriment impediments, since the matter in question is consanguinity.^ Indeed, the 1 Leo XIII, Encycl. Arcanum, quoted by De Smet, De Sponsa- libus et Matrimonio, p. 261, who labours to reduce this obiter dictum to a demand that the State shall in such matters bow to the altius ius ecclesiae where it exists in act. 2 Gasparri, Tract. Can. de Matrimonio, vol. i. pp. 172-5. He dis- misses the contrary opinion as abstract scholasticism. ^ Sum. Theol. Suppl. 50, i. The objection stated is " Plures gradus consanguinitatis inveniuntur esse prohibit! uno tempore quam alio : lex autem humana non potest, ut videtur, matrimonio impedimenta praestare, quia matrimonium non est ex institutione humana, sed divina, sicut et alia sacramenta." The answer is : " Matrimonium, inquantum est in, pfficium naturae,__statuitur lege 86 OF MARRIAGE IN HUMAN LAW difficulty is easily solved by an application of the argument that we have just drawn from Benedict XIV. For it is a legitimate contract which is constituted a sacrament ; there cannot, indeed, be a separation in time between the natural contract and the sacrament, as though the contract were first made and then became a sacrament, for it is indi visibly one act ; but the contract is logically prior to the sacrament, and therefore conditions of legitimacy may be imposed with- out reference to its sacramental character. Thus the crea- tion of a diriment impediment by the State is not an inter- ference in the spiritual ministration of the sacrament. It presents an external obstacle to this ministration, but only as the exercise of legitimate force may in particular cases prevent a priest from ministering the sacrament of baptism or of the Eucharist. It prevents the actual ministration of a sacrament ; it does not pretend to invahdate a sacrament duly ministered. The relations of Church and State are often dehcate and difficult of adjustment, but unless the ministers and fabrics of the Church are to be entirely exempt from civil jurisdiction, this sort of interference must be recognized as possible and legitimate ; it requires only a just occasion to be reasonable.' The claim of complete exemption was put forward in the twelfth century, but now seems to be univer- sally abandoned. To make it good in respect of marriage, it would be necessary to claim exemption not only for those in the sacred ministry, but also for all persons and things in their relation to the sacraments ; it must be unlawful to arrest a man on his way to church, or to put an import duty on wine that is to be used for the Eucharist. In no other naturae ; inquantum est sacramentum, statuitur iure divino ; in- quantum est in ofificium communitatis, statuitur lege civili : et ideo ex qualibet dictarum legum potest aliqua persona efi&ci ad matrimonium contrahendum illegitima." Although the phrase is ' ad matrimonium contrahendum," the reference to consanguinity shows that the answer extends to diriment impediments. DIRIMENT IMPEDIMENTS 87 way could the civil power be restrained from all interference with the sacraments. But such restraint is palpably absurd. Therefore the State cannot on this ground be denied the right of controlling marriage by law. But to control marri- age by law is to determine the legitimacy of the contract, and to determine that a given contract is in the highest degree illegitimate is to create a diriment impediment. This, then, is within the province of the State. It is evident that a legislature may set up many or few such impediments. The number is a matter of pubHc policy. The present law of Scotland appears to know no diriment impediments except such as are supposed, rightly or wrongly, to rest on the divine law ; consequently, marriage is placed as nearly as possible on its natural basis, and there is great stabihty of the bond. On the other hand, the Canon Law of the Middle Ages abounded in diriment impediments, so that nullifications of marriage were frequent and grave moral disorder ensued. It cannot be doubted that multiphed impediments are evil ; the moral effect of making clandes- tinity a diriment impediment is matter of serious debate. To conclude, it appears that any genuine legislature can create impediments, obstructive or diriment, which will bind the consciences of aU persons properly subject to the same. A person subject to two authorities, as a Chris- tian is subject alike to the Church and to the State under which he lives, must observe the regulations of both. Neither authority can abrogate the impediments created by the other, as neither can abrogate impediments which are natural. The various laws do not clash ; they are con- current. In the next place we have to consider the power of dis- pensation, absolute or contingent, inhering in human law. An absolute dispensation, as we have seen, is a definite suspension or relaxation of law in a particular case ; it has 88 OF MARRIAGE IN HUMAN LAW the effect of entirely removing the obligation to observe the law ; it is therefore a kind of abrogation, and can be granted only by the authority which has made the law. The legislature can dispense, or can commit specific powers of dispensation to officials. The obligation of the divine law of nature cannot be thus set aside except by God Himself, nor is there any ground for supposing that God either grants dispensation directly or commissions any minister so to act. We may rather reckon this impossible, since such relaxation is called for only on the ground of some defect in the law making it inapplicable to a given case, which is not to be thought of in connexion with God's law. Here, therefore, is no room for any variation from the divine law ; but the exer- cise of the dispensing power must be considered as a whole, the lines of division being not very clearly marked, and absolute dispensation must be as far as possible defined before we review that contingent kind which is alone applic- able to the law of nature. In every system of human law dispensation is possible, whether it be allowed in fact or no. Things commanded in relation to marriage or the contract of marriage may be relaxed, things forbidden may be allowed, impediments obstructive or diriment may be removed. Removal of a diriment impediment makes a marriage valid which would otherwise be void ; other dispensations liberate the persons to whom they are granted either from the obligation to act in a certain way or from the consequences of a breach of the law. These obligations and consequences are either moral or legal, and dispensations are therefore said to be granted either in foro conscientiae or in foro externa. A dispensation may be granted either before the act to which it refers is undertaken, with a view to its lawful performance, or after it is done, with a view to its condonation. When ABSOLUTE DISPENSATION 89 a diriment impediment is removed after a putative marriage has been contracted, two courses are possible : either the consent of the parties is renewed, and the marriage is then vahd from the date of such renewal, or by a special act of grace the marriage is reckoned valid from the beginning. Such validation, technically called sanatio in radice, is effected in Enghsh law by a special Act of Parliament, in favour of parties who have inadvertently and in good faith contracted marriage without fulfilling some of the requisite conditions. Absolute dispensation must be provided for within the system of law to which it applies. The legislature of one community, or its officials, cannot dispense with require- ments imposed by the laws of another community. But this rule, so obvious and inevitable, is subject to one con- siderable qualification. By the comity of nations the laws of one country are in a measure recognized and enforced by the courts of another country, and the domicile of the parties may therefore be a matter of considerable impor- tance in matrimonial causes. Though there is no perfectly consistent practice in this regard, an English Court will consider the validity of a marriage contracted abroad in the light of the lex loci. A marriage may thus be held valid which would be invalid according to the strict interpreta- tion of EngUsh law, or conversely. But there is no doubt that a marriage so adjudged invalid might be vaUdated for the purposes of English law by a special Act of Parliament. For the purposes of English law, I say, because this dis- pensatory act might have no effect in the other country con- cerned. What makes the dispensation possible in England is the fact that the law under which the marriage was de- clared void is for this purpose adopted, by international comity, into the body of English law ; as so adopted, but not otherwise, it can be set aside by the English legislature. go OF MARRIAGE IN HUMAN LAW A nice question of conscience will ensue, whether the parties can hold themselves morally free to continue in the marital relation ; it will be for them to- determine, with such guidance as maybe obtainable, which of the two conflicting authorities has the greater claim upon their obedience. The answer may partly depend upon their existing domicile. From this there follows an important corollary. The Church also is a community having the power to create impediments binding its own subjects, and to relax them by dispensation. The Church also should respect the laws of other communities creating impediments which bind their own subjects. The subjects of the Church are in all cases subject also to a civil community, and therefore they owe obedience to two several authorities. They ought not to disregard impediments created either by the one autho- rity or by the other. Normally each authority should respect the impediment created by the other ; the State should not recognize marriages contracted by subjects of the Church in defiance of the rules of the Church, and the Church should not allow marriages contracted by subjects of the State in defiance of the rules of the State. Jealousy of sovran rights on the one side or the other, and sometimes on both, usually prevents this reciprocity ; but the Church, as the teacher of a higher regard for right, may be expected to act in this way even where reciprocal action is refused. It seems clear that the Church ought not ordinarily to allow marriages contracted in disregard of civil law. Only in case the law should positively demand something contrary to the order of nature, or something which would render impossible obedience to the rules of the Church, is there ground for open antagonism. But when this respect for law is fully established, it will still be possible, as for the State, so also for the Church on behalf of its own subjects and for its own purposes, to dispense with the observance ABSOLUTE DISPENSATION 91 of a law not its own. Given the most complete reciprocity, the State might for its own purposes, as for example in regard to the legitimation of issue, validate a particular marriage declared void by the Church ; and equally the Church might for its own purposes validate a marriage nullified by the State. The purposes of the Church are purely moral and spiritual, and thus the parties to a marri- age so validated would be free in conscience to live together as man and wife, and would not be free in conscience to break their union or to form another. For example, a mar- riage contracted by a member of the English royal house contrary to the provisions of the Royal Marriages Act, and so nulUfied by the laws of England, might by dispensation of the Church be validated for ecclesiastical purposes, and would then be a marriage good for the conscience of the parties. Such an union may be caUed a marriage of con- science, though the phrase is more commonly used in another connexion.' This kind of cross-dispensation must not be confused with the practice established in England, by which officials of the Church dispense with legal impediments created or recognized by the laws of the State. That anomalous juris- diction is due to the suppression of the distinction of Church and State during the Middle Ages, an abiding consequence of which is that rules of the Church have been incorporated into the laws of the realm. Of this there is more to be said later ; it is enough to say here that dispensations granted by bishops and their officials have both civil and ecclesias- tical effect. This combination of functions appeared when Church and State fell apart and the State began to have its separate marriage law. By the present law of England, all marriages contracted without legal formalities are ordinarily treated as null and void ; clandestinity, which was for- ^ Below p. 99. 92 OF MARRIAGE IN HUMAN LAW merly an obstructive impediment in the law common to Church and State, is thus made a diriment impediment in the laws of the realm. ^ The customary bishop's licence, however, dispensing with publication of banns, or a faculty from the Archbishop of Canterbury more largely dispen- sing with other forms, commonly known as a " special licence," is effective for the removal of the impedi- ment. These dispensations consequently have a double effect, removing both the old ecclesiastical impediment and the new civil impediment ; in the archbishop or bishop must be recognized two functions, for he is at once an officer of the Church in his hierarchical capacity, and an officer of State constituted by statute. The power of absolute dispensation must be recognized as one that is lawfully exercised, but also as one that should be used with extreme caution. Dispensation is vulnus in legem, and frequent disturbances of the kind weaken the law to the verge of destruction. The marriage law of medie- val Europe was in this way brought into contempt, and lost almost all power of ordering social life. But contempt of human law carries with it as a consequence contempt of the divine law, since in the general opinion of men the two are seldom clearly distinguished, and that which has the more visible and material sanctions either buttresses the spiritual authority of the other, or drags it down in its own ruin. Thus the practice of absolute dispensation, though not directly contravening the divine law, may seriously hin- der its effective working. But excess of dispensation is obviously brought about by excessive regulation ; when requirements, prohibitions and impediments are multi- plied, individual relaxations are inevitably numerous, for strict observance becomes a burden that cannot be endured. 1 Infra, pp. 206-8, CONTINGENT DISPENSATION 93 That was the fault of the medieval marriage law. The happiest law is that which adds least to the law of nature, and can therefore insist most strictly on the observance of the whole.. A contingent dispensation is grounded not on the in- applicability of the law regarded in itself, but on the neces- sity of the individual subject. It follows the maxim. Nemo tenetur ad impossibile. There is no assumption that the law is in a particular case bad law, and therefore to be stet aside, or mischievous in operation and therefore to be sus- pended ; enforcement of the law might be in all respects salutary, but the fact is recognized that the subject cannot comply. Thus the most perfect and the most universal law is open to dispensation of this kind. Who can dispense in this case ? The authority of the legislator is not here required, for there is no question of abrogating or relaxing the law. Indeed the dispensation is in a sense automatic, for it follows from the mere fact of the impossibility of compliance. A man who in his own conscience knows himself to be unable to obey is ipso facto dispensed in conscience from the obligation to obey. But for two reasons this clearing of the conscience wiU be in- sufficient. In the first place, no man has a merely indivi- dual life ; obedience to law is a matter of social observance, and the impossibility of obedience needs some kind of social recognition if it is to be a complete discharge. In the second place, even as regards the individual aspect of the case, the inevitable bias of self-interest forbids a man to be judge in his own cause, and in all grave matters the -prima facie judgment of conscience should be referred to an independent tribunal. We speak of a tribunal, and it has been held that con- tingent dispensation is essentially a juridical act. " It is improperly called dispensation," says a well-known author, 94 OF MARRIAGE IN HUMAN LAW " because it is only a judicial, whereas dispensation proper is a legislative, act, being of the nature of a temporary repeal of law." ^ It is held, indeed, by Esmein that prior to the eleventh century all dispensations in ecclesiastical law were of this character, consisting merely in a remission of the disciplinary penance usually imposed on breakers of the law.* But whatever may be the history of the practice, whether in the Church or in any other society, this is not an adequate account of the dispensing power. A dispen- sation differs from an act of grace by which punishment is remitted or sentence is withheld in favour of the guilty ; it is a declaration that no guilt is incurred, that the act in question is, in view of the circumstances, innocent and lawful. The judicial act to which it corresponds is complete acquit- tal. But neither is this an adequate comparison ; for acquittal follows the imputation of an offence done, while a dispensation is more frequently a declaration, made before- hand, that a thing may lawfully be done. Therefore, when a tribunal is spoken of in this connexion, the word must not be taken in any strict sense. It is enough that the declaration be made by some competent authority, to which the person dispensed owes allegiance. The dispensing authority need not stand in any particu- lar relation to the law which is involved. For the only matter to be determined is the question whether the sub- ject has a valid excuse for not observing the law. For the due ordering of this matter the only thing requisite is a proper relation between the authority and the person dis- 1 E. G. Wood, The Regal Power of the Church, p. 75. 2 Esmein, Le Mariage en Droit Canonique, vol. ii. pp. 3i9-r22. The change took place, he says, when the sacred canons ceased to be merely disciplinary and became laws, since " les lois sont de leur nature imperatives, et s'imposent au juge." Consequently dispen- sation became " I'exercice du pouvoir 16gislatif." DISPENSATION FROM DIVINE LAW 95 pensed. No system of law, therefore, need make provision for contingent dispensation, and such dispensation from any law, even the divine law of nature, can be granted where- ever a legitimate human authority is constituted. It is possible, indeed, to argue that all human authority is ulti- mately founded in the law of nature, which thus confers the power in question ; but that refinement is unnecessary. Every law contains implicitly provision for the case of necessity, but it need not prescribe how the measure of necessity shall be judged. It is enough that man lives inevitably in a social order and under a social authority, which has an inherent right to direct and control his actions. It is obvious that contingent dispensation is important chiefly as applied to divine law. Human law admits of absolute dispensation ; divine law does not. It ceases to bind only in the case of necessity. Necessity is not to be interpreted too rigidly. It is not only sheer compulsion or physical impossibility that is to be reckoned with ; ac- count must also be had of human frailty. The necessity which justifies dispensation is a moral necessity. The hardness of men's hearts was a ground for the permission of divorce under the Mosaic law ; the permission was grossly abused, but was not on that account entirely done away. A moral necessity, then, is sufhcient ground for contin- gent dispensation. The necessity must be real. The value of the dispensation depends on this reality. An erroneous judgment may discharge a delinquent from the imputation of guilt before the tribunal by which judgment is given, but it does not discharge him from all obligation if his own conscience be better informed. The dispensation remains always contingent. Subject to this contingency a human authority can dispense its own subjects from the obser- vance of the divine law ; it being clearly understood, as 96 OF MARRIAGE IN HUMAN LAW Benedict XIV has said, that there is no loosening of the binding character of that law, but only an interpretative ruUng that in the circumstances of the case a particular person does not come under the law/ This being the largest claim made for the dispensing power, we may con- fine our attention to it, remembering that what is allowable in regard to divine law may with better reason be done also where human law is concerned. Of contingent, as of absolute dispensations in the matter of marriage, there are two purposes. They are intended either to remove impediments, and so to validate and regu- larize a marriage, or to abate the obligations laid upon those who are married. It will be convenient to consider the latter purpose first. The natural law requires husband and wife to abide in permanent union, with complete community of life. From this ideal there are two possible derogations. They may separate entirely, or may remain united in a state of imper- fect community. We have to ask whether such depar- tures from the divine rule are contingently permissible. Complete separation, a mensa et toro as the phrase runs, is properly called divorce. This word is frequently abused to mean a judicial decree either declaring the nullity of a marriage or pmrporting to dissolve the bond of a vahd mar- riage, and its proper sense is sometimes even excluded. That such separation will sometimes be necessary is in- contestable, for it may result from natural causes beyond the control of the parties, but there are moral necessities also which may justify it. For either party, however, to refuse cohabitation is to claim that right of judging in one's own cause which is intolerable in social life, and the inter- vention of lawful authority is therefore required. Divorce ' De Synodo Dioecesana, vii. i, 7. DIVORCE 97 must be regulated by law. There is, perhaps, no system of law which makes no provision for it ; in many systems it is allowed with injurious frequency and ease. It was in face of a question about a lax interpretation of the Mosaic law that our Lord took opportunity to assert anew the permanence of marriage and the closeness of the union effected ; but He recognized the dispensing authority of the law. " Moses," He said, " for your hardness of heart suffered you to put away your wives, but from the begin- ning it was not so." ^ Divorce was contrary to the natural institution, but allowed for a just cause. The hardness of heart which justified it has been variously interpreted to mean that a man would treat his wife with intolerable harshness if compelled to live with her against his wiU, or that human obstinacy and selfishness rendered the strict observance of the natural law impossible. He further taught the indissolubility of the bond by asserting that even after divorce the parties were still capable of adultery, but this was an enlargement of the answer demanded. The immediate question was the lawfulness of divorce. Was none to be allowed ? The Mosaic dispensation seemed to be reprobated, and the disciples discontentedly observed that this made marriage altogether inexpedient. To them in private our Lord intimated that exceptions were possible : " All men cannot receive this saying, but they to whom it is given ... He that is able to receive it, let him receive it." There were some to whom the rigour of the law would not apply, and, as we have seen above,' one of the evangelists has inserted a reference to the excep- tional case of fornication. The Christian Church has reluctantly used the liberty thus accorded, pronouncing divorce in the case of an un- faithful wife. The unfaithful husband, though the sin of 1 St. Matthew xix. ii. * Supra, p. 24. M.C.S. H 98 OF MARRIAGE IN HUMAN LAW adultery is no less in him that in the woman, does not do his wife the wrong of imposing on her a spurious offspring, and his offence has not as a rule been considered sufficient ground for divorce unless it be accompanied by aggravating circumstances. But these circumstances have thus been recognized as further grounds for divorce, and have in their turn been accepted as sufficient in themselves. The prac- tice in different parts of the Church is not uniform, but it may be said generally that any conduct of husband or wife making cohabitation intolerable, and frustrating the true ends of marriage, is considered sufficient ground for the exercise of the dispensing power, in the form of a judgment of divorce. Theologians commonly reduce these causes to the three heads of adultery, apostasy, and grave peril to soul or body. The greater laxity of the civil laws of some modern states, allowing divorce for light causes of disagreement, or even by mutual consent, do serious wrong to the natural law ; the power of dispensation inherent in human society is not to be denied even here, but it is a grave question whether a Christian can hold himself free to take a liberty thus accorded. Yet separation by mutual consent is allowed by the Church in certain cases. St. Paul's rule, that the married may withdraw from one another for a time to give themselves to prayer, has been extended to cover the life- long separation of a husband and wife devoting themselves to religion. Short of divorce the strictness of the unity of marriage may be relaxed by a modification of the common life re- quired by natural law. It may be reduced in the two par- ticulars of property and of social standing. An abatement of community of goods is effected by the custom of dowry, by the English use of marriage settle- ments under the law of trusts, or by such special legislation LIMITATIONS OF COMMON LIFE 99 as the Married Women's Property Act. More general regu- lations are usual in modern states. The Federal Code of Switzerland recognizes three dispositions of property be- tween husband and wife, one of which must be adopted by the parties contracting marriage. It is not easy to deter- mine when such laws pass the bounds of legitimate dispen- sation, and become direct contradiction of the natural order. They may easily destroy, in those subject to their influence, the sense of mutual dependence and support without which the good of marriage cannot be realized. They do not, however, necessarily prevent the complete fulfilment of the natural law by the voluntary action, joint and several, of the parties to a marriage, who may never- theless hold themselves free in conscience to take advan- tage of them in the case of necessity. An abatement of social standing is expressly allowed in the case of morganatic marriage, or Eh& zur linken Hand, once fairly general but now peculiar to the princely houses of Germany. Such marriage is valid and complete in all respects, save that the wife, being herself of inferior birth, does not share the rank of her husband or property attaching to his rank. Similar in effect is the union known to theo- logians as matrimonium conscientiae, which is not clandes- tine in the sense of lacking the elements of publicity strictly required by law, but is secret in the sense of not being openly acknowledged or of public repute, so that it does not carry any of the social consequences attaching to a lawful mar- riage. By the constitution Satis vobis of Benedict XIV mar- riages of this kind were definitely regulated for the Churches subject to the papacy; but the recognition of such an arrangement goes back to the beginnings of Christianity, and is illustrated by those marriages of noble women with slaves, for allowing whieh Callistus of Rome was attacked by Hippolytus. 100 OF MARRIAGE IN HUMAN LAW These various dispensatory laws may be approved in principle, there being no precise limits to the power exer- cised by any lawful authority in adjudging on cases of neces- sity ; but in practice many of them will be found to be unreasonable and harmful to public morals. The Church itself has not an unblemished record in this respect. The majesty of the natural order has been impaired ; willing- ness to endure the occasional hardships incidental to all strict observance of rule has been weakened ; an ever extending laxity has shown how the practice of dispensa- tion may eat out the heart of law. There is needed now, no less than at the first preaching of the Gospel, a return to the severity of the divine institution. If we now turn to the other purpose of these contingent dispensations, we shall observe that the impediments of the natural law are hardly, if at all, subject to interference. Physical incapacity for marriage obviously cannot be re- moved by any exercise of authority. A contract between persons of inadequate age cannot set up a true marriage, but the formal contracting might be allowed, and has been allowed, with a view to renewal or completion when the parties become competent ; and such a contract will cer- tainly have whatever binding effect may be given to it by positive law. Insufficient consent is an irremediable cause of nullity, and no authorization of a pretended contract under conditions of force or fraud could have real effect ; nor is sanatio in radice possible where there was no inten- tion to marry. The impediments of previous marriage, however, and of consanguinity or affinity, are in a different case, for marriage, though forbidden, is not here naturally impossible." Can a dispensation remove the prohibition ? If the natural bar of consanguinity be effective only in the ascending and descending line, it may well be doubted whether any authority could justify a departure from the DISPENSATION FOR CONSANGUINITY loi rule, a necessity of any kind being almost inconceivable. Unbridled lust has broken through even these barriers, but the common sense of mankind is unanimous in shrinking with horror from such incest. The corresponding bar of affinity is almost as impregnable in human experience ; the effrontery of Absalom and the counsel of Achitophel exhibit a practice familiar in the record of Asiatic monarchies, but St. Paul's strong language testifies to the abhorrence with which such unions were regarded even in the most corrupt regions of Hellenic life.' In the doubtful case of marriage with a sister being equally contrary to divine law, there are many instances of dispensation, from Abraham downwards ; but the Church has never granted one, and modern civilization shows no signs of breaking away in this respect from Christian tradition. The impedi- ment of affinity in the same degree was long regarded in Christendom as equally immovable. Alexander VI is said to have been the first Pope who ventured on a dispensation, and this was justified by the growing conviction that the impediment was only de iure ecclesiastico. The contrary contention of Henry VIII of England, though fortified by appeals to the older practice and theory, was only a des- perate device for establishing the nullity of his marriage with Katharine of Aragon. The surest ground is taken if we are content to say that the marriage of persons con- nected in the direct line is forbidden by natural law, and that no dispensation is possible, other impediments of this kind being referred to human law. But since there is a doubt whether some of these also be not founded in the divine law, the Church may well discountenance dispensa- tion in such cases, and forbid Christians to act upon it, by whatever authority granted. The prohibition of polygamy sets up the impediment of 1 I Cor. V. I. I02 OF MARRIAGE IN HUMAN LAW previously existing marriage, or impedimentum Ugaminis. Being already married, a man or woman may not take another consort. Polygamy is either simultaneous or suc- cessive. The strong feeling of the Christian Church against second marriages has caused the marriage of a widower or widow to be called successive bigamy, but the words are here used in the more natural sense of a marriage contracted while one of the parties has a husband or wife still living and separated by divorce. The two kinds of polygamy are both alike infractions of the divine law, but they are not on exactly the same footing. Simultaneous polygamy has been allowed in many sys- tems of law, but has never obtained a recognized standing in Christendom. To make it normal is to run so directly counter to the natural law that doubts have been enter- tained whether in that case true marriage subsists at all. An English Court of Justice has held that an Englishman contracting marriage with a Kaffir woman in South Africa, according to the rites and customs of her tribe, must have intended a polygamous union, and the marriage was on that ground annulled. But the common sense of mankind is against this judgment, and the Church has usually recog- nized the first wife of a polygamist as validly married to him, while demanding his separation from the rest as a con- dition of baptism.* There are those who contend that polygamy may be allowed, if not for Christians, stiU for others who have not the same succours of grace, on the ground of a moral necessity. It was for this cause that Luther and Melanchthon, alone among Christian teachers, permitted Philip of Hesse to take a second wife ; their action, kept as secret as possible, purported to be a dispen- ^ There are two alternative practices. One is to allow the hus- band to retain any one of his wives. The other is to invalidate all the marriages as essentially polygamous. DISPENSATION FOR POLYGAMY 103 sation in foro conscientiae. St. Augustine pleaded for the patriarchs of the Old Testament a pure desire to fulfil the divine purpose by engendering the promised Seed, and seems to have held them on this ground implicitly dispensed and allowed to multiply wives. Henry VIII of England is said to have sought from Rome a similar dispensation with a view to begetting an heir male for the public good. But in every case the plea of necessity appears to break down ; where it is urged with the greatest appearance of reason, for lusty peoples of imperfect civilization,^ it leads to inevi- table injustice, since the privilege of the rich and powerful positively diminishes the opportunities of marriage for the rest. The conclusion seems to be imperative, that dispen- sations for simultaneous polygamy, though given de facto, are naturally invahd, as being neither just nor necessary. A marriage founded on such dispensation is not therefore to be reckoned true marriage. Successive polygamy is less odious. A husband and wife being legitimately divorced, most of the reasons urged against polygamy have little or no force to hinder either of them from taking a fresh partner. It is not therefore sur- prising that many systems of law allow the maririage of the divorced. Is this permissible on the plea of necessity ? A law which purports to effect the absolute dissolution of the marriage bond must be unconditionally condemned. It is not so much an infraction of the divine law as an impotent pretence, an attempt to alter a fact of nature, and a denial of the existence of that which exists. It may be compared with a law which should purport to destroy the kinship of a brother and a sister, of a parent and a child. But a law permitting the marriage of the divorced, even if it be falsely conceived in this sense by the legislature, 1 As by Mr. E. D. Morel in his Nigeria, its Peoples and its Problems. 104 OF MARRIAGE IN HUMAN LAW may be regarded from another point of view. It may be taken as dispensing with the impediment of ligamen, and so allowing a modified polygamy. Is this permissible ? We must weigh the fact that such dispensations are granted, not only in communities which permit simultaneous polygamy and therefore cannot forbid this less odious kind, but also in the Christian Church. The Eastern Churches have for some centuries allowed certain divorced persons to marry. The practice has been severely blamed by Western authorities, but perhaps on mistaken grounds ; it does not imply, as seems to have been thought at the Council of Trent, that the bond of marriage is dissolved.^ If that were the case, both parties would ipso facto be free tq marry. But what usually happens is that permission to marry is grudgingly accorded to one party and withheld from the other. This can hardly be construed into anything but a dispensation, allowing marriage in spite of the impediment set up by the still subsisting bond.* It is then a dispensation for a kind of polygamy ; a serious breach made in the law of nature, but not a denial of natural facts, or a falsification of the real nature of marriage. A benevolent interpretation may bring within the same category the private Acts of Parhament enabling divorced persons to marry, which formerly dispensed with the general law for England, and 1 Pallavicino, Istofia del Cone, di Trento, lib. xxii, cap. 4, explains how the Council, at the instance of the Republic of Venice, abstained from anathematizing those who taught that marriage is dis- solved by adultery, and this to avoid offending the Greeks in the Venetian islands. 2 This is clearly stated by Milasch, Das Kirchenrecht der Morgen- Idndischen Kirche, p. 598. Treating the impediment of existing marriage as absolute, he adds : " Eine Ausnahme hiervon ist nur dann zulassig, wenn die bestehende Ehe aus einem gesetzhchen Grunde getrennt wurde, und dem betreffenden Ehegatten von der kompetenten Obrigkeit das Recht eingeraiimt wurde, eine zweite Ehe zu schhessen." See below, p. 127. DISPENSATION FOR POLYGAMY 105 are still in use for Ireland. A law, however, expressly purporting to dissolve the union of the married as radically as when it has been adjudged invalid ab initio, even if the dissolution be decreed at the discretion of a judge as a relief to one party, can hardly be so interpreted. It is nothing else but an assertion that by a legal fiction a natural relation has ceased to exist ; in other words, a natural fact is not to be regarded as fact. A law Uke that of some American States, which purports to dissolve a marriage on the ground of adultery but forbids the adulterous party to contract a new marriage, is with difiiculty reduced to any logical sequence. The adulterer is declared to be unmarried, but his previous adultery seems to be made a diriment impedi- ment disabling him from marriage. It is impossible, in this connexion, to overlook a fantastic theory, propounded by some loose thinkers, that adultery ipso facto dissolves the bond of marriage. On this showing a husband or wife might cease to be married, without knowing it, through the secret sin of the other party ; and either party could dis- solve a marriage at pleasure by a dehberate act of unfaith- fulness. It is sufficient to say that no system of law tolerates such an absurdity. The English law of divorce, though widely departing from the natural order, is even more in conflict with this theory ; for the adultery of both parties, which should be more effective as a dissolvent than the adultery of one, may even prevent the issue of a decree of dissolution. What is professedly a dissolution of marriage may thus in some cases be interpreted in a sense less contrarient to the nature of things, and taken as a permission to marry in spite of the impediment set up by ah existing marriage. In face of the practice of a large part of the Church, the legitimacy of such dispensation can hardly be contested, and the nature of human authority compels the admission io6 OF MARRIAGE IN HUMAN LAW that what the Church can do in such a matter can be done also by the State. But it seems clear that either power may forbid its subjects to act on such a dispensation given by the other power. There is not the same duty of mutual recognition as in the case of the creation of impediments, for this dispensation is nothing else but the recognition of a necessity, which may be contested on the ground of better knowledge. A man may know in his own conscience that a dispensation accorded him is bad, because not just and necessary ; an authority which lawfully controls his social actions may equally decide that he is not free to accept the Ucence allowed him by an authority concurrent. It will be observed that dispensation has here been spoken of throughout in a sense including far more than the specific graces issued to individual persons under that name within the hmits of various legal systems. In principle it seems right to group together all the modes in which a human authority can derogate either from its own laws, or from the obligation of other laws, and even of divine law. The possibihty of such derogation cannot be denied ; its legi- timacy may sometimes be in dispute ; it is in all cases a dangerous interference, j Frequent dispensation destroys the credit of law, and is tolerable only when a rigorous enforcement would for a time provoke worse disorder. Complete abrogation of a law, where that is possible, may sometimes be preferable. Where law must be maintained — and the natural law cannot be annulled — the plea of necessity justifies any relaxation ; but this needs the most careful watching, lest there grow out of easiness a general habit of disobedience. In these ways human law may reasonably vary from the divine law of marriage ; by the addition of supplementary obMgations, by a refusal to enforce natural obligations, by creating impediments obstructive or diriment, and by dis- NEED OF CAUTION 107 pensing in case of necessity. The rights of human society are not to be denied, but it is well to insist on a cautious and temperate exercise of them. To multiply either obligations op impediments is to multiply occasions for dispensation ; a free and frequent use of the dispensing power in this field makes for ease and laxity in dispensing with natural law. The best marriage law for any com- munity is one which adds as little as possible to the require- ments of the divine law, and so affords the least possible foothold for dispensation. CHAPTER IV Of Marriage in Canon Law THE Christian Church began, as we have seen, with an effective social organization, which involved the ordering of marriage, as of other incidents of social life. The contention of Rudolf Sohm has been sufi&ciently criticized by Harnack. According to Sohm, the essence of the Gospel lay only in the promulgation of an ethic and rehgious ideal ; the Christian hfe was an effort to reaUze that ideal, which inevitably drew the disciples into social relations and gave birth to the Church ; but the ministry and government of the Church was purely prophetic or charismatic ; the subsequent development of a legal order and of an authority conveyed by succession was a corrup- tion. There is an element of truth in this presentment. The first preaching of the Gospel was in this kind, but as a prophetic movement it aimed at a revivication and spirituali- zation of a compact social order already existing in the Jewish system, and the whole nation with the Diaspora was invited to participate. In that system prophetic and legal elements were combined ; the preaching of the Gospel was a revival of prophecy, taking the form of a strenu- ous and uncompromising assertion of the divine purpose animating the natural order and dominating the legal order ; but both the natural order and the legal order were assumed, and their continuance was postulated. Eschatological fervour might diminish the importance attributed to either, IM PROPHET AND LEGISLATOR 109 but both were to go on at least until the proximate end of the dispensation. The legal system was on the one hand to be fulfilled with a new content, and on the other hai^d it was to be reformed ; it was not to be destroyed. " I came not to destroy, but to fulfil," is one of the characteristic sa3dngs of the Gospel. It is true, therefore, that Christianity was at first a charismatic movement of reform within the Jewish system. But it soon became evident that the old prophetic doctrine of the Remnant was once more to be exemplified. As soon as the disciples began to call themselves the Ecclesia they showed a dawning consciousness of this fact, nor can there be much doubt that this use of the word had already been adumbrated in the more intimate teaching of the Lord.^ As this consciousness of being alone the faithful remnant of the true Israel grew upon them, they seem to have gradu- ally perfected an organization carried over in its main hues from that which had cast them out, but fulfilled with new ideas. The prophetic and the legal elements were con- trasted, as always, but they were not in open conflict. St. Paul insisted, perhaps more strenuously than any other teacher, on the liberty of the Spirit, but he was also forward in promulgating canons of discipline for the faithfiil. The two elements were combined in his teaching, with no care for artistic symmetry. In regard to marriage, as in regard to other matters, he at once proclaimed as prophet the Divine Law, and as legislator gave his own commandments. 1 The word in Matt. xvi. 18, xviii. 17, even apart from the ques- tion of the language used by our Lord and of its equivalent in Aramaic, might well be due to a casting back of later ideas, but Hort is certainly right when he says that " the application of the term cKKXiyo-ia by the Apostles is much easier to understand if it was founded on an impressive saying of our Lord." — The Christian Ecclesia, p. 9. no OF MARRIAGE IN CANON LAW That was the beginning of the Canon Law of the Church, and its development has followed in order. It combines divine law and human law, distinguishing them clearly in principle, but without curiously determining the hne of division. Some consequent uncertainty has left room for disputation, and that is at some times and in some places insisted on as divine law which has elsewhere and at other times been treated as hvunan law subject to absolute dis- pensation or abrogation. The practical importance of the Canon Law of marriage is increased by the fact that for some centuries it became not merely the rule of conduct for Christians as such, but also the almost exclusive regulation of marriage and of its incidents through the whole extent of Christendom. It was thus concerned with matters of secular import, such as dowry and the legitimacy of offspring. This state of things passed away, but some effects survived. The laws of marriage in modem European states, however much they may differ from the law of the Church, are derived from it and retain some of its characteristics. On the other hand, the Canon Law itself was affected by these alien functions ; it was the care of marriage, above all else, which brought upon it the juridical stiffness and complexity of its later developments, and at the same time drove it to expedients for accommodation to the supposed necessities of human society. If the Canon law were essentially what it became after the twelfth century, there would be more force in the strictures of Rudolf Sohm. Yet even the worst of these developments were not out of keeping with its origins. It issued as a new birth from the Judaic law, which in all its branches, and not in one only, was the whole of law for those living under it ; and here also are found the same faults of legal hardness and moral accommodation. The Gospel was a protest against CHRISTIANITY AND ROMAN LAW iii both, and the circumstances of the formation and expansion of the Church kept them for some time at a distance. Chris- tians had no organization recognized by the law either of the Roman Empire or of any of its component parts. The rules of Christian conduct, therefore, could not have legal effect in externals ; for the ordinary purposes of civil order, the faithful were subject to various laws of marriage, from which they made no attempt to withdraw themselves except so far as obedience might be inconsistent with the moral teaching of the Gospel. Some mart57rdoms were due to this difficulty, but as a rule the precepts of the Church concerning marriage did but supplement the existing law. When CaUistus of Rome in the interest of moraHty allowed what was illegal, his action was contested, as we have seen, even by some Christians.'- When Christianity was made a lawful reUgion of the Empire, and stiU more when it became the official cult, attempts were made, with less success than might have been expected, to bring the law into har- mony with the teaching and practice of the Church ; but even the legislation of Justinian, for all his professions of Christian principle, was far from achieving this end. The Canon Law of marriage thus remained distinct from the imperial law, which it eventually ousted, the entire control of the relations of husband and wife passing into the hands of the hierarchy. In the East, this change was not eflEected without serious modffications of Christian practice ; in the West, the rules of the Church remained intact precisely because their acceptance as formal law was longer delayed ; when they finally prevailed over the laws alike of the Empire and of the new Germanic Kingdoms, the hierarchy imder the leadership of the Pope had won so dominant a position that they could be enforced in aU their rigour, and whatever laxity ensued came only from internal causes. 1 Supra, p. 73. 112 OF MARRIAGE IN CANON LAW I shall briefly trace the origin and progress of the Canon Law of marriage, endeavouring to distinguish those parts of it which are concerned with the maintenance of the divine law and of Christian standards of conduct from those in which it has played the same part as any other legal system, thus preparing the way for the jurisprudence of the modern State." Existing within the Jewish nation, from which it was slowly detached, and carrying on expressly the religious traditions of that nation, the Church was concerned with marriage in the first instance as it stood in the Jewish law. Of this there were two clearly marked divisions : the written law, known as Mosaic, and the traditional judgments of the Soferim, which were afterwards collected in the Talmud and digested by the Rabbinical schools. The Soferim, however, were as much concerned with the interpretation and with the casuistic apphcation of the Mosaic statutes as with their own traditions, and the divisions of the law were thus Unked in one. The contractual nature of marriage was fully recognized in this law, though it contained many relics of an economy in which the wife was hardly distinguished from a slave, but it was no less clearly understood that a natural and sacred relation between the parties was set up by the fulfil- ment of the contract. " The act of contracting marriage," says a competent writer, " is termed Kiddusjvin, since by this act the wife is set apart for her husband, and rendered inviolable and inapproachable in respect of any other man." ^ But the contract was not equal, since polygamy was allowed on the man's side ; it seems to have been Uttle practised after the Exile, and was perhaps almost unknown at the time of the Gospel, but it remained lawful until formally 1 Mielziner, The Jewish Law of Marriage and Divorci, p. 27. THE JEWISH LAW 113 forbidden by the Rabbinical Synod of Worms under Gershom ben Juda in the eleventh century. Moreover, the state of marriage was held to be entirely dissoluble by a guarded act of the husband expressed in a bill of divorcement. The mode of contracting was not provided for in the Mosaic code, but was prescribed with some fulness in Rabbi- nical law. A mere verbal consent was not held sufficient ; there must be an act, attended with considerable pubUcity. The act, indeed, was twofold ; for espousals and nuptials were both required, with an interval of not less than thirty days in the case of a widow, of a whole year in the case of a virgin.! fhe espousal was not merely a promise of marriage, or consent de futuro ; it was a real initiation of marriage, involved the unfaithful in the guilt of adultery, and could be dissolved only by death or divorce. The formahty required was either a gift of money, with the words, " Be thou consecrated to me," or a written instru- ment {Shetar) conceived in hke terms.^ The presence of witnesses was essential, and according to the ritual law the betrothal was to be blessed with prayer. Of the nuptials which followed, the essential act was the conveyance of the bride from her own home to that of the bridegroom, or to a place representing his home, where she was received in the presence of at least ten neighbours, and was blessed either by the bridegroom himself or by one of the witnesses. The blessings, however, do not seem to have been regarded as essential for a vahd union. Marriage was guarded by impediments obstructive or diriment, some of which were Mosaic, some Rabbinical. Impediments of consanguinity and affinity are found in both divisions. Those actually mentioned in the Mosaic books were held to make an union incestuous, and void from ! The bearing of this upon Matt. i. 18 and Luke ii. 27 is obvious. * Cf. Tobit vii. 14. M.C.S. I 114 OF MARRIAGE IN CANON LAW the beginning. Those added by the Soferim, whether by logical inference or for the purpose of safeguarding the law, were less peremptory in effect ; espousals contracted in spite of them might be cancelled, but a consummated marriage must be dissolved by a bill of divorcement. The mode of reckoning kinship was not settled until a later period. " There was no bar," it has been said, " to union with close relatives on the father's side, and even down to the Babylonian exile such unions appear to have been common." ^ It is noteworthy that, while aunt and nephew were forbidden to intermarry, on the ground that an almost maternal kinswoman could not render wifely obedience, the marriage of uncle and niece was even commended." The curious law of the levirate broke in upon the impedi- ment of affinity for the express purpose of preserving in- heritances. It died out ; the originally dishonourable procedure of Halizah, by which the obligation was evaded,* came into general use, for it was considered doubtful, says Mielziner, " whether he who marries his brother's widow with other than the purest motives is not actually com- mitting incest." * Of other impediments, the prohibition of intermarriage with Gentiles was most important. In the oldest law the Seven Nations of Canaan seem to have been excluded ; Ezra and Nehemiah extended the prohibition to aU neigh- bouring tribes, the Maccabean priesthood made it appUcable to the whole Gentile world. Espousals and nuptials were forbidden on Sabbaths, on festivals, and for several days following the Passover, but a breach of this rule did not invaUdate marriage. It is remarkable that impotence, if due to natural causes, was no impediment, though the * Jewish Encyclopadia, viii. 336. » Mielziner, p. 39. » Ruth iv. 7 ; Deut. xxv. 7-10- * Op. eit. p. 57. DIVORCE IN JEWISH LAW 115 sterility of a wife after ten years was a ground for divorce. Neither did the lack of free consent on the man's part invalidate the marriage contract, since he could have his remedy in divorce ; but a marriage might be set aside if the bride could be shown to have acted under compulsion. In spite of this, a father could lawfully give his daughter in marriage even before the age of puberty, and the practice seems to have been not uncommon.^ Divorce was a privilege of the husband. According to the Mosaic rule, he could dismiss a wife on the ground of dishke, but only if he were able to allege some " unclean- ness," or grave unseemhness, as the cause of disfavour." To prevent hasty action the law required him to give her a Bill of Divorcement, which was her full discharge, enabUng her to marry another man. The husband himself, in view of the permission of polygamy, required no such discharge. The schools of Shammai and Hillel hotly disputed the meaning of the uncleanness which would justify divorce. Shammai admitted only the case of moral delinquency or unchaste demeanour ; Hillel allowed the husband to act on the ground of anything offensive or displeasing to himself. MoraUy, the opinion of Shammai secured the suffrages of pious Jews ; but legally, the judgment of Hillel prevailed. The law, whether written or traditional, was theocratic. This was both its strength and its weakness. On whatever ancient customs and institutions it had been founded, all was brought to the test of high prophetic inspiration. The wisdom and the prejudices accumulated during centuries of administration were thus purified, and reduced to an order in which the faith of Israel could see nothing less than perfection. God spoke in the law. " The Lord said unto * There is a reflection of it in i Cor. vii. 36. ^ De»t. xxiv. 1-2. ii6 OF MARRIAGE IN CANON LAW Moses," was the formula by which even trivial regulations were introduced. The judgments of the Soferim them- selves were not so much decisions newly made as determina- tions of the Divine WiU, and the most transitory provisions for the ordering of human hfe were regarded in specie aeternitatis. Political expedients were confounded with moral principles ; wise precautions against the absorption of the People of God into surrounding heathendom were translated into fundamental laws of marriage, and, worst of all, accommodations to human imperfection were treated as express commandments of God. The preaching of the Gospel was inevitably a challenge addressed to this hetero- geneous mass of legislation, as was shown in our Lord's treatment of the Sabbath, and what He did there He did also in regard to the law of marriage. He did not deny the authority of the constituted judges of the people ; they sat in Moses' seat, and their judgments were to be respected ; but the whole system was to be reformed by a reference to eternal laws. Confronted with the teaching of Hillel, our Lord condemned as lax even the stricter opinion of Shammai, and this by virtue of a reference to the original and natural institution of marriage.^ In setting aside the Deuteronomic law of divorce as a mere accommodation to the hardness of men's hearts. He drew a definite distinction between the Divine Law and the Mosaic Law, referring the one to creative Will as seen in the order of nature, and reducing the other to its proper place among the authoritative ordinances of human society. So reduced, and reformed in accordance with the preaching of the Gospel and with the intimations of God's Holy Spirit, the Jewish law passed into the possession of the Christian Church. Some changes are obvious. Divorce, if allowed at all, I Matt. xix. 3-9, V. 31-2, axid parallel passages. THE ORIGINAL CHRISTIAN LAW 117 was severely restrained ; marriage seems to have been strictly forbidden to the separated parties while both were living, the natural indissolubility of the bond being thus rather implied than defined ; the prohibition of marriage with aliens became an injunction not to intermarry with unbelievers. The only clear information that we have on these matters in the first age of Christianity is contained in some brief passages of the canonical Gospels, in one important chapter of St. Paul's first Epistle to the Corin- thians, and in some casual remarks elsewhere made by the Apostle. It is impossible to construct a complete scheme of what was required or disallowed in Christians. Indeed, it may be inaccurate to say that any such scheme existed. Expositions of the Divine Law were doubtless given as needed, and questions about what was seemly were answered by the Apostles, jointly or severally, as they were asked. We see St. Paul so answering the Corinthians, and we may infer that the practice was general. It is possible that the express prohibition of fornication by the Apostles and Presbyters at Jerusalem ^ was a decree requiring married men to abstain from that intercourse with unmarried women which the Greek conscience freely allowed, thus making the offence of adultery identical in husband and wife. What stands out perfectly clear is the fact that rules were thus made ; that is to say, that there was an incipient Canon Law of marriage, enforced by the discipline of the Church. From the age immediately succeeding that of the Apostles there survives one clear indication of such disciphnary control. " It is proper," writes St. Ignatius, " for those intermarrying to effect their union under the direction of the bishop, that their marriage may be after the Lord and not after their own lust." * Nothing could ' Acts XV. 29. * Ad Polycarpum, 5. Trpemi Se TOiSiya/Aowi koI tois ya/xovfiivaK ii8 OF MARRIAGE IN CANON LAW be less like the imposing structure of the later ecclesiastical law of marriage than this personal and pastoral control, and yet all is potentially contained herein. The rule of Christian conduct is customary, though some precepts are already written, and the bishop is supposed to have it in pectore ; the development of a code is inevitable. But the Christian rule did not purport to set aside public law, or to be a substitute for it. The apologists were clear on this head. They were constantly repelling the vague accusations of immoraUty to which Christians were subject. Athenagoras acknowledged the observance of a special law, saying that a Christian recognized as wife only such an one as he had married " in accordance with the laws enacted by ourselves," but in the Epistle to Diognetus it is emphati- cally alleged that Christians domiciled in Greek or barbarian communities adhered to the institutions of their neighbours, as in other matters of daily life, so also in respect of marriage. That the control of marriage by the Church was properly an exercise of penitential discipline is clear from the refer- ences to it in Hermas.^ The practice of dispensation, however, was not long delayed, being applied alike to the Divine Law, to ecclesias- tical rules, and to the prescriptions of civil law. Origen, though condemning such laxity, recognizes the fact that some bishops in his time would allow a divorced husband or wife to marry while the separated party was still living ; not entirely without cause, he confesses, in spite of the express prohibition of Scripture, if regard be paid to the fjiero, yvwfJLrii rov eTricrKOTrov Trjv evoxriv voieiaOai, iva o ya/ios jj Kara Kvpiov Ktti fi^ KWT iTTiOvfjuiav. There is probably no reference to I Cor. vii. 39, koto Kvpiov being wider than iv Kvpi'o), and covering obedience to all Christian teaching. 1 Athenag. : Leg. pro Christianis, 33 ; ffv ^yayero Kara, tobs i<^' \mv Tfddu.ivov's vofiovi- Epist. ad Diog., 5. Hermas, Mand. iv. THE ORIGINAL CHRISTIAN LAW 119 infirmity of men not endowed with the grace of continence, and the worse evils that a strict observance of the law might engender. 1 The principle underlying the practice of dis- pensation is here laid down with the utmost precision, and the existing practice of the Eastern Church is anticipated. Dispensation from ecclesiastical rule is obscurely indicated by TertuUian, with the expression of distaste that might be expected of his unbending mind, in the case of some Christian women who had married unbelievers ; he does not know whether to put this down to their own wayward- ness or to the double dealing of their advisers.'' Dispensa- tion from the requirements of civil law, enabling Christians to disregard them with a good conscience, is found in the debated action of CaUistus, who allowed Christian women of high rank to intermarry with slaves.' It is significant that objection was taken to aU such dispensations. They mark the gradual change of the moral teaching of the Church into a system of law, which must take account of excep- tions as well as of principles. There is indeed, even in the canons of certain councils held in the early part of the fourth century, a noteworthy tenderness in dealing with some breaches of the Christian law. The ninth canon of lUiberris aUows a woman who has left an adulterous husband, and married another, to be restored to Communion after the death of her true husband, or even sooner in case of necessity, apparently without requiring her to break with her new partner. The sixteenth canon imposes a penance of five ^ Orig. Comment, in Matt., torn. xiv. 23. * Tertull. Ad Uxorem. ii. 2. " Miratus aut ipsarum petulantiam aut consiliariorum praevaricationen." The word praevaricatio seems to be used in its proper forensic sense, in which case the harsh and impetuous writer brings against the consiliarii, who can hardly be other than the ecclesiastical authorities, the odious charge of acting in collusion with the unbelieving pa,rty. * Supra, p. 73, 120 OF MARRIAGE IN CANOR LAW years on those giving a daughter in marriage to a Jew or heretic, but says nothing about separation of the parties. In a Uke case the eleventh canon of Aries imposes on women so married only a brief exclusion from Communion, " ut ahquanto tempore a communione separentur." The tenth canon of the same council is even more remarkable. " De his qui coniuges suas in adulterio deprehendunt," it says, " et eidem sunt adulescentes fideles et prohibentur nubere, placuit ut inquantum possit consihum eis detur, ne viven- tibus uxoribus suis licet adulteris ahas accipiant." It is recorded that a man who has detected his wife in adultery is forbidden by the Church to use the liberty of divorce and remarriage allowed him by the civil law, but no censure or penance is imposed on one who, under the excuse of youth, violates this prohibition ; he is only to be advised in the strongest possible terms to obey. This interpretation can be escaped only by a rendering which would refer the words alias accipiant to a concubine and not to a legal wife ; it wiU then foUow that the council, while absolutely for- bidding marriage to the divorced, reluctantly tolerates con- cubinage. Hefele, not observing the possibility of this rendering, sees in the canon a concession to the standard of morality set up by the civil law. When the Empire became Christian, the civil law of mar- riage was gradually modified in a Christian sense. The process was slow, and was never completed, but there was in the Church an inevitable tendency to acquiesce, and still further to abate the severity both of witness to the natural law as clarified by revelation, and of insistence on the sacred canons. It must not be supposed, however, that the Chris- tian rule was even approximately identified with the im- perial law. Failure to observe the distinction vitiates much of the industrious learning which Bingham devoted to this subject ; he constantly confuses the legislation of the Theo- THE CHRISTIAN EMPIRE 121 dosian emperors with the contemporary canons of the Church. The real divergence was sufficiently recognized ; conscious- ness of it appears in a canon of unknown source and date, erroneously ascribed to the Council held at Mileve in the year 416, which demanded an imperial law in support of the rule of the Church forbidding marriage after divorce. * The burden of sustaining this rule in face of an unsympa- thetic law, nominally Christian, was evidently oppressive. Some years earlier the First Council of Toledo regulated the standing of a concubine, but only as a matter of Chris- tian disciphne, and on the same ground required a conse- crated virgin who had contracted marriage to separate from her husband, without calling in question the vahdity of the marriage. But about the same time we find Innocent of Rome going a step farther. In a decretal letter he claimed the right to determine a case of marriage, in which grave injustice would be done " nisi sancta rehgionis statuta pro- viderent." A wife having been carried off by invading barbarians, her husband married another, as allowed by law ; on her return from captivity the Pope ruled that her husband was stiU bound to her, and must separate from the other partner whom he had taken.* To do this was to set the authority of the Church in direct conflict with the Civil Law, and that not merely by way of dispensation, as in the case of CaUistus. Here is an order to do a specific thing. These instances, chosen out of many, show three distinct hues of action in the Church : the restriction of ecclesiastical rule to a purely spiritual discipline ; an attempt to bring the imperial law into agreement with Christian teaching ; * 1 Cone. Milev, can. 17. " In qua causa legem imperialem pe- tendam promulgari." « Innocent I. Ep. ix. ad Probum. 3 In the legislation of Constantius and Theodosius the younger are instances of success in this line introducing into the Civil Law 122 OF MARRIAGE IN CANON LAW and a bolder attempt to regulate independently incidents of social order. All three activities have continued or have recurred in the history of the Church down to the present day. The decretal of Innocent I. points implicitly to the whole ecclesiastical jurisdiction concerning marriage, exer- cised throughout the West during the Middle Ages, and still exercised in some parts of the East ; the attempt to mould the civil law in accordance with Christian teaching has been resumed in modem England, while in other coun- tries the Church has in recent times accepted the function of a purely internal and spiritual control of its own members. Our present task is to examine the first of these develop- ments. For the orthodox Churches of the East, the Quinisext Council in Trullo, a.d., 692, is an important turning point, as in other matters of disciphne, so also in regard to mar- riage. It was now definitely ruled, contrary to a wide- spread practice of previous ages, that priests and deacons should not be debarred from the use of marriage, though they were forbidden to marry after ordination ; and deposi- tion was threatened, with a special reference to the Roman Church, in case any bishop should exact a promise of absten- tion. Bishops themselves, however, were forbidden to cohabit with their wives, who were required to retire to a monastery at some distance. Censures were provided for a priest who should bless unlawful nuptials, and the pre- tended union was to be dissolved. A monk attempting marriage was to be treated as a fornicator. A rule of spirit- ual kinship was estabUshed, by which a sponsor at baptism was forbidden to marry the mother of his god-child, the marriage being treated as void. In explicit extension of the impediment of collateral afSnity. Cod. Theod., iii. 12, Deincestis EASTERN CANON LAW las rules laid down by St. Basil the Great, marriages of uncle and niece, or of father and son with two sisters, and con- versely, were made unlawful, separation being enjoined. The prohibition of marriage with unbelievers was extended to the case of heretics, but the marriage of two unbelievers or of two heretics was to stand good after the conversion of one party, on the ground of St. Paul's saying that the unbelieving husband is sanctified by the wife. Attempted marriage after divorce was declared to be adultery, as also was marriage contracted after a long absence of husband or wife ; in this case actual proof of death was required to make marriage lawful, but some freedom was allowed to the wife of a soldier, whose death might be presumed ; should he return after her marriage to another man, he was left free to resume cohabitation with her or not, at his own plea- sure, and aU the parties were to be held free from blame. Espousals, no less than a completed marriage, were to bind imder peril of adultery, and a precontract was thus made a diriment impediment of marriage. The Roman Church rejected this council, and conse- quently, though several of its canons found their way into Western collections, its trenchant legislation about marriage became operative only in the East. The divergence of the two parts of the Church in matters of disciphne now became definite. I shall briefly note the development of the law of marriage in the East, and then return to the more com- plicated fortunes of the Western Church. The legislation of Justinian had shown how far Christian doctrine could affect the law of the Empire, and left this sufiiciently at variance with the canons of the Church. There were, therefore, two laws of marriage, perfectly distinct, and sometimes contradictory. There was no confusion of Church and State, though there was a close alliance, the Church being on the whole subservient. After the Quini- 124 OF MARRIAGE IN CANON LAW sext Council, however, the canonical rules about marriage were enforced with considerable strictness, and gradually became predominant, as regulating social action, over the Civil Law. In the year 893 the Emperor Leo the Philoso- pher, by his eighty-third Novel, enacted that a marriage blessed by the Church should alone rank as legitimate. In 1306 Andronicus the Elder, in conjunction with the Patri- arch Athanasius, forbade any contracting of marriage with- out the knowledge and intervention of the parish priest.* The Empire was now reduced within narrow bounds, but the influence of the Patriarch extended far, and in this way was estabhshed an ecclesiastical control of marriage which survived the faU of Constantinople, to become the fixed rule of the Ottoman Empire. Ecclesiastical marriage was henceforth the only kind of marriage recognized as valid by the State. The Canon Law thus administered was codified at an early date. In the Nomocanon of John the Scholastic, Patriarch of Constantinople from the year 565, all the known canons of Councils, with sentences of the Fathers then gener- ally taken as binding, were digested under fifty titles. Eastern Christendom being thus supplied with a systematic treatise of a kind for which the Westerns had yet to wait many centuries. Supplemented by new conciUar defini- tions, it was at length superseded in the year 883 by a new work in the same style, which became the definitive law- book of the Eastern Church. The text was for some time treated as sufficient, but in the course of the twelfth century it was enriched with elaborate commentaries by Zonaras, Alexius, Aristenus, and Balsamon. In the thirteenth century, Arsenius of Mount Athos, afterwards Patriarch of Constantinople, set out the whole legislation of the Church 1 Milasch, Kirchenrecht, p. 581. EASTERN CANON LAW 125 afresh in a Sjm.opsis of a hundred and forty-one chapters. About the same time was prepared a code, the Krmcaja Kniga, for the Slavonic Churches, which held an unchal- lenged position until Peter the Great forced on the Russian hierarchy some new legislation, affecting marriage as well as other incidents of the Christian Ufa, in which innovation passed for reform. The most striking feature of this codified system is the refusal to recognize as valid any marriage that is not con- tracted in complete accordance with law. Natural mar- riage by simple consent is not merely ignored, but strictly forbidden under pain of ecclesiastical censure ; a clandestine marriage is void. It is not any measure of publicity that will suffice ; the requirements are laid down with precision. The marriage must be blessed by the parish priest in the presence of two witnesses ; should the parties belong to different parishes, it is the priest of the bride's parish who must act, but he may delegate this function to another priest.* Some minor requirements of the law alone may be ne- glected without voiding the marriage. The Eastern Church has always been reluctant to distinguish between the legiti- macy and the validity of a sacrament, but the conception of obstructive impediments {KoiXvfiara aTroyopevTiKa), as dis- tinct from diriment {avarpeirnKa), crept in when the legal control of marriage fell to the ecclesiastical authorities. It should be observed, however, that even obstructive impedi- ments are held to suspend the effect of marriage until they be removed by dispensation, which can be obtained from any bishop, and which appears to have the effect of sanatio in radice. This strictness makes it the less remarkable that force or fear inducing marriage is treated as an obstructive impediment only, a fact which may be due to the stress ' Milasch, pp. 582, 595. 126 OF MARRIAGE IN CANON LAW laid on the nuptial benediction as compared with the con- sent of the parties. Consanguinity within the seventh degree is a diriment impediment in the Churches of the Patriarchates, but in the Kingdom of Greece it is reckoned only to the sixth de- gree, in Russia to the fourth. Affinity is reckoned strictly to the fifth degree, and partially to the seventh, the exten- sions made by the Quinisext being stiU in force, but only to the third degree ; the impediment of spiritual kinship, after undergoing some enlargement, has been brought back to the form in which it was recognized by the same council. Other diriment impediments are lack of mental capacity, impotence, the lack of parental consent where required, a religious vow of continence, the pregnancy of the bride under certain conditions, existing marriage, and a third widowhood. Marriage can be contracted in a first or second widowhood, but the parties are put to penance. Diriment impediments can be dispensed with by a General Council only, or by an equivalent authority, the Patriarchal Council at Constantinople, for example, or the Holy Govern- ing Synod of Russia. There seem to be no exceptions, and impediments are not distinguished as of divine or human law. It foUows that all dispensations ahke must be regarded as contingent, and conceded on the ground of necessity. Even the impediment of existing marriage is not absolutely irremovable, as is seen from the practice of the Church in case of divorce. Divorce itself, as we have seen, is in the nature of a dispensation from the natural law requiring community of Hfe in the married, and should be allowed only for the gravest reasons of necessity. The Eastern Churches were long disposed, as may be seen from the canons, so-caUed, of St. Basil, to follow the Jewish law, forbidding a man to continue marital cohabitation with an adulterous wife, but in the fourth century Christians had not all learnt DIVORCE IN THE EASTERN CHURCH 127 to treat as adultery the sin of a husband with an unmarried wohian, and his wife was not even allowed to leave him on that account. This inequaUty of treatment slowly and incompletely gave way. The Quinisext adjudged guilty of adultery the man who, after putting away his lawful wife, should marry another, but allowed some unspecified con- sideration for a husband deserted by his wife. It is pro- bable that a licence to take another wife was intended. An elder contemporary of the Council was Theodore of Tarsus, the Greek monk who organized the nascent Enghsh Church ; he did not forget his origin when he changed his tonsure, and his repUes to questions digested under the title of a Penitential are full of references to Basil the Great and other Eastern authorities ; in these we find permission to marry very freely accorded to a husband whose wife has left him with contempt, has been carried away captive, or has been put away for adultery, and even the adulterous wife might be allowed to take a new husband after five years of penance. These may have been concessions to a rude nation of neo- phytes, but they are not to be matched in other records of the West, and they were at least based on the practice of the Eastern Churches. When the legal regulation of mar- riage came into the hands of the hierarchy, divorce was much more severely restrained than under the Civil Law, but it was still allowed on various grounds, which have been much extended, especially in Russia, by more recent legisla- tion. There is no pretence of actually dissolving the marriage. The bond remains, and the parties are not set free to contract another marriage at pleasure ; but the ecclesiastical authority can give a Hcence to marry in spite of this impediment, and it seems to be granted pretty freely to those who ask.^ 1 Milasch, p. 598. See the pduag* quoted above, p. 104. 128 OF MARRIAGE IN CANON LAW Two things remain to be noted. Preliminary espousals {fjiv7)(jTela) are reckoned essential to a valid marriage. If not blessed, they are revocable ; if blessed, they so far par- take of the nature of marriage as to constitute, in accor- dance with the ruling of the Quinisext, a bar to any other union. These provisions, however, are now of small impor- tance, since the completion of the nuptials usually follows immediately upon espousal. Holy Orders, in spite of the strict rule forbidding those already ordained to marry, is not made an impediment ; marriage actually contracted by a priest or a deacon is not annulled, even provisionally, but the offender is deposed from the sacred ministry. Thus, from the seventh century, or longer, the Eastern Churches have enjoyed a fairly consistent canonical regula- tion of marriage, and from the ninth century have been invested, by a definite Act of State, with its legal control. Two causes have contributed to this result. The Catholic Church was for ages almost conterminous with the Empire, and the authorities of Church and State, in spite of fierce quarrels on occasion, lived together in mutual respect. The Church was sometimes dominant, as during the reign of the Palaeologi, sometimes unduly subservient ; but the two powers, the two organizations of human society, have never been confused. A modus vivendi was consequently arranged, which could survive the transfer of the Empire to a dynasty professedly unchristian ; the Church maintains relations with the Ottoman State differing but httle from those in which it stood towards the Christian Emperors, becomes the acknowledged organization of all orthodox Christians in the curious system of nationahties by which that State is administered, and enjoys the undisputed control of marriage in regard to its own members. This principle of close alli- ance was carried with the Church to Russia and other coun- LEGAL CONTROL BY EASTERN CHURCH 129 tries beyond the pale of the Empire, where it still subsists. Outside the Turkish dominions, the regulation of the purely civil aspects of marriage is left tuigrudgingly to the State, the regulation of marriage in its rehgious and sacramental aspect is left as unreservedly to the Church. The State, says the Bishop of Zara, may not treat as invahd a marriage recognized as vahd by the Church. ^ He is not speaking only of a State the head of which professes Orthodoxy, for he has in view his own position under the Austrian mon- archy ; the principle is universally apphed. In Russia, under the influence of the Church, it is extended to all reli- gions, orthodox Christians having secured for others the privileges which they claim for themselves ; marriage is treated throughout the empire as a rehgious institution imder the control of the various rehgious organizations. Christian, Jewish or Musuhnan, to which the people adhere. While the Eastern Churches thus perfected their system, the fortunes of the Church in the West were very different. The Empire was broken up, Christianity extended to the Northern nations before it was completely organized, and the rehgious control of hfe, in regard to marriage as in other respects, had to be worked out in a welter of confusion. Similar results were eventually attained, but after long delay, and with one most important difference. The Western Churches foimd in the coming of the bar- barians at once their trial and their opportunity. They were confronted not only with the venerable system of Roman law but also with customs and practices which had no such prestige. The ecclesiastical authorities could act more freely in face of Teutonic kings, wielding an irre- sistible power of the sword, than against the mere words of 1 Milasch, p. 582. " Der Staat kann eine von der Kirche als giltig anerkennte Ehe nicht als ungiltig betrachten." M.C.S. K t30 OF MARRIAGE IN CANON LAW a Roman Emperor who could barely defend himself amid the marshes of Ravenna ; Roman citizens of the provinces overnm by invaders could lean upon their traditionary juris- prudence and the edicts of their nominal sovran, but Goths and Franks, Burgundians and Lombards, when they came within the borders of Cathohc discipleship, were fain to accept the guidance of bishops and councils, or to resist with a growing consciousness of guilt. Resistance was general; the rude customs of the nations were not easily put aside, and some strange expedients of compromise were for a time tolerated by the Church. A new penitential system, based on the Germanic custom of penalties in money or money's worth, makes its appearance, replacing or complementing the method of spiritual censures ; the mulct is a full dis- charge, and there seems to be a vast extension of St. Augus- tine's principle, " Fieri non debuit, factum valet ; " but from the fifth to the eleventh century the steady persistence of the Church is making itself felt, and certain departments of human hfe are brought even externally under its control. Conspicuous among these is marriage. The work was chiefly done by the continual exercise of a rather indeterminate discipline, enforcing with more or less efficiency the unquestioned rules and customs of Chris- tianity. The records are obscure, appearing occasionally in the acts of martyred bishcq)S, which reflect the general state of society perhaps more accurately than the particular features of the cases described. Something may be gathered, however, from the genuine acts of councils, the greater authority of which was invoked when individual bishops were lax, or overborne by the self-will of kings and terri- torial magnates. We find the second Council of Orleans, in the year 536, not only renewing the prohibition of inter- marriage between a Christian and a Jew, but also peremp- torily ordering the separation of the parties so united. The WESTERN DISCIPLINE 131 Church was beginning to treat such a marriage as void in law ; in other words, the prohibition was becoming a diri- ment impediment. The same council had occasion to forbid the dissolution of marriage for some obscure cause, voluntatis contrarietate. Some years later, the third Council of Orleans allowed the continued cohabitation of parties who had con- tracted an incestuous marriage, if it could be shown that they had acted in ignorance, as neophytes, and not in con- tempt of the divine or ecclesiastical order. In the year 556, a council held at Paris renewed against the King Clothaire the prohibition of marriage with a sister-in-law, specially condemning an offender who " sacerdotem suum audire neglexerit," and forbade the practice of claiming a woman in marriage, by assignment of the King, without the consent of her parents. If the Popes seem to have had less to do with this work than might be expected, it should be remembered that after the middle of the sixth century they were held under strait control by the Emperors reigning in the East and their Exarchs at Ravenna. Great as was the veneration ex- pressed and felt for the Roman pontiff, he was for a long period rather a force in reserve than a dominant factor in the Ufe of the Church. St. Gregory the Great stands out alone from a hst of insignificant personahties, or worse, as having any conspicuous effect on the growth of institutions ; and of Gregory we have the letter addressed to Augustine of Canterbury in reply to his questions. Two of these con- cerned marriage. Augustine's question whether two brothers might marry two sisters indicates some lack of common in- formation, and the Pope's reply that it might be done since there was nothing in Holy Scripture against it, seems by impUcation to put the prohibitions that were current upon a basis other than that of ecclesiastical canon or custom. To another question regarding consanguinity and affinity, Gre- 132 OF MARRIAGE IN CANON LAW gory replied that the secular laws of the Roman State allowed marriages which the Church could not approve. The con- demnation of them he founded partly on the Divine Law, with a reference to the Levitical prohibitions, partly on practical experience, with a curious assertion that these marriages were found to be infertile ; he quoted also the testimony of St. John the Baptist against such unions. Englishmen, however, who had contracted incestuous mar- riages before their conversion, were to be tre'ated with gentle- ness ; they were to be admonished to abstain from the use of marriage, not without warnings of eternal punishment to follow, but at the same time they were not absolutely to be denied baptism or required to separate under pain of excommunication, for they must not be punished for offences committed in time of ignorance. The Church tolerates some things, and discreetly connives at some things, wrote the holy pontiff, with a view to their ultimate suppression. But in the faithful such things were to be sternly repressed. * If the questions of Augustine illustrate the perplexities of Roman Christians in face of the customs of the new nations, the Pope's replies, with their curious inconsistencies and halting assertion of principle, show how far the Church was even yet from having a clearly defined marriage law, and how tentative was the control then exercised. It should be observed also that the Church and the Respublica are still regarded as two mutually independent and even antagonistic powers. In the Gothic Kingdom of Spain the difference, and even the distinction, of the two powers tended to dis- appear, and legislation of all kinds was effected by councils * Bseda, Hist. Eccl. i. 27. The letter was once considered almost certainly inauthentic, but a careful study by Mommsen {Neu$i Archiv. der Gtstllschaft fiir d.d. Gtschichtskunds, vol. xvii., pp. 387 seqq.) has put another fac* upon it. S«e also Dudden, Grtgory the Grtat, vol. ii. p. I3». RESPUBLICA CHRISTIANA 133 which may be regarded, according to the business transacted, as ecclesiastical or civil. The same imion or confusion ap- pears in the Prankish Kingdom imder the Karlings, and the results may be studied in a long series of Capitularies. The English Kingdoms learnt the same method, and the way was gradually prepared for the great conception of an uni- tary Respublica Christiana, which fired the imagination and dominated the pohtics of the eleventh century. The political theory into which this conception was ulti- mately reduced by a poet and statesman hke Dante, by the great canonists of the thirteenth century, and by the cham- pions of the Empire in the fourteenth century, is not here our concern. These men worked upon a state of things actually existing ; their theories followed facts ; there was a practical system, involving intolerable friction, but hold- ing the field to the exclusion of any simpler device. Western Europe was a real political unit, essentially Christian by profession, in which the distinction of Church and State had disappeared. Political philosophy sought a reason for this in the natural unity of the human race, redeemed in Christ ; mankind was potentially gathered into the apostolic fellow- ship, and the actual state of things coidd be treated as an approximation to the ideal. But that was an afterthought ; Christendom was a working unit before medieval philosophy came to the birth. The Empire played an important part both in the practical working of the system and in the de- velopment of theory, but the system was not an outgrowth from the Empire ; it began while the Empire was in abeyance throughout the greater part of the West, it agreed neither with the traditions of the fourth and fifth centuries, nor with the conceptions of Justinian ; the translatio imperii, the conveyance of the imperial dignity to the House of the Kar- lings, did but give a wider scope to methods that were already established under the Prankish monarchy. There was a 134 OF MARRIAGE IN CANON LAW Christian community, loosely but effectively knit together, which might properly be called the Church, but in a sense larger than that of St. Paul, or even of St. Augustine ; with- in this community was a tangle of local authorities, spiritual and temporal ; there was a temporal chief, the Emperor, invested with shadowy and indeterminate powers ; there was a spiritual chief, the Pope, exercising powers indeter- minate and therefore capable of extension, but real and terribly effective. Such was the position when the Saxon Emperors by their personal exertions delivered Rome and the Church from enormous scandals, and so revived a power which was to dispute successfully with their successors the real headship of the world. It is in connexion with this system that we must consider the absolute control of the law of marriage acquired by the Spiritualty during the Middle Ages. This jurisdiction must not be confounded with that which we have seen to be already established in the East. We are not to think of a power specially conceded to ecclesiastics by the temporal authority. There was, indeed, in England an exceptional jurisdiction of this kind in testamentary matters, unknown elsewhere in Christendom, which Lyndwood could found only by guess- work " super consensu Regis et suorum Procerum in talibus ab antiquo concesso ; " ^ but the authority of the spiritual courts in matrimonial causes was part of the com- mon law of Christendom. Neither must we draw too close a comparison with the action of Innocent I, cited above ; for here there is no other law to be set aside by the rule of the Church. What we see is the final outcome of the assump- tion of supreme authority in such matters by the Church, which characterizes the Galilean councils of the sixth cen- tury. It has borne this fruit precisely because of an appar- 1 Provinciate, p. 176, s.v. Ecclesiasticarum libertatum, and p. 263, s.v. Ah olim. POWER OF THE SPIRITUALTY 135 ent check in the mixed councils of the eighth century. The nerger of Church and Kingdom in a single community has, afeer all, made a new differentiation necessary, and it takes the form of a differentiation of function within the body. The Church regulates marriage all through, but first as agaiast the secular law of the Commonwealth, of Emperor or King afterwards in undisputed sway as the universal organi- zatior, which has swallowed up all forms of human society. In ths second stage the control eventually falls into the hands of the Spiritualty. In England, before the end of the twelfth century, Glanvill has openly acknowledged the exclusive competence of the spiritual forum to determine the validity of a marriage.^ The work is done by the same hands as in the first stage, by the bishops and their officials, and there is thus an appearance of identity, but the position is fundamentally changed. The spiritual authority is no longer oppsing and correcting the law ; it is making the law and administering the law. This power of the Spiritualty in regard to marriage should be traced to its true cause. We must not, with some modern theologians and canonists, base it on a recognition of the sacramental character of marriage, for it was in full vigour before the doctrine of the sacraments was sufficiently de- veloped and defined to produce such an effect. We must not refer it to the peculiar circumstances of Western Europe, for we have seen a similar result produced under other conditions in the East. It was probably due in the first place to the intimate connexion of pure morality with marriage law, and was established by the growing conviction that this was of divine and not of human ordering. The Divine Law was crudely conceived in terms of the Levitical books, but even so it conquered men's imagination. Of those sacred books 1 Pollock and Maitland, Hist, of English Law, ii. 367. 136 OF MARRIAGE IN CANON LAW the spiritual chiefs of the Church were the guardians and the interpreters, and they were no less the teachers and vindi-r caters of morality ; on both grounds they were the naturp protectors of marriage. ' They would have been this even had the confused ju'is- diction of mixed councils and mixed tribunals continued. The differentiation of function which took its place tjirew everything into their hands. This differentiation, ^adi- tionally attributed in England to a single legislative ^ct of the Conqueror, was part of a great and slow movenjSnt of thought, which culminated in the codification of Canc/i Law. In the West, as in the East, but with less pubUcity/ collec- tions of canons had existed from early times, and sofne were expressly approved by important councils. In the middle of the sixth century Dionysius Exiguus made a new depar- ture by adding to the conciliar decrees which he gathered from all sources the decretal epistles of the Bishops of Rome that were preserved in the pontifical archives.' Early in the seventh century, a collection of the same kind, doubt- fully attributed to St. Isidore of Seville, was made and pub- lished in Spain. The ninth century saw the production of the forged decretals. In the year 1086 Anselijl of Lucca put out a new and enlarged collection, and early in the twelfth century Ivo of Chartres composed his Panormia, or Pannonica, in imitation of the Pandects of Justinian. But something more was demanded. All these works were mere accumulations of disconnected matter, words of the Church uttered in varied accents of authority. In the year 1151 appeared the Concordantia discordantium Canonum, or Decretum of Gratian, which marks a new departure. It is a digest, laborious but uncritical, of all the heterogeneous matter previously collected ; canons and decretals are no longer set down side by side, to be read independently or compared with one another by the reader ; they are dis- THE DECRETUM OF GRATIAN 137 persed under systematic headings according to their subject, and illustrated by citations from Holy Scripture, by extracts from the writings of the Fathers arid by comments of the author himself. The purpose of this study can easily be ascertained. Canon Law had hitherto been a mass of ecclesiastical traditions, maintained and administered by local hierarchies, agreeing with each other more closely than might be expected, but yet full of diversity, and kept in such unity as they possessed only by appeals to Rome and by the occasional supervision of the authority which the Popes had gathered to themselves in the course of ages. This customary law, residing in the breast of judges and ad- ministrators who had nothing else to guide them but a quan- tity of indeterminate records in the current collections, had given satisfaction because it was in keeping with the general practice of Western Europe. But the revival of the study of the Roman civU law in the eleventh century awakened new desires. In the schools of Bologna men read the Corpus luris Civilis, and found there an ordered system which made them dissatisfied with the confusion of the existing practice. The science of jurisprudence sprang into existence. An ecclesiastical Justinian, occupying the Holy See, might have produced a new Code, with Pandects and Institutes, but that was possible only in a time of peace and as the fruit of the long labours of jurists, and the Popes were en- gaged in arduous struggles which held their attention to the most pressing needs of the moment. This struggle however, while it hindered such a work, made the need of it more urgent. The Popes were standing firm against the growing power of the Emperor, and labouring to differentiate those spiritual matters which should be under the exclusive con- trol of the Spiritualty. The recovery of the Civil Law, and the enthusiasm with which it was received, threatened an immense aggrandisement of the imperial power ; should the 138 OF MARRIAGE IN CANON LAW German Caesar become in very deed the Princeps of Justin- ian's laws, the Pope would play a subordinate part in the Christian commonwealth. The current laws of the Church must be systematized to meet this invasion. If the old code was put forward as representing a juristic ideal to which the whole administration of law should conform, and against which a floating mass of custom could not hold its own, a new code must be formed out of the current laws which should have the same advantage of compactness and accessibility, with the added weight of a more spiritual authority. What the Popes could not do a private student might at least begin, and Gratian's Decretum was born. It had an immediate success. It was read and glossed. It took its place beside the Corpus luris at Bologna. It soon reached the incipient schools of Oxford, lagging behind its rival there by a bare decade of years. Within two genera- tions the glossators had done so much work that their com- ments also had to be codified, and were reduced to common form in the Glossa ordinaria, which became an integral part of the text. After the glossators, the canonists, who were to the new code what the jurists were to the old. Sinibaldi Fieschi, afterwards Pope Innocent IV, was the father of them. If the glossators tried to ascertain the true sense of the text, the canonists laboured to expound it in application to cases, and to bring it into relation with cur- rent but uncodified usages. In the meanwhile, Gregory IX had summoned the industry of Raymond of Peiiafort to digest in similar fashion the new matter which had accumu- lated by legislation since the time of Gratian. Boniface VIII and Clement V followed his example, and two further supplements completed in the year 1483 the Corpus luris Canonici. This great digest was designed for a double use. It was a textbook for Canonists, the foundation of study and of DEVELOPMENT OF LEGALISM 139 lectures in the Universities ; it was also a practical guide for ordinaries and advocates in the spiritual courts. A con- siderable part of it is devoted to the law of marriage, which brought to those courts much lucrative business. It was at once the consequence and the furthering cause of a great revolution. The systematizing of the Canon Law has been described alternatively as the greatest triumph and the greatest disaster of the Church. Perhaps the two judgments may run into one. It was a triumph for the Church to im- pose its penitential discipline upon the unwilUng as effective law, but in this triumph the Church may have suffered its worst loss. Spiritual discipline is concerned first with the good of souls, systematic law with the good of society. In canonical process the original end of discipline was nomin- ally kept in view, and an offender was brought into court pro salute animae ; but matters of a much more mundane char- acter engaged the attention of ecclesiastical judges, who were compelled to use both the minor and the major cen- sures of the Church for the enforcement of decrees that were remote from the affairs of the soul. When Popes arrived at the point of employing excommunication as a weapon of war in a quarrel with men against whom they had themselves taken up arms and formed alliances, they were following in the track by which the practice of the Canon Law had led them. Another fault of the system was a certain confusion of values. Men are prone to take legality as the measure of light, and the moral teaching of the Church was originally set over against a mere legality, requiring a service of love that could not be enforced. The law winks at evils which can be endured without public disaster, or which cannot be suppressed without dangerous disturbance of social order. When spiritual discipline passed into the category of formal law the moral witness of the Church was inevitably weakened. This would probably have happened, even if it had remained 140 OF MARRIAGE IN CANON LAW a thing apart from mundane concerns ; but when the Church undertook the legislative and judicial functions of a civic community, the trouble was intensified. There was a recur- rence of those evil results of Theocracy which we have observed in the Jewish system. The Church was at once teacher of the Divine Law, director of religious conduct, and legislator for the temporal needs of human life. All three functions are needed in respect of marriage, but they can be kept apart ; the concentration of them in the hands of the Spiritualty led to a blurring of boundaries. Canonists laboured to draw clear lines, but it was not easy for the common sort to distinguish between the immutable precepts of the moral law and the present requirements of a paternal government. Decretals were law for the whole of Western Christendom. But they were imposed upon a vast body of unsystematic and customary law, varying from region to region, from realm to realm.' Now when this kind of thing happens, there may be various results. Customs may be overruled at once by written law, they may be slowly modified by the pressure of ordered theory, or they may stubbornly hold their own even to the nullification of the imposed law. From the time of Edward I we have been familiar in England with the principle that statute law overrides customary law. The reason is obvious. England, except for some local fran- chises, was an unitary kingdom, and statute law was the expressed wiU of the King and his people, who thus volun- tarily abandoned any custom contrariant to the new legis- lation. But Christendom, though unitary in theory, was in fact minutely divided ; decretals came from a hierarchical * It is the German distinction of Juristenrecht and Volksrecht (Gierke-Maitland, Political Theories of the Middle Ages, p. xiii.), not the English distinction of statute law and common law. CHECKS ON lUS COMMUNE 141 superior, who did not seek the consent of those concerned ; must their customs give way ? The answer of the canonists may have been due to the impossibihty of enforcing in re- mote corners of Europe the decrees that issued from Rome, but that is only to say that in the true spirit of jurisprudence they took account of facts ; whatever the cause, their con- clusion for the negative was effectively received, and local custom contrariant to a decretal was held to bar its opera- tion. A prescription of forty years was sufficient. In like manner a notorious desuetude of the same length of time might, under stringent conditions, abrogate a law previously in force. It is evident that a custom of the Church may be either universal or particular and local, but when canonists speak of consuetudo without specification they mean the latter kind only, which they set over against the ius commune, or general law of Christendom. This law ran everywhere alike. We must not turn aside to the notion of a foreign Canon Law, foreign to each several country or locality, or native per- haps only to the Roman diocese, which would not be in force except where it was definitely received and confirmed by local adoption. This notion was probably borrowed from the circumstances of the Reception of the Roman civil law in Germany ; it has vitiated much discussion of the subject in England, but has been put to final rest, one may hope, by the magistral work of Maitland in his essay on " Roman Canon Law in the Church of England." Yet Maitland 's own present- ment of the case was not flawless. He spoke of the decretals as " absolutely binding statute law," which they were not, since they could be nullified by contrary custom. He seems to have regarded such custom as an external obstacle, hinder- ing the proper working of the Canon Law, to be evaded or accepted with resignation by ecclesiastical ordinaries. But local customs were not external to the Canon Law ; they 142 OF MARRIAGE IN CANON LAW were themselves part of the system. In a Roman court an Enghsh or a Danish custom might be imperfectly known, and a cause pending from one or the other country might be erroneously determined by reason of such ignorance, but if pleaded and proved it would be as good law there as in a local tribunal.^ The law of marriage was singularly uniform throughout the Western Church, but a right understanding of the nature of Canonical custom is required for the elucidation of one exception, the importance of which has been greatly exaggerated. According to the ius commune, a child born out of wedlock would be legitimated by the subsequent marriage of his parents. A custom of the realm of England put a certain restraint on the operation of this law, for in regard to inheritance such legitimation was not recognized. The reply of the barons, " Nolumus leges Angliae mutari," to the plea of the prelates at Merton, in the year 1236, for the reform of this bad custom, has been extoUed as a declar- ation of national independence ; but it was nothing more than a profession of blockish conservatism. It was effective, and to this day the injustice continues. In England alone, I believe, and in countries deriving their law from England, legitimation by subsequent marriage is disallowed. But the operation of the custom was confined within the strait- est limits. The ecclesiastical courts, but for the special privilege by which in England they administered testa- mentary law, might probably have ignored it ; as it was, they declined to recognize its validity, except only when determining questions of inheritance * ; in purely spiritual 1 There is useful criticism of Maitland in Mr. Ogle's book, The Canon Law in Mediaeval England, but Maitland's chief arguments remain uncontroverted. • * Even this exception is doubtful. See Pollock and Maitland, op. cit., vol. ii., p. 378. ADMINISTRATION 143 matters they followed the general law. But with this Umi- tation the custom was recognized as a valid exception within the general law of marriage. To describe it as a custom of the realm and not of the Church, or as an external restraint put upon the law of the Church, is to set up a distinction which was not valid at this date. The realm of England was merely a local division of the Christian commonwealth, and a custom of the realm was a consuetvdo existing within the Church. This case apart, local customs affecting the law of marri- age were few and unimportant. From the tenth century on- ward there was one law, finally digested in the Corpus luris and in the books of the canonists, for the whole of Western Christendom. This law contained all those divisions which have been set out above under the general head of Human Law. It remains to indicate briefly its principal characteristics. Juridically, the law was administered by the bishops in their several jurisdictions, but there were numerous exempt districts, called in England " peculiars," which were wholly or partly withdrawn from the control of the diocesan bishop, and subject either immediately to the Roman See, to another bishop, or to an inferior prelate as ordinary. In the eleventh century the judicial work of a diocese was for the most part entrusted to the archdeacons ; later, the archdeacons them- selves acquired an independent but subordinate jurisdiction, and their former work passed to the newly constituted courts of the bishop's Official and Vicar-General, these two offices being in England usually amalgamated under the title of Chancellor. In aU cases alike the bishop was the source of authority, and capable of acting in person, but his officials became something more than delegates and exercised their functions ex iure. There was thus an extremely compUcated judicature, concerned with the issue of dispensations and with the hearing and determination of causes. 144 OF MARRIAGE IN CANON LAW There was a complete system of appeals, first to a provin- cial court acting with the authority of the metropolitan, and thence to the court of Rome. Moreover, some dispensations and some contentious causes were reserved to these higher authorities, whose courts thus became tribunals of first instance. In England, for example, a dispensation from the rule requiring marriage to be contracted in facie ecclesiae was granted only by the Archbishop of Canterbury. A dis- pensation from the impediment of certain grades of consan- guinity and affinity was reserved to the Pope. I have shown cause for supposing that these limitations of the power of a bishop are in the nature of things inconclusive, and that a bishop cannot even by consent divest himself of the plenary authority of the apostolate. Appeals, reserva- tions, and exemptions belong to an economy which is toler- ated in the interest of order and good administration, and which a bishop is compelled to accept by the practical pres- sure of a power to depose him residing in the general episco- pate. By the operation of this pressure, as also by the good sense of all concerned, a hierarchy of jurisdiction has been established in all parts of the Church, to be disturbed only under the greater pressure of circumstances demanding reform by revolutionary methods. In other words, ecclesi- astical law, so far as it concerns the mutual relation of bishops, is founded on a consensual compact, from which any party has an inalienable right to withdraw. But the Canon Law of the Middle Ages did not rest upon this Cyprianic principle. It rested on the supposition of the Papacy, which must be distinguished in principle from any superiority vested by ecclesiastical custom in the Roman Pontiff. To the Pope was attributed a legislative and judicial power distinct from that of the episcopate ; and this doctrine, though not formu- lated until the period of the councils following the Great Schism, was producing fruit in action at least as early as THE PAPACY 145 the tenth century. The privileges of exempt jurisdictions, the rights of metropoUtans, the system of appeals, though traceable in history to local or general customs, were in juristic theory referred to that kind of papal concession which in some cases actually existed. Thus it came about that even the powers left to a bishop could be represented as vested in him by a revocable grant. The truer concep- tion, however, could not be suppressed ; and hence there were current two sharply contrasted opinions : the one that a bishop could dispense in all cases not expressly withdrawn from him ; the other, that he could dispense only in cases expressly referred to him by law. I here include the issue of dispensations among juridical functions because the more important kind, the contingent, must be regarded as belonging to the category of discipUn- ary judgments ; and indeed absolute dispensations also, though in principle legislative acts, were in the medieval system granted as if by judicial process, distinctively known as that of voluntary jurisdiction. It was a mode of doing business to which the habits of the time lent themselves in many departments. The contentious jurisdiction of the spiritual courts covered both the fact of marriage and its consequences. The most important cases were those iA which the validity of a con- tract, and the reality of the resultant state of marriage, were in question. The existence of an impediment, the authen- ticity and legitimacy of a dispensation removing it, the ratifi- cation of a contract fer verba de praesenti, the actual consum- mation of the marriage, were matters to be determined by evidence. The procedure of the ecclesiastical tribunals and their regulae iuris were borrowed almost entire from the Civil Law, which was already the object of keen study at the time when the system of courts was framed. On the validity of a marriage depended the legitimacy of the issue, M.CS. L 146 OF M4RRIAGE IN CANON LAW which was thus determined, directly or indirectly, by these courts. But the judge did not merely declare an invalid marriage to have no binding effect on the parties ; he re- quired them under pain of the severest censures to separate and live apart. The process was disciplinary, pro salute animae. It was, therefore, not only on a petition of one of the parties that a pretensed marriage could be annulled ; the spiritual judge could proceed against them on the strength of any information received. Information might be laid by a person interested in bastardizing the issue, but the court ignored such motives. A party might, however, pray for relief from the responsibilities of a colourable, though invalid, marriage, or from the false assertion of a clandestine con- tract which would be valid ; hence the suit for jactitation of marriage. Second only in importance was the jurisdiction of the courts in the matter of divorce. In this case one of the parties alone might pray for release from the obligation of cohabiting in bed and board, the grounds for such release being determined by law. I have shown that release of this kind is in the nature of dispensation from natural law, and it was therefore given reluctantly on the score of necessity. More obvious was the right of the court, in case of unlawful separation, to require the parties under pain of disciplinary censure to resume cohabitation. A temperate contrpl was exercised over the community of goods proper to the state of marriage ; claims arising out of this were severely re- stricted when the parties had contracted clandestinely, and not in facie ecclesiae ; the courts claimed the right, when annulUng a marriage for certain causes, to assign one party a moderate alimony at the charges of the other, and a like provision could be made in case of divorce. The effective sanction for all decrees of the courts was found in the infliction of spiritual censures. The foundation COERCIVE METHODS 147 of the whole procediore was disciplinary ; and this became evident, however juristic the matters dealt with and the methods might be, when coercive measures became necessary. The coercion applied by the ecclesiastical courts was purely spiritual, the ultimate sentence for the recalcitrant being the major excommunication. This involved, even at the bottom of the hierarchic scale, the abuse of spiritual weapons for determining temporal disputes which was the source of conspicuous scandals in higher quarters. Already in the eleventh century St. Peter Damian protested in vain. The abuse continued, and became more flagrant. It was self- destructive, for the censures so misappUed lost their terrors. The malediction of the Church, reinforced by the pubhc opinion of the faithful, which St. Paul found effective in the case of the incestuous Corinthian, proved insufficient for the maintenance of social order when it was invoked for the correction of minor faults in the general body politic. The Spiritualty had undertaken the administration of essentially temporal affairs, and needed the help of the temporal arm. That help was sought only in the last resort for the suppres- sion of contumacy, and it was not sought in vain ; the Chris- tian commonwealth fiad to stand by its ministers. In Eng- land this temporal support took the form of the King's writ de excommunicato capiendo ; a recalcitrant subject, who would not yield to spiritual censures, was imprisoned on the information of the spiritual judge until he should make sub- mission. The ecclesiastical courts were thus made effective for the administration of justice, to the detriment of their spiritual character. Judges and other officials were secu- larized, being frequently clerks in minor orders only ; the discipline of the Church degenerated into a business of pohce. The legislation of the Church in regard to marriage was fairly complete before the codification of the Canon Law, and 148 OF MARRIAGE IN CANON LAW few changes of importance were effected during the Middle Ages. The Lateran Council of the year 121 5, however, drastically reformed the current practice in the matter of the impediments of consanguinity and affinity. From the sixth century onward there was an increasing tendency to look back to the Mosaic law as a permanent expression of the will of God, those provisions which seemed to conflict with this view being treated as prophetic dispensations. It thus became possible to acknowledge a Divine Law, distinct from the law of nature, which should bind only the covenanted people of God. To this Divine Law were referred the impediments in question. But there were two possible ways of reading the law. The prohibition might be confined to cases expressly mentioned in the levitical books, perhaps with the addition of others exactly similar, or there might be found some general law which could be applied to all cases alike. Both methods of interpretation were used, but the latter prevailed. The Church had previously made special prohibitions, additional to those set up by the laws of the Empire ; it now became usual to rely on the levitical rule forbidding a man to have carnal knowledge of one who was " near of kin to him." We have seen St. Gregory the Great definitely opposing this Divine Law to the laws of the Roman Commonwealth. But to apply the law it was necessary to determine the meaning of cognatio, and an interpretation was sought from [the rules of succession in the Civil Law. According to these, cognates were recognized to the sixth degree, or in some cases to the seventh, and thus the kindred with whom marriage was forbidden included all the descendants of a man's sixth or seventh ancestor. But in the course of the ninth century the Latin Church, while adhering to the seventh degree as the limit, adopted a new method of computation, known as Computus Germanicus, which greatly extended the area of prohibition. Such a RESTRICTION OF IMPEDIMENTS 149 law of exogamy was impracticable, and it is not clear whether consanguinity in the more remote degrees was treated as a diriment impediment. The practical inconvenience of the rule was remedied by a constitution of the Lateran Council limiting the prohibition to the fourth degree colla- teral, and making the impediment in all cases diriment. It was also made plain that consanguinity arising out of ilhcit connexions had the same effect as that arising out of marriage. The impediment of affinity, derived by the Christian Church from the Mosaic law, declared by St. Paul to be recognized by Gentiles in the first degree,' but carried no fur- ther in the Roman civil law, was logically developed in the course of the eighth century in precise agreement with that of consanguinity. It was not based, as in the civil law, on the entire union of man and wife effected by a lawful marri- age, but on the bare fact of carnal copulation, interpreted in the sense of St. Paul's saying that, " he that is joined to a harlot is one body." ^ A man was forbidden to marry a woman with any of whose kindred to the seventh degree he might have had unlawful connexion. Nor was this all, for the more artificial affinities recognized by the Quinisext Council passed current for a time in the West also, and a man contracted affinity, not only with those of his wife's or paramour's blood, but also with those of her proper affinity, and, further, with those related to her in this same fashion ; a fourth kind of affinity was discovered by the ingenuity of theologians to exist between the children of a widow married a second time and the kindred of her former husband. These refinements were tempered to the fourth or second degree ; but even so, in a lax state of morals, a man would be surrounded by a network of relations, secret * I Cor, V. I, » Ibid. vi. 15. 150 OF MARRIAGE IN CANON LAW and avowed, which made lawful marriage almost impossible for him ; nor was it easy to ascertain that in seeking dispen- sation he had set out all the particulars requisite for its validity. The Lateran Council made short work of this intolerable state of things, and of the rich harvest for prac- titioners in the courts resulting from it, by sweeping away the artificial kinds of affinity and by reducing the impediment of natural affinity, like that of consanguinity, to the fourth degree collateral. These reforms involved an important corollary. It was not pretended that the Church could modify the Divine Law, therefore the Council implicitly condemned the pro- position that the abrogated impediments were of divine law. But it also weakened the contention that the levitical impediment of cognatio in [general was of divine law ; for how could the Church, in that case, vary by an arbitrary decree the limit of kinship ? A return to the recognition of the law of nature as the only divine law of marriage was not then possible, and those who held to a separate ius divinum were constrained to limit the impediments of this law to the cases specifically mentioned in the Mosaic books, or to draw artificial distinctions between those very cases. There were consequent disputes which affected the practice of dispensation, and which set all Christendom by the ears when Henry VIII of England sought relief for a carefully burdened conscience. Of minor legislative achievements of the Church it may suffice to mention three : the continuous attempt to put down clandestinity, the classification of impediments, and the regulation of procedure. Under the last head should be observed the rule that a marriage de facto contracted, even if a diriment impediment be known to have existed, must be accounted good until sentence of nullity has been pronounced by a competent CLASSIFICATION OF IMPEDIMENTS 151 court. Moreover, since process was always pro salute ani- mae, with the express purpose of putting a stop to unlawful cohabitation, no proceedings could be instituted in foro externa after the death of either party had brought the wrong doing to an end. Canonists commonly trace this rule back to the twenty-fifth canon of the Gallic Council of Agde, a.d. 506, but the thread of connexion is slender. The council forbad men to put away their wives privately, on the ground of an alleged impediment, without referring the matter to the ecclesiastical authorities. The later rule would cover such a case, but it went further, and was a vindication rather of the majesty of law than of the sanctity of marriage. It had considerable importance as affecting the legitimacy of children, who could not be put in danger of bastardy after the death of one parent. Against the obvious merits of the rule must be set the fact, abundantly proved in experi- ence, that by the skilful management of a collusive suit, pro- longed if necessary by appeals on interlocutory decrees, a notoriously unlawful marriage might be upheld until death put an end to the procedure. In this, as in other ways, the intricacy of the marriage law and the cumbersomeness of canonical process gave an immense advantage to wealth unscrupulously used. The distinction and classification of impediments, partly by positive enactment, partly by scientific determination, is one of the chief departments of Canon Law. We have seen that prohibition of marriage in certain circumstances was regarded as within the province of the Church from the beginning, but the right to declare a forbidden marriage nuU and void, or in other words to create a diriment impedi- ment, was slowly and reluctantly alleged. Reliance was placed at first on a reading of the Divine Law which could hardly be maintained ; an impediment so estabhshed was by an afterthought put on another basis when juristic studies 152 OF MARRIAGE IN CANON LAW made a better analysis possible. Impediments diriment and obstructive were then clearly distinguished, and the power of the legislature to impose a prohibition of either kind was recognized. What was at first merely disciplinary changed its character when the discipline of the Church came to be employed for the legal regulation of marriage. It is no part of my task to deal in detail with the legislation of the Church about impediments and dispensations, but it may be well to note as an illustration of method the treat- ment of the impediment of tempus feriatum. In the fourth century the Council of Laodicea had forbidden the cele- bration of marriages in Lent. The meaning is not quite clear ; birthdays are coupled with marriages, and the canon may look rather to the usual festivities of the occasion than to the actual contract.' There is no ground for supposing the prohibition to be a novelty. Yvo of Chartres and Gra- tian cite a Council of Lerida as extending it to the whole period from Septuagesima to the Octave of Easter, and making the same rule for Advent and Christmastide, and for the three weeks preceding the feast of St. John the Baptist. What isthere forbidden is nuptias celebrare, but it is added, " si factum fuerit, separentur," which seems to imply that the contracting of marriage at these times is forbidden, and that the impediment is diriment. ^ This council cannot be traced ; no such canon was adopted by ' Can. 52. Ov Sci iv ncrcroLpoKoiTTy ydfuov^ ^ yeveOXia iiriTeXeiv. On yeveOXiov see Suicer. The reference is not to the natalitia of martyrs, since they are provided for in the canon immediately pre- ceding. Hefele thought that the Emperor's birth-day festivities were intended. It may possibly be the anniversary celebration of his accession (ycvi/j/crts) ; or, since the word was certainly used of the Encaenia of a city, the dedication festival of a Church may be intended. But the association with marriage points rather to a private festivity. • Yvo, p. 8, c,^i42 ; Grfttian, caus. 33, qu. 4. TEMPUS FERIATUM 153 the Council of Lerida in 524, and in the year 572 the Council of Lugo, also in Spain, was content v/ith the rule of Laodicea, as rendered by Martin of Braga.^ Everything included in the Decretum of Gratian had some weight in the formation of the practice of the Church, but there is no trace of any attempt to treat marriages contracted in defiance of this prohibition as null, and the prohibition itself was interpreted as concerned only with the solemnities of marriage. So it was ultimately defined by the Council of Trent.^ These solemnities are enumerated in the Rituale Romanum : " nup- tias benedicere, sponsam traducere, nuptialia celebrare convivia." It follows that marriage may be contracted within the seasons of prohibition, but the parties are for- bidden to begin cohabitation until they have afterwards received the nuptial benediction. Such is the general law. There are, however, local rules, as in the diocese of Bruges, which forbid the contracting of marriage at these times.* This example may serve to show the purely disciplinary character of ecclesiastical legislation about obstructive impediments. To invalidate a marriage is another matter, and it is here that the laws of the Church grew to portentous bulk and intricacy. Diriment impediments of the natural 1 Mart. Bracar., Collectio Oriental. Can. 48. 2 " Antiquas soUemnium nuptiarum prohibitiones diligeuter ab omnibus observari S. Synodiis praecipit." Sess. xxiv. cap. 10. * De Smet, op. cit., p. 300. It has been thought that a similar rule once held in England. The latest authority that I can find is in the Visitation Articles of Robert Booth, Archdeacon of Durham, circ. 1712, printed in the Appendix to the Report of the Ritual Commission, 1868, p. 682. But Lyndwood, cited by the Arch- deacon, is clear that the prohibition does not extend to the con- tracting of marriage, apart from the solemnities. The contracting of marriage without the nuptial benediction, however, being strictly forbidden, the rule does in fact prevent contracting in facie eccle- siae except by dispensation. 154 OF MARRIAGE IN CANON LAW law were recognized, and their juridical treatment was elaborately regulated. They were classified in two kinds : those affecting the validity of the contract' — ^insanity, force or fear, and mistaken identity ; and those rendering certain persons incapable of intermarrying — ^immaturity, impotence, existing marriage, and consanguinity or affinity within certain degrees. In respect of all these, the legisla- ture had but two functions ; to ascertain the precise limits of the prohibition, and to determine how far contingent dispensation might be allowed. Diriment impediments of ecclesiastical law, on the other hand, were subject to con- tinual fluctuation. Some were adopted, as we have seen in the case of consanguinity and affinity, from a supposed divine law, and afterwards reduced to their true standing. The impediment of disparitas cultus, nullifying the marriage of a Christian with an unbeliever, was derived from St. Paul's teaching, and its diriment effect was not based on any conciUar constitution or decretal, but only on general custom. It was never extended in the West, as in the Eastern Church, to cover the case of heretics. A vow of continence, taken in the cause of religion, may be considered an impediment to marriage even by the law of nature, but the Western Church was slow to regard it as nullifying a marriage contracted de facto. The weighty judgment of St. Augustine was against such a development. He advocated a stern treatment of those who, vowed to con- tinence, afterwards married, but he refused to treat this vow as if it were a marriage to Christ, precluding any other union, nor would he allow those who thus fell away to be reckoned adulterous. With a characteristic distinction he said that their breach of vow was an evil even worse than adultery, but their marriage, as marriage, was good.* In- deed, there seems to be no text plainly declaring sugh raar- » Pe J^Qno Vi4mt0tis, 9-1 1, vows AND HOLY ORDERS 155 riages null before the seventh canon of the second Lateran Council : " Huiusmodi copulationem, quam contra ecclesias- ticam regulam constat esse contractam.^matrimonium non esse censemus." Much confusion ensued on this, since vows of continence were many and various, until Boniface VIII expressly restricted the operation of the law to the case of vows solemnly taken in an approved religious com- munity. When marriage was first forbidden to those in Holy Orders does not appear, but the prohibition was undoubt- edly general at the time of the first Nicene Council, where it seems to have been in debate whether even those married before ordination should not be interdicted from the use of marriage. The story of the intervention of Paphnutius has been discredited, but without good reason, and it is clear that the abstention from marriage enjoined by the Council of lUiberris in the year 305 was no rule of the Eastern Churches at any subsequent date. But the whole trend of Western thought was for some ages in the direction of the stricter obligation, and when the contrary practice had almost become established during a period of general dis- order, the reform preached by St. Peter Damian in the eleventh century was accurately represented as a revival of neglected discipUne. The frequency with which married men were raised with credit to the highest places in the Church is illustrated by the tragic history of the family of Hadrian II, himself the son of a bishop, whose wife and daughter were murdered by the husband of the latter, also the son of a bishop of great reputation. It was in the time of this married Pope that a provincial Council at Worms found it necessary to renew the rule of abstention.'^ After 1 Can. 9. " Placuit ut episcopi, presbyteri, diaconi, subdiaconi, abstineant se ab coniugibus, et non generent filios. Quod si hoc 156 OF MARRIAGE IN CANON LAW the unbridled excesses of the tenth and eleventh centuries, the renewed enforceipent of this rule might well seem to be necessary for bare decency in the Church, and it could be secured only by the entire removal of married men from the sacred ministry. Thus marriage and ordination came to be regarded as sacraments mutually exclusive. But even in the heat of that fierce conflict, when married priests and bishops were on all sides being degraded and deposed, there is no trace of any theory or practice invalidating a marriage contracted by them, until a decretal of Urban II in the year 1090 suggests what was thirty-three years later enacted in the first Lateran Council. ^ Even then it was separation only that was ordered, and, seven years later again, Innocent II at Clermont reverted to the older prac- tice.* Abelard, in Sic et Non, set out the contradictions current in his time. In the year 1139, the second Lateran Council put clerks in holy orders on the same footing as monks, declaring their attempted marriages void.* Yet Gratian almost contemporaneously affirmed both the vali- dity of marriage contracted by a deacon, and the lawfulness of cohabitation if the sacred ministry were abandoned. Not even a vow of chastity, he averred, taken at the time of decretumviolaverint, ab honoreclericatus pellantur." The chronology of Hadrian I is confused, but he seems to have been twenty-five years a priest, and some time longer in holy orders, when elected Pope in the year 867. As his daughter was not then married, it is difficult to believe that she was bom before his ordination. Did he foUow the Greek rule, and was it because of unwillingness to separate from his wife that he twice refused the episcopate ? It seems not improbable. 1 Can. 21. " Contracta quoque matrimonia ab huiusmodi per- sonis disiungi." 2 Cone. Claromont. a.d. 1130 ; can. 4. " Decrevimus ut ei qui a subdiaconatu et supra uxores duxerint, aut concubinas habuerint, officio atque beneficio ecclesiastico careant." * Vide_supra,^p. 155. CONSANGUINITY AND AFFINITY 157 ordination, could nullify the sacrament of a subsequent marriage.^ This vow of continence had been for some time imposed by reforming bishops, and was expressly ordered by a French Council at Bourges in the year 1031. The practice did not continue, but Gratian's successors deduced from the fact of ordination under the existing law an implied vow, on which, disagreeing with him, they based a conclusion of nullity of marriage. Boniface VIII, in his decretal restricting the impediment of votum to vows solemnly taken, ranked with these the vow of continence expressed or implied in the acceptance of Holy Orders. It is still debated by canonists whether it is this or the bare fact of ordination which constitutes the diriment impedi- ment. We have already seen how the natural impediments of consanguinity and affinity were by turns extended and re- stricted down to the time of the third Lateran Council. A further modification was introduced when the Popes of the fifteenth century began to dispense in regard to degrees of kinship which had formerly been considered to come within the prohibitions of the Divine Law. It was clear that either the extent of the Divine Law must be narrowed, or a power of dispensation must be recognized exceeding all that had been previously known in the Western Church. A reform of the Council of Trent, fixing a limit for af&nity by illicit connexion different from that retained where the connexion was by marriage, seemed to draw this impediment entirely into the province of ecclesiastical law. The impediment of cognatio spiritualis was of this charac- 1 Dist. xxvii. cap. i. "Si vero diaconus a ministerio cessare voluerit, contracto matrimonio licite potest uti. Nam etsi in ordinatione sua castitatis votum obtulerit, tamen tanta est vis in Sacramento coniugii, quod nee violatione voti potest dissolvi con- ugium ipsum." 158 OF MARRIAGE IN CANON LAW ter from the first. The rule of the Quinisext Council was not a new thing, for its appearance in the legislation of Justinian shows that it must have been long current in the Church. This artificial kinship was for a time greatly ex- tended, in the West as in the East, but was afterwards gradually restricted to the minister of baptism or confirma- tion, the sponsors in either case, and the parents of the recipient of the sacrament. It has enriched the English language with the word gossip. The impediment of fuhlica honestas arose from espousals per verba de futuro, which, without receiving the character of inchoate marriage attaching to them in Jewish law and the practice of Eastern Christendom, were held to set up such a relation between the parties, that on the ground of pubhc decency the rules concerning affinity should apply. The same consideration touches with even greater force a marriage duly contracted {matrimonium ratum) but not consummated, though here also no true affinity was set up by carnal union. There were prohibitions of this kind in the Roman law, based on the maxim, " non solum quid hceat considerandum est, sed quid honestum sit," but the impediment does not appear in Canon Law before the eleventh century. It played an important part in the intricate negotiations about the nullification of the first marriage of Henry VIII, for whom it was pleaded that his marriage with Katharine of Arragon was barred in this way, even if her marriage with his brother Arthur was not consummated. The impediment of crime arose from adultery, or from the murder of husband or wife, committed under promise of future marriage. The parties to such a crime were in the ninth century at latest rendered incapable of intermarrying. The existence of these many diriment impediments pro- duced two inevitable effects. On the one hand, there was EFFECT OF DISPENSATION 159 a continual increase of the practice of dispensation. A stationary population, compelled to look for partners in marriage within narrow limits of neighbourhood, was en- tangled in a complete network of prohibitions, and a genuine necessity made much relaxation necessary. But dispen- sation, however justifiable, is the worst enemy of law. The Western canonists, who upheld in the letter the strictest observance aUke of the natural law and of human law in regard to marriage, indirectly broke down all the safeguards of law. They never moved a hair's breadth from the doc- trine of the indissolubility of marriage. They insisted with so much severity on the observance of the duties of the married state, that Alexander III disallowed refusal to co- habit even with a leper. But the intricacy of the law re- garding impediments, the strictness with which it was applied, and the frequent occurrence of legal flaws in dis- pensations granted and received not always in good faith, made an immense number of marriages precarious. A marriage could not be dissolved, but it could often be an- nulled. The process -pro salute animae afforded material for a chicanery by which, with the help of evidence that was seldom sufficiently verified, almost any inconvenient husband or wife could be repudiated. Facilities, just and wholesome in themselves, for legitimating natural children, did away with the main hindrance to these nullifications, since the children born of a marriage so voided were not necessarily reduced to the standing of bastards. This again reacted on the public estimate of marriage, which was hardly to be distinguished in its effects from an avowed concubinage. It cannot be denied that the medieval Canon law failed miserably as guardian of the holy estate. Its outcome is illustrated on some of the best known pages of history by the case of Henry VIII, and to represent as champions of morality and of the honour of marriage the i6o OF MARRIAGE IN CANON LAW Popes, a Medici and a Farnese, who rejected his plea, is not less false than to picture the king as moved only or chiefly by the questioning of a sensitive conscience. He desired, partly on grounds of public policy, the annulment of his marriage ; grounds were alleged which it was common form to allow ; the facility with which the English clergy and the English people . were detached from their secular de- pendence on the Papacy is explicable only by their anger at seeing a customary judgment of the Papal Court, affecting the succession to the Crown, withheld under the pressure of a foreign power. Because Clement VII was supposed to act at the dictation of Charles V his jurisdiction was defied. But this would have been impossible, had not the whole administration of the marriage law become vitiated at the fountain head. When the legitimated bastard of a Pope could marry the bastard daughter of a King of Arragon, with a duchy for dowry, and when their son could marry the bastard daughter of a Spanish archbishop, to become the father of Saint Francis Borgia— when this was accepted as a natural state of things causing no scandal, marriage might seem to be on the way to become an extinct institution. Yet the miserable story ends in holiness, and the indes- tructible vitality of the Gospel stands revealed. The time was ripe for reform. The shock of alarming schism hastened it. Reforms were effected by the Council of Trent, one of which demands careful consideration. Marriage could be validly contracted, as we have seen, with the slenderest formalities, without any public function, and without religious rites. But-the Church had from very early days, if not absolutely from the beginning, contended for a public and reverent ministration, alike of espousals and of nuptials. At what date it was made a matter of discipline to insist on the contracting of marriage in facie ecclesiae cannot be ascertained. The practice was general CLANDESTINITY i6i in Tertullian's day, but the vehemence of his language seems to imply that it was not as strictly pressed as he could wish, and he may have declared no more than his personal opinion when he said that a clandestine marriage might be reckoned no better than fornication.^ The nuptials, rather than the espousals, seem for some time to have engaged the attention of the Church, cohabitation before the reception of a ritual benediction being severely condemned. When the whole administration of marriage came under hierarchical control, both espousals de futuro and the contract p&r verba de fraesenti were required to be public in facie ecclesiae, and censures were imposed on those who began cohabitation before the completion of the nuptial solemnities. Clandestinity was then regarded, in a somewhat improper sense, as an impedi- ment ; and the word is correctly used if it be understood that the omission of any prescribed formality, including the publication of banns, renders unlawful the next step towards the completion of the ma;trimonial contract. In the East, as we have seen. Church and State agreed to follow the Jewish precedent of making clandestine marriages void, but in the homogeneous community of Western Christendom this was not done. Only by the Council of Trent was clandestinity made a diriment impediment. The change was contested on the ground that it affected the substance of the sacrament, which was the mere consent of the parties ; but this objection called forth the obvious answer that it would apply equally to the creation of other diriment impediments iure ecclesiastico, for which there were abundant precedents. A graver objection to what was thus done may be found in its practical consequences. The Tridentine reform re- 1 De Pudic, 4. " Penes nos occultae quoque coniunctiones, id est, non prius apud ecclesiam professae iujfta moechiam at fomicas tionem iudicari pericjitantur," MX.S. M i62 OF MARRIAGE IN CANON LAW quired a marriage to be contracted in the presence of the parish priest of one of the parties with two other witnesses. Failing this, the marriage was to be null. For the validity of the marriage the priest was required only as witness ; no ritual was needed, and no official act. A marriage might be clandestine in all other respects ; there might be no pub- lication of banns, no previous notification of any kind ; the parties might at any moment spring upon the parish priest and two other witnesses, declaring themselves man and wife ; the marriage would be valid. Such is the purport of the decree Tametsi. But the strict requirement of the in- tervention of the parochus, or of some other priest deputed by him, especially when construed with the words Ego coniungo vos of the Roman ritual, encouraged the idea, foreign to all theology, that marriage is in some sort effected by the act of an official ; and this idea became fruitful of consequences. This was the last attempt at canonical legislation for Western Christendom as a whole. The Respublica Chris- tiana was already in dissolution. Already it was recognized that decretals and conciliar constitutions would not run as generally as of old ; there was, no doubt, a hope that the crumbling unity of the Church would be restored, but there were obvious difficulties at the moment, and it was expressly provided that the new decree should take effect only in those regions for which it might be specially promulgated. For the first time in seven hundred years or more, the unity of the marriage law of Europe was avowedly broken. It was inevitable, for Europe was in labour of the Modern State. CHAPTER V Of Marriage in the Modern State BY the Modern State I understand that organization of Civil Society which has supervened upon the dis- solution of the medieval system in Western Europe. In a sense, this is a return to an older order, but its form is partly determined by the discarded ideas, and still more by their impress on laws and institutions. That impress has been carried to the communities of the new world formed by emigration from Europe, and all the resulting states differ in certain characteristics from those of Eastern Europe which have never received it. In the East, the distinction of Church and State as two separate organiza- tions at no time passed out of sight ; the unity of the Church was insisted upon, though less strenuously than in the West, but the conception of an unitary world-state, in spite of imperial traditions, never arose ; the Basileus of Con- stantinople, though he affected to despise the Reges of Italy or Germany, treated on equal terms with his neighbours to the North and to the East. In the West a vision of unity took possession of man's minds, and dominated their political action. The Civitas Dei was one, and all mankind potentially entered into it ; Pope and Emperor were powers therein almost co-ordinate, kings and dukes and the hke were powers indeterminately subordinate. If Boniface VIII claimed the supreme control of the two swords, one of which he delegated to temporal wielders, the partisans i64 OF MARRIAGE IN THE MODERN STATE of the empire or of the French monarchy claimed on the other hand no more than independent authority iure divino for their chief, without denying equal or even superior authority to the Pope. The revival of the study of Roman law in the twelfth century brought into the existing system a savour that was not Christian, a conception of unity that was based less on human nature than on legal citizenship. The advent of Aristotle to the Schools of Paris a hundred years later was even more momentous. The Pohtics became a text- book alike of theologians and of lawyers, and the authority of the philosopher was irresistible. The word civitas, the word socidas, took a new meaning, based, with insuffi- cient historical knowledge, on that of the woKif avTdpKi}i vii. 14.. 57 xvi. 18.. 109 „ vii. 36. .115 xviii. 17. .109 ,, vii. 39. .17, 81 xix. 3-9..116 Galatians v. 23.. 52 „ xix. 4-8 . . 7 f. Ephesians v . 28, 29. .10 xix. 9. .23 V. 32.. 37 xix. II.. 97 I Timothy iii 2.. 13 Markx. 8.. 8 V. 9..13 „ x. 11..23 James i. i . . 69 Lukeii. 27. .113 I Peter i. i . .69 Printed by Butler * Tamnbr, Frome and London, WORKS BY THE RT. REV. G. H. S. WALPOLE. D.D. (Bishop of Edinburgh). Life's Chance. Demy 8vo. Cloth gilt, 4s. 6d. net. Personality and Power ; or, the Secret of Real Influence. Fifth Edition. Crown 8vo. Cloth, 2S. 6d. nei. •'The book to give a boy when he takes up his life-work." — CommonweaUh. "A series of thoughtful addresses on the secret of real influence. The book is one well worth careful study ; its reflections will be found stimulating." — New Age. ' ' A thoughtful and beautiful book. These addresses are mature and sympathetic, and fitted to be most helpful. " — Church Family Newspaper. Vital Religion ; or, the Personal Knowledge of Christ. Twelfth Edition. Crown 8vo. Cloth, 2S. fid. net. "The keynote in this interesting and beautiful book is the thought that religion is essentially the life of friendship and intimacy with God revealed in Jesus Christ. " — Guardian. " This book has the true tone of sincere and earnest piety, and the ring of honest conviction ; we like it, and we like the personality which seems to lie in peace and confidence behind it." — St. Andrew. ' ' This is a fresh and interesting presentation of a perennially important subject. . . . The book is characterised by a spirit of true devotion to our Lord, and is marked throughout by earnestness of thought and appeal. " — Life of Faith. The Kingdom of Heaven ; What it is and how we enter it, Third Edition. Crown 8vo. Cloth, 2S. 6d. nei. " This timely and valuable contribution to current theological thought is full of ideas presented with much freshness, as well as scholarship and sanctified common-sense." — Guardian. " The value of this book is quite out of proportion to its size. Written with all Dr. Walpole's unfailing charm of spirit and literary grace it makes the reader think. " — Record. The above three volumes can be obtained in a special Presentation Edition, Ump leather, full gilt back, gilt edges, silk register, 4s. 6d. net each. Gains and Losses. Crown 8vo. Cloth boards, is. 6d. net. " Every line is worth reading, as all Bishop Walpole writes is marked by deep spiritual insight and sound common-sense." — Record. " A stimulating book, which should startle many into serious reflection." Guardian, Daily Teachings for the Christian Year. Selected and Arranged by the Bishop of Edinburgh. Cloth, 3s. 6d. net. Presentation editions, paste grain, padded, gilt lettered, 7s. 6d. net ; morocco limp, round corners, gilt lettered, ids. fid. net. "Bishop Walpole has made an admirable collection of extracts from famous preachers, really reading like miniature sermons. They deal suitably with each day in the Christian Year." — Church Family Newspaper. Paraphrase Method of Bible Study. As recommended by the Bishop of Edinburgh. Paper, id., or 6s. 3d. per 100 ; wrapper, 2d., or I2s. fid. per 100. Edited by the Rt. Rev. G. H. S. WALPOLE and the late Rev. C. BARTON. Handy Atlas to Church and Empire. Comprising 120 Maps, Plates, and Statistical Tables, showing the Advance of Missions in All Parts of the British Empire to the Present Day. Cloth, is. fid. net. Mr. Eugene Stock : " It is simply delightful, full of valuable information." Bishop of St. Albans: "Most admirable." Bishop or St. Germains : " Excellent both in design and execution, and must prove of great service to all interested in Foreign Missions." WORKS BY THE RT, REV. G. H. S. WALPOLE, D.D. {Bishop of Edinburgh). Communion and Offering. Simple Instructions upon tlie ^ Office of Holy Communion, together with Helps for the carrying out of same. Fifth Edition. Limp cloth, uniform with Prayer Book, is. ; leather, 2S. ; lambskin, 3s. ; Persian calf, 3s. 6d. Canon Benham : "It strikes me, at this moment, as about the best on Holy Communion which I have ever seen." The Rev. B. M. O. Hancock : "I feel the book is worthy of unqualified recommendation. It meets a real need ; the devotions and instructions are fervid, wise, and cathohc." ' ' The value of this excellent little book is very great. It is for busy people who want short and good prayers, and who welcome sound instruction if it can be briefly given. . . . The whole forms a singularly complete and convenient manual, and we cannot doubt that it will be widely adopted." — Guardian. Holy Communion, A Simple Guide to. Cloth, 6d. The People's Prayer Book. Containing also the People's Psalter, zs. 6d. net ; combined with Hymns Ancient and Modern. Cloth, 3s. net. A practical Prayer Book, containing the order of Morning and Evening Prayer, with the People's Psalter and Hymns Ancient and Modem. Bound in one volume, with Explanatory Notes of the proper meaning and purpose of each portion of the service. The book, in its handy and compact form, meets a distinct need, and will prove a real help to private and public devotion. The People's Psalter. Containing the Psalms of David, together with the Litany and the Canticles and Hymns of the Church. With the Pointing of the Cathedral Psalter (by permission). Foolscap 8vo. Cloth, 2S. fid. "The usefulness of an already useful and popular work has been greatly increased. " — Guardian. " This Psalter forms a volume that will prove useful and instructive to many a worshipper, and it should have a large circulation." — Oxford ChronieU. The People's Psalter. A Plain Book for those who wish to use the Psalms in Church with Intelligence and Devotion. Seventh Edition. Cloth, 2S. ; leather, 3s. ; lambskin, 3s. fid. ; Persian calf, 4s. fid. Bishop of Durham : ' ' The book seems to be admirably adapted for its purpose, and I trust it will have a very wide usefulness. " " We think that this little book may be a useful help by suggesting ways in which different Psalms may be applied to present-day difficulties and to the problems and anxieties with which the Church is always confronted." — Guardian. Christ in the Home. Suitably bound in white, with gilt design and gilt top, fid. net ; cloth gilt, IS. net. Presentation Edition, velvet leather, gilt edges, silk register, 2S. net. " Canon Walpole's teaching is so emphatically timely, so faithful, so completely calculated to elevate and purify home ideals, that we commend it unreservedly." Sunday Strand. The Doctrine of the Resurrection. Paper Covers, 2d. " In the Mount of the Lord it shall be seen." The frontispiece from " Communion and Offering." Reprinted on cardboard and enlarged, size 16 ins. by loj ins., for use in Classes. 4d. net. The Litany Divided and Arranged for Particular Inter- cession. Demy i8mo. 8 pp. One Halfpenny. LONDON : ROBERT SCOTT, PATERNOSTER ROW, E.C. SPECIMEN PA.GB 42 ST. PAUL'S EPISTLE TO THE GALATIANS [chap, iv Spirit of his Son into our hearts, crying, Abba, Father. 7 So that thou art no longer a bondservant, but a son ; and if a son, then an heir through God. desire for prayer, for approach to God as Father, is a witness to our divine nature ; it is the yearning of the soul made in the image of God which can know no rest till it find rest in Him. This instinctive yearning is due to the indwelling Spirit. the Spirit of his Son] The parallel with Rom. viii. 14-17 is very close. There we have 'the spirit of adoption whereby we cry Abba, Father '. This is one of the passages which make it difficult to say how far St. Paul definitely dis- tinguished between Christ and the Holy Spirit. Abba, Father] Rom. viii. 15 ; Mark xiv. 36. A6&a is the Aramaic iox father; cf. Bar-abbas, abbot. It is probable that the expression was a liturgical formula, derived from the opening words of the Lord's Prayer. Moulton, Grammar of New Testament Greek, Prolegomena, p. 10, suggests that the original word was retained 'from the pecu- liar sacredness of its associations'. He compares the devout Roman Catholic saying h.\s paternoster, but, as a good Protestant, he adds, * Paul will not allow even one word of prayer in a foreign tongue with- out adding an instant translation.' At the same time the combination of the two words is a good illustra- tion of the fusion of Hebrew and Greek elements in the one Church, though it is hardly likely that St. Paul meant to suggest this directly. It is still less probable that the foreign word is meant to suggest the ecstatic utterance of the ' gift of tongues ', regarded as the most con- spicuous manifestation of the Spirit's presence (Bacon). In I Cor. xvi. 22 we have the Aramaic maranatha, as a sort of watchword of the Christian commu- nity; in Rev. i. 7 ««' (Greek 'yea') and amen (Hebrew) are combined, and mart qlri (or kiri), the Aramaic and Greek for 'my lord', is found in Rabbinical writings (Lukyn Williams). 7. no longer a bondservant] The metaphor of so. i, 2 is defi- nitely dropped, since in this and the following verses the figure of the son who technically has the status of a slave would not do justice to the thought ; actual spiritual bond- age is referred to. In illustration of the analogy of redemption from slavery in this and other passages, the remarks of Deissmann, Light from the Ancient East, p. 326, are most valuable. ' Among the various ways by which manumission of a slave could take place by ancient law, we find the solemn rite of fictitious purchase of a slave by- some divinity. The owner comes with the slave to the temple, sells him there to the god, and receives the purchase money from the temple treasury, the slave having previously paid it there out of his savings. The slave is now the property of the god ; not, how- ever, a slave of the temple, but a protegd of the god. Against all the world, especially his former master, he is a completely free man.' We find repeatedly in inscriptions and papyri the phrase that the slave has been bought by Apollo [or some other god] for freedom, the very words used in Gal. v. i, 13. It is expressly laid down that he may now do the things that he will, v. 17. As he is technically the property of THEOLOGICAL AND RELIGIOUS WORKS. By the Rev. ALFRED PLUMMER. D.D. AN EXEGETICAL COMMENTARY ON THE GOSPEL ACCORDING TO S. MATTHEW. By the Rev. ALFRED PLUMMER, D.D. With Full General and Greek Indices. Cloth, 12s. " By far the best and most useful English work on S. Matthew that has appeared in our generation. It is exactly the book for which students have been waiting many years. It is indispensable to the student of the Gospels as the best commentary on S, Matthew in the English language." — Guardian. "A valuable addition to the preacher's shelves. Dr. Plummer's work is pre-eminently readable and interesting, and his exposition is always sound and often masterly. This makes the book one of the best commentaries for the preacher we know. No student can give himself to its study without finding his mind permanently enriched." — Preachers' Magazine. iPreaCberS of "tl0*bai2. Edited by the rev. J. STUART HOLDEN, M.A. Handsome Library Binding. 3s. 6d. net each. HERE AND HEREAFTER. By the Rev. J. E. WATTSDITCHFIELD, M.A. THE INEVITABLE CHRIST. By the Rev. Canon FREDERIC B. MACNUTT, M.A. THE CHRISTIAN STANDPOINT. By the Rbv. JOHN M. E. ROSS, M.A THE COMMONWEALTH OF THE REDEEMED. By the Rev. T. G. SELBY. CHRIST AND EVERY-DAY LIFE. By the Rev. W. E. CHADWICK, D.D. "Scholarly thought practically applied to the needs of every-day life." Church Family Newspaper. THE FEAR OF THINGS. By the Rev. JOHN A. HUTTON, M.A. "New, in style, and thought, and rich suggestiveness."— /"Wwirtw Methodist. THE EXCHANGED CROWNS. By the Rev. ALFRED ROWLAND, D.D. "Cultured and scholarly, a feast to educated readers."— ffomiletic Review. REDEEMING VISION. , „ ^^ By the Rev. J. STUART HOLDEN, M.A. Cloth, 3s. 6d. net. By the same Author. SUPPOSITION AND CERTAINTY. Cloth, 2s. net. ST. PAUL AND HIS CONVERTS: Studies in Typical New Testament Missions. „, , ^ By the Rev. HARRINGTON C. LEES, M.A. Cloth, Is. net. "A gem, to be placed amongst our best-loved books." — The Record. THE FACT AND FEATURES OF THE LORD'S RETURN. By the Rev. HUBERT BROOKE, M.A. Cloth, 2s. net. THE VISION OF HIS FACE. „ , ^, ^ By D. FARNCOMB. Introduction by Rev. J. Stuart Holden, M.A. Cloth, 3s. 6d. net. CHRIST AND HIS CRITICS : Studies in tlie Person and Problems of Jesus. By the Rev. F. R. M. HITCHCOCK, M.A. Cloth, 2s. 6d net. By the same Author. SUGGESTIONS FOR BIBLE-STUDY. Cloth, 2s. net. LONDON: ROBERT SCOTT, PATERNOSTER ROW, E.G. BOOKS FOR PREACHERS AND TEACHERS. SERUONS IN A NUTSHKLL. A New Handbook of Outlines for Busy Speakers. By J. ELLIS (Editor of tht " Tool Basket " Series). Cloth, Is. net ; Interleaved Edition, Is. 6d. net. A TreBSory of Helpful Sn^estions. IN qniETNESS AND CONFIDENCE. Fifty>siz Readings for Sundays and Holy Days on various aspects of Christian experience. By the Vbn. Archdeacon WYNNE, D.D. Cloth, 8s. 6d. net MINIATURE SERMONS FOR BUST PEOPLE. By the Rbv. H. O. MACKEY. Cloth, 2s. 6d. net OUTLINE STUDIES. For Sermons and Addresses. By the Rbv. JAMES DINWOODIE. Cloth, 2s. 15d. net IDEALS FOR THE CHRISTIAN LIFE. By the Rbv. W. D. M. SUTHERLAND. Introduction by Rct. G. H. Morrison. Cloth, 2s. 6d. net "A work of really original povei."—BrHisA IVeetfy. THE USE OF THE EYES IN PREACHING. Preaching and Speaking without Notes. By the Rbv. JOHN NEVILLE. Paper, Is. net ; Cloth, Is. 6d. net SUNDAY-SCHOOL TEACHING. Helps, Counsels, and Suggestions. By the Rbv. F. G. LLEWELLIN. Introductory Letter by the Bishop of Llandaff. Cloth, Is. net TWO TREATISES ON THE CHURCH. By the Rev. THOMAS JACKSON, D.D., and the Rbv. ROBERT SANDER- SON, D.D. Preface by the Lord Bishop of Durham. Cloth, 3s. 6d. net THE MESSENGER OF GOD. Studies on Malachi. By DUGALD MACFADYEN, M.A. Cloth, 2s. net THE PROBLEM OF UNITY: A Symposium by Leaders of Evangelical Thought. Preface by the Right Hon. LORD Kiknaird. Cloth, Is. 6d. net. TOOLS FOR TEACHERS. By WILLIAM MOODIE. Helpihl for those engaged in the Moral and Religiooi Training of the Young. Cloth, 5s. MY MATES. Sunday Talks to Young People. By J. J. BROWN. Qoth, 2s. net THE FULNESS OF THE GOSPEL. By D. L. MOODY. Cloth, Is. 6d. net THE LORD'S TREASURES. Bible Talks with the ChUdren. By Mrs. HARDING KELLY. Cloth, Is. 6d. net. WORKS ON CONFIRMATION AND COMMUNION. CONFIRMATION LECTURES. A Series of Notes on the Church Catechism. By the Rev. Canon A. E. BARNES-LAWRENCE, M.A. Cloth, Is. net. CONFIRMATION. A Manual for Candidates and Teachers. By L. M. BAGGE. Preface by the Rev. Canon W. H. M. H. Aitkbn. Cloth, Is. 6d. net. COMMUNION AND OFFERING. Simple Instructions upon the Office of Holy Communion. By the Right Rev. the BISHOP OF EDINBURGH. Cloth, Is. ; Leather, 2s. ; Lambskin, 3s. ; Persian Calf, 3s. 6d. THE CHRIST IN HOLY COMMUNION. By the Rbv. T. A. GURNEY, M.A. Cloth, Is. net Send for complots Catalosue, free by post. LONDON t ROBERT SCOTT, PATERNOSTER ROW, E.C