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

Amb. in Luc. 1. 8.

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 aliená uxore factus."

from the crime stuprum,

*

Distinguishing it

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 conjugatâ, sive conjugatus cum solutâ, aut conjugatus cum conjugatá." 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 sacrâ 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.

66

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 whose marriage 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.

and before the union of persons had taken place, it was capable of the application of the term dissolution; and Repudium was the word employed to designate the separation of persons in this status in society. Divortium was the separation of persons already married. So the writers have explained these terms: "Divortium inter virum et uxorem fieri dicitur. Repudium vero sponsæ remitti videtur, quod in uxoris personam non cadit. Inter Divortium et repudium hoc interest: quod repudium etiam futurum matrimonium potest repudiare; non recte autem sponsa divortisse dicitur, quod Divortium ex eo dictum est, quod in diversas partes eunt qui discedunt." Repudium, then, was a dissolution of espousals; Divortium a dissolution of marriage. In both, however, a certain form of words was necessary, with various other solemnities; allusion to which has been already made.

In the Divortium, however, a two-fold distinction was observable: the one which merely effected a separation of the parties from the intercourse of the married state; bed, board, and mutual cohabitation, (à mensâ et thoro ;) the other, which was a dissolution of the very vinculum or bond of marriage, and which was for graver causes than the former.

Thomas Aquinas summed up, in a quaint