The teaching of the Church in the West in this period is not different from that of the prevalence of which in England we have already written. Again, there are slight and occasional exceptions to the rules ordinarily laid down. In the year 506 the Council of Agde, without making any express statement on the subject, appears to imply that for some causes divorces may be granted and remarriages allowed by the Bishops. The national assembly convened by King Pepin at Verberie in 753, the decrees of which may have met with the acquiescence of the ecclesiastical authorities, allowed a separated husband or wife to marry' under circumstances of different kinds. Four years later the Council of Compiègne allowed remarriage, not only in cases where separation had taken place because of leprosy or incestuous adultery, but also if one of the parties had entered a monastery, or if a vassal on leaving his lord had left at the same time the wife

1 Canon 25: Those laymen who by a grievous fault are dissolving, or even have dissolved, the conjugal partnership, and who, without credibly declaring any causes of divorce, are dissolving their marriages for this reason, that they may take to them unlawful or strange connexions, if they have cast away their wives before they have stated the causes of divorce before the Bishops of the Province and before the wives have been judicially condemned, are to be excluded from the communion of the Church and the holy congregation of the people, because they defile their faith and their marriage unions' (Hi vero sæculares qui conjugale consortium culpa graviore dimittunt, vel etiam dimiserunt ; et nullas causas discidii probabiliter proponentes, propterea sua matrimonia dimittunt, ut aut illicita, aut aliena præsumant; si antequam apud episcopos comprovinciales discidii causas dixerint, et prius uxores, quam judicio damnentur, abjecerint; a communione Ecclesiæ, et sancto populi coetu, pro eo quod fidem et conjugia maculant, excludantur'). See Hardouin, ii. 1001.

2 The wife might 'marry' because of incestuous adultery on the part of the husband. The husband might marry,' if his wife had conspired against his life, or if she refused to go with him when he was obliged to leave his own country. See canons 2: Si aliquis cum filiastra sua manet, nec matrem, nec filiam ipsius potest habere; nec ille, nec illa aliis se poterunt conjungere ullo unquam tempore. Attamen uxor ejus, si ita voluerit, si se continere non potest, si posteaquam cognovit quod cum filia sua vir ejus fuit in adulterio, carnale commercium cum eo non habet, nisi voluntate abstinet, potest alio nubere'; 18, 'Qui cum consobrina uxoris suæ manet, sua careat, et nullam aliam habeat: illa mulier quam habuit, faciat quod vult'; 5, 'Si qua mulier mortem viri sui cum aliis hominibus consiliavit, et ipse vir ipsius hominem se defendendo occiderit, et hoc probare potest; ille vir potest ipsam uxorem dimittere, et si voluerit aliam accipiat'; 9, 'Si quis necessitate inevitabili cogente in alium ducatum seu provinciam fugerit . . . ; et uxor ejus, cum valet et potest. . . eum sequi noluerit... ille vir ejus . . . si se abstinere non potest, aliam uxorem cum penitentia potest accipere.' To canon 18 the words 'Hoc ecclesia non recipit' are added. See Hardouin, iii.

1990-2.

whom his lord gave him.' A canon attached to the canons of the Council of Worms of 868 allowed, among other relaxations, the 'marriage' of a woman who had put away her husband because of her discovery of his incestuous adultery prior to his marriage with her. The Council of Soissons of 744,3 and a canon passed by a Roman synod in 826 and ratified by another Roman synod in 853, used language which is difficult to interpret, but which may have

1 Canons 16 (leprosy); 8, 14, 15 (incestuous adultery); 13 (monastic vow); 6, 'Homo francus accepit beneficium de seniore suo, et duxit secum suum vassallum; et postea fuit ibi mortuus ipse senior, et dimisit ibi ipsum vassallum: et post hoc accepit alius homo ipsum beneficium; et pro hoc ut melius potuisset habere illum vassallum, dedit ei mulierem de ipso beneficio, et habuit ipsam aliquo tempore: et dimissa illa reversus est ad parentes senioris sui mortui, et accepit ibi uxorem, et modo habet eam. Diffinitum est, quod illam quam postea accepit ipsam habeat.' See Hardouin, iii. 2005-6.

› Canon 63: 'Si quis cum matre et filia in adulterio mansit, nesciente matre, quod cum filia mansisset: similiter et filia nescia, quod cum matre mansisset: et postea ille vir si acceperit mulierem, dimittat eam, et usque in diem mortis suæ non habeat uxorem. Et illa mulier, quam reliquerit, accipiat virum: et illa mater et filia, cum quibus in adulterio mansit, ambabus nescientibus, quod cum matre et filia mansisset, habeant viros. Nam in notitiam illarum si venerit hoc scelus, dimittant maritos, et agant pœnitentiam: et illarum mariti et illi posteriores, accipiant mulieres. Similiter et de duabus sororibus, qui cum una in adulterio mansit, et aliam in publico accepit, non habeat mulierem usque ad mortem. Et illæ duæ sorores nescientes, accipiant viros: et si in notitiam eis venerit forma superior servetur.' See Hardouin, v. 745.

...

3 Canon 9: 'We ordain that . . . no one take the wife of another while her husband is living, and that no woman take another husband while her own is living; because a husband ought not to send away his wife except for the cause of discovered fornication' ('Constituimus, ut .. nec marito vivente suam mulierem alius accipiat, nec mulier vivente suo viro alium accipiat: quia maritus mulierem suam non debet dimittere, excepto causa fornicationis deprehensæ'). See Hardouin, iii. 1934. Bishop Kingdon comments on this canon that it seems doubtful, for though the dismissal for adultery is seemingly acknowledged, the remarriage is forbidden unconditionally. It probably intends to forbid remarriage, though separation is allowed' (p. 34). The extraordinary character of the Latin of the canon will be observed. King Pepin, after the Council, referred the question of remarriage after separation to Pope Zacharias, who replied that both parties were to remain unmarried or be reconciled to each other. See his Epistola vii. 12, in Hardouin, iii.

1903.

4 Canon 36: 'Let no one be allowed, except for the cause of fornication, to leave the wife who is joined to him and then unite with another : otherwise it is expedient that the transgressor be united in his former wedlock' (Nulli liceat excepta causa fornicationis adhibitam uxorem relinquere, et deinde aliam copulare: alioquin transgressorem priori convenit sociari conjugio'). See Hardouin, v. 69. Here, again, the doubt is whether 'excepta causa fornicationis' is to be taken with 'aliam copulare' as well as with 'uxorem relinquere.'

meant that in a separation because of adultery the person who had not committed adultery was free to contract a fresh 'marriage.' Of these instances the decision at Agde is obviously a concession weakly made by the Church to secular law; the canons of Compiègne and of Verberie, if the latter was accepted by the Church, show the influence of the sunshine of secular favour' which Mr. Watkins regards as 'the most potent of all instruments for the undermining of the Church's loyalty' (p. 389); the Council of Worms, if the canon referred to belongs to that Council, is legislating for a case so horrible that it may easily have led into inconsistency those who would ordinarily have maintained the indissolubility of marriage; the meaning of the decisions at Soissons and Rome is most uncertain.

On the other hand, there is evidence of the greatest clearness that by the ordinary law of the Western Church neither party in a Christian marriage once validly and completely contracted was under any circumstances free to contract another marriage so long as the other should live. The decrees of the Councils of Friuli and Toul,3 of

1 But too much should not be based on the Council speaking of the Arian Alaric II. in the following terms in the præfatio: 'Cum in nomine Domini, ex permissu domini nostri gloriosissimi, magnificentissimique regis, in civitate Agathensi sancta synodus convenisset, ibique flexis in terram genibus, pro regno ejus, pro longævitate, pro populo Dominum deprecaretur: ut, qui nobis congregationis permiserat potestatem, regnum ejus Dominus felicitate extenderet, justitia gubernaret, virtute protegeret.' See Hardouin, ii. 997.

2 Canon 10: 'Though the bond of marriage be broken for the cause of fornication, a man may not marry another wife as long as the adulteress lives, though she be an adulteress . . . For although it is read in the sacred pages of the Gospel that the Lord said that a man may send away his wife for the cause of fornication alone, yet it is not read that it is allowed for him to marry another while she lives; there is no doubt that it is in every way forbidden' ('Item placuit ut, resoluto fornicationis causa jugali vinculo, non liceat viro, quamdiu adultera vivit, aliam uxorem ducere, licet sit illa adultera. ... Nam etsi legatur in sacris evangelicis paginis, sola fornicationis causa dixisse Dominum, dimittere virum uxorem suam: non tamen legitur concessisse aliam, vivente illa, in conjugio sibi sociare: prohibuisse quidem modis omnibus non ambigitur.' See Hardouin, iv. 859-60. The date of the Council was 791 A.D.

3 As shown in the letter written in 860 at the wish of the Council by Archbishop Hincmar of Rheims. The letter is printed in Hardouin, v. 521-38. The main subject of it is a different, though cognate, point, but it contains very express statements of the indissolubility of marriage. And a comparison of the passage Hujus procul dubio sacramenti res est, ut mas et femina connubio copulati, quamdiu vivant, inseparabiliter conjuncti perseverent: nec liceat, excepta causa fornicationis, conjugem a conjuge dirimi' (ibid. 525-6) with, e.g., the passages Legaliter et nuptialiter copulati excepta causa fornicationis separari non possunt ; et VOL. XL.-NO. LXXIX.

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Nantes and Paris,2 are instances of numerous decisions which may be found collected and discussed with great clearness and impartiality by Mr. Watkins (pp. 362-394). And if Pope Gregory II.3 permitted the re-marriage of the husband in the same difficult case which led to hesitation in the 'Dialogue of Egbert,' there is no trace of evidence to throw doubt on the same writer's assertion that this concession' is perhaps the only instance in the whole long line of Roman pontiffs of a failure to maintain' (p. 377) the indissolubility of the bond of Christian marriage.

The only reasonable inference from the investigation of the Church in the West from the beginning of the sixth century to the growth of the canon law is that the canon law faithfully represented on this point the tradition of the Western Church throughout the period.

causa fornicationis separati, aut permanere innupti, aut mutuo debent reconciliari' (ibid. 531); 'Causa autem fornicationis vir aut mulier ab invicem discedentes, propter sacramentum nuptialis conjunctionis, aut innupti quousque alter eorum moriatur manebunt, aut sibi reconciliari studebunt' (ibid. 532); Vinculum conjugale, legaliter et nuptialiter celebratum, indissolubiliter manet connexum, licet fornicationis causa vel quacunque de causa videatur separatum' (ibid. 533), shows the probability of, e.g., the decree of Soissons being rightly interpreted as not sanctioning'marriage' after divorce.

1 Canon 12: If a man's wife has committed adultery . . . let him send away his wife, if he will, because of fornication. . . . But her husband may not on any account take another wife while she lives' ('Si cujus uxor adulterium perpetravit . . . dimittat uxorem, si voluerit, propter fornicationem.... Vir vero ejus illa vivente nullatenus aliam accipiat). See Hardouin, vi. 459. The date of this Council is uncertain. Sirmond (quoted ibid. 462, cf. iii. 985) says that it cannot be so late as 900, and that if anyone likes to refer it to 658, 'liberum esto judicium.' Hefele (Councils, iv. 476, English translation) mentions, without expressing his own opinion, that Pagi and Sirmond refer the canons to 658.

2 I.e. the great Council held at Paris in 829 A.D. See iii. 2 (Hardouin, iv. 1353) A wife is not to be sent away except for the cause of fornication, as the Lord says, but is rather to be borne. And those who marry other wives when their own have been sent away for the cause of fornication are to be marked as adulterers by the judgment of the Lord' (Et quod nisi causa fornicationis, ut Dominus ait, non sit uxor dimittenda, sed potius sustinenda. Et quod hi, qui causa fornicationis dimissis uxoribus suis alias ducunt, Domini sententia adulteri esse notentur'). Compare especially Hertford (673 A.D.), canon 10 (Hardouin, iii. 1017-8); Aix-la-Chapelle Capitulare (789 A.D.), cap. 43 (ibid. iv. 836); Worms (829 A.D.), repeating the decisions at Paris (ibid. iv. 1362); Tribur (895 A.D.), canon 46 (ibid. vi. 453-4); Troli (909 A.D.), cap. 8 (ibid. vi. 526).

3 Epistola . ad Bonifacium Episcopum, 2 (printed in Hardouin, iii. 1858-9): Nam quod proposuisti, quod si mulier infirmitate correpta non valuerit debitum viro reddere, quid ejus faciat jugalis? Bonum esset si sic permaneret, ut abstinentiæ vacaret. Sed quia hoc magnorum est, ille qui se non poterit continere, nubat magis ; non tamen subsidii opem subtrahat ab illa, quam infirmitas præpedit, et non detestabilis culpa excludit.'

Very different was the history of marriage in the East during the same period. The Church, indeed, never acquiesced in the worst features of the marriage laws of the Eastern Empire. Mr. Watkins points out how, though the prohibitions of Justinian of 'divorce by consent' had been 'largely regarded during the twenty-four years during which they had stood unrepealed,' yet 'in 566 A.D. the lawfulness of divorce by mutual consent was again as fully recognized by the law of the Empire as if Christianity had been unknown in it,' and 'for nearly two hundred years the statute books of the Eastern Empire show no sign of amelioration.' In their earnest battle against this terrible laxity he tells us that 'the responsible teachers of the Eastern Church do not appear to have ever swayed,' and that' to them it is due that from the end of the ninth century onwards the laws of the states of Eastern Christendom have continued so far at one with the law of Christ that they uniformly prohibit the ancient licence of consensual divorce' (pp. 350, 352). Yet numerous causes for divorce and the lawfulness of marriage' after divorce were recognized continuously during this period and are recognized at the present time by the Eastern Church.'

1 It is difficult to find authority for any more exact statement about the East. The above, however, indicates sufficiently the difference between the East and the West. At the Council of Florence (A.D. 1439), after the decrees had been signed, eleven questions were asked of the Greeks by the Latins. The tenth of these was: Why do ye separate marriages, since the Lord said "Whom God hath joined, let not man separate"?' (Δι' ἣν αἰτίαν χωρίζετε τὰ ἀνδρόγυνα, τοῦ κυρίου εἰπόντος· οὓς ὁ Θεὺς ἔζευξεν, ἄνθρωπος μὴ χωριζέτω ;), and this inquiry was one of the two to which Dorotheus, the Metropolitan of Mitylene, was unable to give a satisfactory answer. The Pope then addressed both questions to the Emperor, and the Eastern Bishops answered on his behalf that they did not allow separations without good reason (τὰ συνοικέσια ἡμῶν οὐκ ἀλόγως χωρίζονται). See Hardouin, ix. 429–32; cf. Popoff, History of the Council of Florence, pp. 158-9, English translation. The Greek canonists of the twelfth century appear to have regarded the legislation of Justinian as rightly to be accepted by the Church. See Bishop Kingdon's book, pp. 96-7. Alexius of Constantinople is quoted by Dean Luckock (pp. 151-2) as allowing 'marriage' in the case of a divorce for adultery only to the person who had not committed adultery. A statement written by the Archbishop of Athens is printed on p. 35 of the York Report, according to which the Bishops dissolve spiritually' marriages which have been 'legally dissolved' by 'the Court of First Instance; dissolution of marriage is permitted' for 'further reasons' besides adultery; and 'both parties divorced' may 'contract another marriage by ecclesiastical ceremony,' although it is not, strictly speaking, legal' for 'parties who have committed adultery to contract a marriage. A large number of cases in which divorce and remarriage are allowed by the Church in accordance with the secular law are given by Mr. Watkins, pp. 346-62. On the other hand, the Russian writer