The Cardinal of Segutium, in his Summa Hostiensis, seems of the same opinion; he says, the judge who pronounces the sentence of Divorce, should give a written record of it, on the same principles which were noticed previously in the Bill of Jewish Divorce. "Debet judex sententiam Divortii partibus tradere in Scripturam publicam redactam, ne filiis susceptis ex secundo matrimonio, probatione deficiente, valeat præjudicium generari."* Cardinal Navarr also says, "Matrimonium contractum cum secundâ post sententiam Divortii, valet. †

But the most remarkable resistance to the tenets of his own church, is made by Sanchez the Jesuit, and one of the highest form; who, in an argument on this subject, confesses that, "ex ipsis Catholicis aliqui existimarunt omnium dissolvi matrimonium quoad vinculum, eo propter Adulterium alterius conjugis separato atque ita licere aliud matrimonium inire, priori conjuge superstite." And then referring to the opinions of others, to Sixtus Senensis, adopting the sentiment of Origen, "asserentem sui temporis Episcopos permisisse alias nuptias uxoribus ob virorum Adul

* Sum. Host. De Divort. lib. iii. n. 11.

Navar. lib. iv. Concil. 1. n. 3.

Sanch. de Matrim. Tom. iii. lib. 10. de Divort. Disp.

teria ab ipsis divertentibus," To St. Ambrose, Tertullian, Erasmus, Cajetan, and Catharinus, he adds, that this was also the judgment of the Greek Church, the Lutherans, and the Calvinists; and even of one of the Popes, (Zacharias the First ;) and, lastly, the Council of Worms, (Vermerias,) "Maritus possit uxorem dimittere, et si voluerit aliam ducere, refertur."

The Catholic doctrine has, however, run in another direction, although it is remarkable, that, notwithstanding these notions of the indissolubility of the contract, the Pope, who, in other cases, was found to arrogate the power of trampling on the laws of both heaven and earth, readily enough granted Divorces to such as were able to pay for them, while (as it has been acutely remarked) the poor suitor could not gain so much as a hearing at the chair of him, who calls himself, servant of servants.

The ancient Franks had been accustomed to put away their wives by consent, and when married persons thus agreed to part, such Divorces were considered lawful. Of course, therefore, separations for serious causes were permitted.

Marculfus, who lived about the middle of the seventh century, has prescribed several forms of letters of this kind of Divorce; and

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from these, it appears, that parties might marry again whom they would.* Though the Roman laws were received in France under Charles the Great, and Lewis the Debonnaire, yet Divorce did not become more common, because the Ecclesiastical Canons of the Councils of Africa, and the Decretals of the Popes, wherein Divorce was expressly forbidden, except in case of Adultery, were followed in this particular; but the master could at any time dissolve the marriage of his slave, and this even after the ninth century.

The restraints, however, above alluded to, in regard to Divorce, were afterwards neglected, and great carelessness followed. In some parts, the ancient strictness remained, and characterized, as well the punishment of crime, as the employment of the remedy. The Burgundians never allowed the wives to forsake their husbands on any pretence whatever; and the men were not suffered to put away their wives, except for the reasons expressed in an Edict of Constantine. In a late period, Margaret of Burgundy, Queen to Lewis Hutin, King of France, was hanged for Adultery; and the ordinary execution of her gallants, not being deemed sufficient, they

Marculfus, lib. 2. formul. 20.

were ordered to be flead alive. Perhaps this severity was, in a degree, attributable to the elevated rank of the offender.

In the Code Matrimoniale of France, there are some curious records of the ancient laws passed in various districts of that country, and of privileges granted by several of the French Kings in reference to the punishments which were to attach upon this crime.

The laws usually prescribed severe flagellations, or public exposures, (fustigatio vel currere nudus per villam,) and the privileges permitted the commutation of these for pecuniary mulcts: in some cases, these fines were heavy; in others, so inconsiderable, as to render the criminal indulgence a cheap enjoy

ment.

The statutes of Bragerac imposed a fine of a hundred sols ;* which, in the early part of the

* "Item. Si quis committat Adulterium, in centum solidos monetæ currentis,erga dominum condemnetur." Art. 86.

Privileges of Granada also, granted by Philip, 1291. confirmed by John, 1350:

"Si aliquis in Adulterio scienter commisso deprehensus fuerit, currat per villam, ut in aliis villis domini nostri regis est fieri consuetum, aut solvat domino nostro regi aut abbati vel eorum mandato, centum solidos Tholosanos, et quod voluerit optionem habeat eligendi," &c. Art. 22.

fourteenth century, would be no trifle. This, in Prissez, near Maçon, an episcopal town of Burgundy, in the province of Saone and Loire, in 1362, was made by King John; "Sexaginta solidos et unum denarium.” While at Castelnaudari, in the province of Aude, in 1367, Charles V. made it " cinque sols seule

Privileges of Montolien, by Philip V. and Charles V. confirmed by Charles VI. 1392 :

"The commutation for the flogging. Sexaginta solidos domino regi pro emenda.” Art. 31.

Privileges of Figeul, by Philip V. confirmed by Charles VI.

1394:

"Fustigentur per villam, et si pœnam prædictam redimere voluerunt, in commune, ut dictum est deprehensi, liceat eisdem super hoc cum nostris gentilibus componere," &c. Art. 41.

Privileges of Montfaucon, confirmed by Charles V. 1395: "Vir et mulier si reperti, spoliati penitus et nudati currant per villam aut currere teneantur, aut solvant sexaginta solidos tholosanos dominis dicti loci," &c. Art. 17.

Privileges of Fleurence. Confirmed by Charles VI.

1396:

"Currat per locum, aut solvat nobis vel mandato nostro decem libra turonenses," &c. Art. 24.

Beauvoir in Dauphiné. Charles VI. 1397:

"Pro Adulterio sexaginta solidi et unus denarius," &c. Art. 10.