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that there must be a cause, though it need not be a very grave one, while others claimed a full liberty of repudiation.
That the manners of the East tolerated unrestrained licentiousness, is apparent from the lives of David and Solomon and the very remarkable method that Ahasuerus took to supply the throne of Persia with a queen. “The first example,” says Josephus, “ of the repudiation of a husband by his wife was given by Salome, sister of Herod the Great, who sent the writing of divorcement to Corsobarius, the Idumean, contrary to the usage of our laws, which give this power only to the husbands.”
The laws of Solon permitted either party to demand a divorce. The husband obtaining one, was required to restore the dowry of his wife, and to furnish her with a maintenance. The wife was required to demand the divorce in person from the judge. A curious and illustrative scene is found in the biography of Alcibiades.
The nature of the marriage contract in Rome has been the subject of much discussion among historians. The words by which the contract was formed, in the early epoch, have not been preserved, and the ceremonies are open to a various interpretation. It is agreed that the confarreatio of Romulus and the comptio of Servius were both, in some measure, religious ceremonials. In the confarreatio, there was the sacrifice, the consultation of aruspices, the consecrated bread and water, the transfer to the husband, by which the wife was spiritually engenerated by him, and came to his family as a daughter. In three cases was he permitted to repudiate her; for either, he was able to expel her from his family. This expulsion deprived her of the family and family gods, and deprived her of her position and place in the city. The offences were adultery, poisoning of their children, and abandonment of the conjugal domicil. The Roman juris consults describe a marriage as the conjunction of a man and woman for mutual aid during life, with the communion of human and divine things.
Married persons were called conguges, and marriage a congugium, for the yoke under which the betrothed was placed was emblematic of the concord which was necessary, and the phenomena of the union. The goddess VIRIPLACA presided over the
domestic peace, and provided the things requisite for the dignity of the husband and the honor of the wife. The history of Rome is replete with evidence of the estimation in which marriage was held, and the virtue and magnanimity of the women of Rome. The women, on one occasion, supplied the public treasury by the surrender of their ornaments, and from thence funeral orations, in celebration of the virtues of women, were permitted. That their honor might be surrounded with inviolability, it was not permitted, even in courts of justice, for her male adversary to touch her, that her robe might not be sullied by the touch of a stranger's hands. Their manners were reserved ; their entertainments and dances modest; their employments domestic. We have seen, in the earlier portion of this article, that a change took place in the manners of the Romans, and especially in the ceremonies of marriage. The introduction of new people, under their empire, and the toleration of new modes of worship, and new gods, led to the discredit of the ancient and strict ideas of the early Romans. The religious ceremonies were no longer exacted, because the imported populations neither comprehended their import, nor reverenced their sancity. Irreligion was the first consequence; the destruction of social morality the next. Gibbon notes this change in the ceremonies of marriage, as a fatal symptom of the decline of strict manners. Divorces came to be allowed by mutual consent, or for a legitimate cause, or even without a cause; but the party who repudiated the other for no cause, was subject to the penalty "panain justi dissidir.” Seneca describes the dissoluteness—the abandonment--that penetrated into the habits of the people: “Women married only to be repudiated, and were repudiated only to marry again. Nubunt repudii causa et exeunt matrimonii causa."
6. When the Roman matrons became the equal and voluntary companions of their lords, a new jurisprudence was introduced, that marriage, like other partnerships, might be dissolved by the abdication of one of the associates. In three centuries of prosperity and corruption, this principle was enlarged to frequent practice and pernicious abuse. Passion, interest, or caprice suggested daily motives for the dissolution of the marriage; a word, a sign, a message, a letter, the mandate of a freed man, declared the separation. The most tender of human connec
tions was degraded to a transient society of profit or pleasure. According to the various conditions of life, both sexes alternately felt the disgrace and infamy; an inconstant spouse transferred her wealth to a new family, abondoning a numerous, perhaps a spurious, progeny to the paternal authority and care of her late husband; and a once beautiful virgin might be dismissed to the world, old, indigent and friendless. A specious theory is confuted by this free and perfect experiment, which demonstrates that the liberty of divorce does not contribute to happiness and virtue.”
It was in this condition of the laws and manners that Christianity came to have a voice in the administration of the empire. Constantine placed a limit upon disorders that he did not dare to uproot. He confined the causes of divorce to three. If the husband were an assassin, poisoner of his children, or had violated sepulchres—or the wife was an adultress, a bawd, or poisoner; these were just causes for divorce.
The Emperors who followed, enlarged the number of cases which furnished the legitimate reason. These were captivity of the husband; absence for four years without news; old age, sterility, , adultery, homicide, treason, theft, sacrifice, forgery, impotence, religious professions, cruelty, immodesty, &c. Some of these were mutual, and others belonged either to one or the other.
The divorced wife was not allowed to marry for a year after the divorce.
The divorce by mutual consent was still continued, and the privilege of repudiation was still permitted, under a penalty. The law of divorce, as found in the Theodosian code, which formed the law of the Western Empire, prevailed in Europe until the elevation of Charlemagne. It had been the subject of restriction in France by princes of the first line, but to him its extirpation is due. It existed in Britain till the tenth century, and in Spain till the thirteenth.
It is not to be concluded that the Church acquiesced in the imperial legislation quietly. These gentle laws of marriage prevailed against the earnest teachings of the Christian fathers. The legislation of Christian States is not always Christian, as every statute book of the United States, except that of South Carolina, will show, in reference to this very subject.
“Do not tell me,” says St. Chrysostom, “ of the laws made by those without, which permit you to separate by means of a writing of divorce. It is not according to those laws that God will judge you. He will judge you by those he has himself established.”
“ The divorce is absolutely reprobated by our laws,” says St. Gregory, “though the Roman laws dispose otherwise.”
“ The laws of Cæsar are one thing, and the laws of Jesus Christ another,” says Jerome. “ The precepts of Papinion to one effect, and those of Paul, our apostle and master, to another.” St. Ambrose says,
“You send away your wife, as if you had the right--as if you committed no crime in so doing, and suppose yourself justified because human laws tolerate it. But the divine law forbids it. Listen to what the law of the Lord says, to which those who make the laws should submit: “Let not man separate what God has joined.'
Theologians have a firm support in distinct passages of the sacred canon for the conclusion that divorces, coupled with a privilege of another marriage, were forbidden. The wife who was married after her repudiation, under the Hebrew system, was called defiled, and the Apostle Paul teaches “that the wife should not depart from the husband, and that the husband should not put away the wife.”
The Church at Rome in the year 407, through Innocent, seems to have declared a settled doctrine on this subject. In writing to the Bishop of Toulouse, he says, “ You have consulted me, my dear brother, concerning those who, having been divorced, have entered into a new marriage. It is clear that both parties commit adultery. Those then, or those who, during the life of their husband or wife, dare to contract a second marriage, although the first seems dissolved by a divorce, cannot be excused from adultery. Even those to whom they are united are guilty of the same crime according as it is written in the gospel“ That whosoever shall put away his wife, saving for the cause of fornication, causeth her to commit adultery: And whosoever shall marry her that is divorced, committeth adultery.” All such
persons, therefore, should be excluded from a communion with believers.” The Council at Carthage adopted the canon that, conformably to the doctrine of the Evangelist, and to that of the Apostle, a husband abandoned by his wife, or a wife repudiated by her husband, ought not to contract a new marriage, but to remain in that state until they were reconciled; otherwise they
should be put in penance, and as the civil laws did not correspond, they declared they would solicit an imperial law to harmonize the laws.
Charlemagne adopted this course, and, during the 9th and 10th centuries it became the law of nearly all of Western Europe. The Greek Church about the same period adopted the interpretation which allowed divorces for adultery. At the time of the reformation divorces for causes arising after the marriage were repelled by the moral sense of nearly the whole of Christendom. Divorces were permitted; but the causes must have existed at the time of, and formed impediments to the celebration of the marriage. These causes, as now admitted by the Roman Church, have been expressed in the form of Latin verse and arem
“Error, conditio votum, cognatio crimen ;
These causes arise in an error in reference to the person, in the fact of violence, rape of the woman or whether the parties have the condition of freedom. Kindred (cognatio) by blood or affinity, (either by marriage or in the church, sponsors by baptism or children by adoption,) were not permitted to intermarry.
The Christian cannot marry the infidel, nor can one under vows, or in religious orders, or who is held under the bonds (ligonen) of a previous marriage. Murder or adultery, committed to enable parties to marry, are impediments. Marriage cannot be founded in crime. Impotence, after a long struggle, was admitted among the causes of divorce; and the Council of Trent rendered the presence of the Parish Priest of one of the parties and two witnesses necessary. Some of the impediments were permanent, while others were relative, and some could be overcome by dispensation. The Church did not provide for annulling marriages contracted against the consent of parents, or without publication of banns; though, in the practice of the clergy, these are exacted before a marriage will be celebrated. The final con