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be "sacrilegious persons," and, therefore, ecclesiastical judges might proceed against a layman for this crime. But that which gave the church its jurisdiction, in matters of this kind, is to be discovered, rather in the partiality felt by the Emperors towards those Bishops, who had been the means of converting them to Christianity. Adultery, is not a spiritual offence in its own nature, any more than murder; both are offences against the second table: but the Emperors were willing to confer a power on the church of investigating and punishing this crime: and they considered the infraction of a bond, which the church had sealed, a proper subject for ecclesiastical cognizance. Accordingly, excommunication in a layman, and deposition in a churchman, were made to follow this crime.
In relation to Divorce, the edict of Constantine, in A. D. 331, to which reference has been already made, was framed particularly with a view to lessen its frequency. Formerly, drunkenness and gaming in the man, had, by custom, authorized the woman to leave him; and slighter causes gave the same permission to the husband; but by that edict, three causes were mentioned, to which the licence of separation was
restricted. The man was not to be quitted, unless he was a murderer, a poisoner, or a robber of graves; nor the woman repudiated, unless she was an adulteress, a poisoner, or a corrupter of youth. The imagination is somewhat puzzled, to conceive the reasons which assigned exclusively these vices as the causes of Divorce. About six years after, the same Emperor permitted an absence of four years to entitle to a Divorce. But this was limited to the case of soldiers, whose wives, not having heard either of, or from them, during that period, might marry again.
The first edict of Constantine is ratified by Honorius, Theodosius the Great, and Constantius, in 421. But in 429, this Theodosius (of whom Barbeyrac in Grotius says, "il consultoit fort les Evêques") determined to abrogate it, and, accordingly, he and Valentinian gave a new liberty of Divorce. The exordium of their decree strongly reprobates the severity of the former enactments, and opens the door afresh to new freedom in this particular. But the inconveniences of this were soon felt; and in the year 449, the same Emperor restored it, and limited the permission of Divorce nearly to the same causes as before. One feature in the new law was this, that besides Adultery on the
part of the husband, and the flagrant crimes of poisoning, &c., which entitled the wife to a Divorce, this of cruelty towards her was now added, (the Divorce propter sævitiam;) cruelty, however, amounting to peril of life. Divorces, by mutual consent, had previously prevailed. This edict, however, altered some of the provisions which attended such separations, and allowed the wife to marry again within one year; before, it was not permitted till after a lapse of five.
This was the true state of Divorce from the time of Constantine to that of Justinian. This last Emperor added several reasons for separation. He attempted to justify the loosening of the bond of marriage, on the general maxim that, in human affairs, there is nothing lasting or permanent; and that, consequently, marriages may be annulled; sometimes, with the consent of both parties, or upon some other reasonable account. The liberty of Divorce was thus rather encouraged than checked, and the passion for monastic vows, and a profession of chastity, tended still more to augment it.
Justinian had, at first, stopt the current a little, but his grandson, Justin, yielding to the prayers of his unhappy subjects, (as it is sarcastically stated by Gibbon,) again restored
the liberty of Divorce by mutual consent; and things remained in this state for nearly three hundred and forty years, about the end of the ninth century, in the reign of Leo the philosopher.
This Emperor made a collection of laws, which he termed Basilica, from which he excluded the edicts of Justin. One of his permissions of Divorce was for madness that had lasted three years.
This is about the period at which we are naturally conducted to the fourth division of this Essay.
WE proceed now to consider some of the laws and customs of various countries subsequently to the period of which we have last treated.
We speak, as before, of Adultery first.
The age of which we have now to treat, continued to insist, as far as the influence of the Church extended, that the matrimonial offence should be visited with rigour; and accordingly the Canonists marked their opinion of conjugal fidelity by severe proscriptions of this violation of it. One of the Canons has this passage: "Let adulterers be stoned, that they may cease to increase who will not cease to be defiled."