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Western Church ; two cases are mentioned as having happened, by Justin Martyr, in his Apology, written within fifty years after St. John died,) and St. Jerome, showing, that the women sometimes adopted this practice. The one was of a Christian woman, whose husband's vicious course of life at last compelled her, notwithstanding the intreaties of her relations and friends, fearful, perhaps, of this innovation on established usage, to send him a Bill of Divorcement, and to leave him ; the other case was that of the celebrated Fabiola, who divorced her husband and married again. The man was a complete profligate ; and Justin, in citing the case, commends it, saying, the measure was taken “OTWS μη κοινωνος των αδικημάτων και ασεβηματων γενηται, μενουσα εν τη συζυγια και ομοδίαιτος και QUOIXOITOS yovoueyn :" but St. Jerome, in stating his case, mentions, the second marriage to have been contrary to the rules of the Church, and that penance was done for it afterwards. This is difficult to reconcile with some observations of St. Ambrose, who quotes several Councils, particularly of the early Gallican Church, wherein this liberty of remarriage appeared to be countenanced. That Father has some spirited remarks addressed to the men of his age, in deprecation of the
frequent use of this liberty of putting away their wives.
"To leave one's wife, except for Adultery, is not only to transgress the precept of Christ, but to destroy the work of God. Can you be so hard hearted as to commit your children to a step-mother, and that in their mother's life time? Suppose the wife does not marry another, how can you dislike a person who continues faithful to you, although you act unworthily to her? And if she does marry, does not the blame of her being an adulteress fall upon you, since, by your unjust dealing, you compel her thus to act ?"*
The Apostolical Canons contain an express prohibition of a second marriage after Divorce. The Popes . Siricius, Innocent, Leo, Stephen, and Zachary, in their Decretal Letters, strenuously condemn such marriages, and give them the name of Adultery.
But we must not pursue this part of the history at present, it more. properly belongs to the next head of the Essay ; and, under this, there yet remain to be noticed the Enactments of the Christian Emperors, to be col
lected from the Institutes, the Digests, and the miscellaneous Decrees.
By the Institutes, we find the definition of the crime much more restricted than that which is given by the Fathers. The latter is that which has been given of it throughout the Essay. The Institutes,* however, limit the crime to the married woman. The terms are “ Adulteria est alieni thori violatio, sive coitus cum alienâ uxore factus.” Distinguishing it from the crime stuprum, “ Quod cum virgine, vel viduâ fit,” by saying, “ Jure civili, Adulterium cum nuptâ tantum committitur.” But by the canon law, Vinnius adds, it is otherwise; “ Jure autem canonico committi intelligitur, sive solutus cum conjugatá, sive conjugatus cum solutå, aut conjugatus cum conjugata.” These widely differing opinions are attempted to be each supported by reference to the sacred writers. The Institute states, that, “ Adulteri dicuntur alienarum nuptiarum temeratores ;” and that this definition, “a sacra scripturâ veteris Testamenti non abhorret;" referring to Levit. xx. 10.; Deut. xxii. 22.; and Gen. xxiii. While the Canonists embrace the more extended interpretation of the crime; (hanc sententiam omnes fere Theologi
* Vid. Vinnii Com. Instit. Justin. Lib. iv. tit. 18. p. 903.
plectuntur,) and support it by reference to Matt. xix. 9.; Mark x.; and Luke vi. 18.; besides the strong passage in 1 Cor. vii.
It is, on the clear and equitable parallelism of the reciprocal duties and relative rights of the two parties as established by the Saviour, asserted again by his Apostles, and not less concurring with the suggestions of natural law than with the almost unanimous opinions of the Fathers of the Christian Church, that the understanding received throughout this Essay of the nature of the crime of Adultery, has been founded, and is considered to be that which would extend it to mean the violation of the nuptial contract by either party; and no matter with whom; “ Conjugatus cum solutâ, vel conjugatâ ; conjugata, cum conjugato vel soluto.” One of the parties must be under the matrimonial vow. This is essential to the crime - accessio ad alterius thorum;" but then it may be varied in a three-fold manner; “ ex parte viri, vel feminæ, vel utriusque.” The one may certainly become a crime of deeper and more complex dye than the other; yet is the latter justly deserving of the name of this crime; the one may be double, yet is the other single Adultery.
While remarking the distinctions of terms, we may observe the three kinds of separations in the civil law. Two of these could hardly be termed Divorces; the first was a separation pronounced between parties whosemarriage engagement was not considered legally contracted. The sentence or decree of the Judge declared the contract “nullum et irritum ab initio.” These separations were not so much dissolutions of the marriage contract, as judicial declarations that there never had been any contract at all; for the very foundation of the contract was a supposition that no legal let or impediment existed to the valid solemnization of it; and the reason of this distinction is plain: the cause of action, in the one case, preceded the tie of the obligation ;* in the other cases, now to be mentioned, it followed that tie.
The second kind of separation alluded to, was that termed Repudium. The difference between Divortium and Repudium was this. Upon the principle, “ Consensus non Concubitus facit matrimonium," a marriage by the civil law was so far considered binding, that when the contract of the sponsalia was made,
* " Hujusmodi copulatio non est matrimonium, sed Adulterium, seu potius incestus. Non causa Divortii a vinculo matrimonii, sed potius, (quia ab initio non fuit matrimonium,) causa nullitatis matrimonii.” Oughton, Tit. 193.