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 DIVORCE

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DIVORCE

made for it to some degree. Canon v seems also to grant the unauthorized permission for a second mar- riage. It treats of the case in which the wife, with the help of other men, seeks to murder her husband, and he escapes from the plot by killing her accomplices in self-defence. Such a husliand is allowed to take an- other wife: "That husband can put away that wife, and, if he will, let him take another. But let that woman who made the jilot undergo a penance and re- main without hope of marriage." Some explain this canon to mean that the husband might marry again after the death of his first wife, but that the crirninal wife was forbidden forever to marry. This last is in agreement with the penitential discipline of the age, because the crime in question was punished by life- long canonical penance, and hence by jjermanent ex- clusion from married life.

In its thirteenth canon (according to Labbe, VIII, 452; others call it the sixteenth), the Council of Com- piegne gives a somewhat ambiguous decision and may seem to allow absolute divorce. It says that a man who has dismissed his wife in order that she might choose the religious life, or take the veil, can marry a second wife when the first has carried out her resolution. Nevertheless, the intended choice of the state of Chris- tian perfection seems to imply that this canon must be hmited to a marriage that has not been consummated. Hence it gives the correct Catholic doctrine, of which we shall speak below. This must also be the meaning of canon xvi (Labbe, VIII, 453; others, canon xix), which allows the dissolution of a marriage between a leper and a healthy woman, so that the woman is auth- orized to enter upon a new marriage, unless we suppose that here there is question of the diriment impediment of impotence. If these canons were really intended in any other sense, then they are contrary to the general doctrine of the Church. Other canons, in which sepa- ration and second marriage are allowed, refer un- doubtedly to the diriment impediments of affinity and spiritual relationship, or to a marriage contracted in error by persons one of whom is free and the other not free. Hence they have no reference to actual divorce, and cannot be interpreted as a lax concession to popu- lar morals or to passion. It is true that several of the Penitential Books composed about this time in the Prankish regions contain the cases mentioned by these two synods and add others in which the real dis- solution of the marriage bond and a new marriage with another wife might be allowed. The following cases are mentioned in several of these Penitential Books: adultery, slavery as punishment for crime, imprison- ment in war, wilful desertion without hope of reunion, etc. (Schmitz, "Bussbucher", II, 129 sqq.). These Penitential Books had indeed no official character, but they influenced for a time the ecclesiastical practice in these countries. However, their influence did not last long. In the first decades of the ninth century, the Church began to proceed energetically against them (cf. the Synod of Chalons, in the year 813, canon xxxviii; Labbe, IX, 367). They were not completely suppressed at once, especially as a general decay of Christian morality took place in the tenth and early part of the eleventh century. Towards the end of the eleventh century, however, every concession to the ■ laxer practice as regards divorce had been corrected. The complete indissolubility of Christian marriage had become so firmly fixed in the juridical conscience that the authentic collections of church laws, the Decretals of the twelfth century, do not even see the necessity of expressly declaring it, but simply suppose it, in other juridical decisions, as a matter of course and beyond discussion. This is shown in the entire series of cases in IV Decretal., xix. In all cases, whether the cause be criminal plotting, adultery, loss of faith, or any- thing else, the bond of marriage is regarded as abso- lutely indissoluble an<l entrance upon a second mar- riage as impossible.

(d) Dogmatic Decision on the Indissolubility of Marriage. — The Council of Trent was the first to make a dogmatic decision on this question. This took place in Session XXIV, canon v: " If anyone shall say that the bond of matrimony can be dissolved for the cause of heresy, or of injury due to cohabitation, or of wilful desertion; let him be anathema", and in canon vii: " If anyone shall say that the Church has erred in having taught, and in teaching that, accoriling to the teaching of the Gospel and the Apostles, the bond of matri- mony cannot be dissolved, and that neither party — not even the innocent, who has given no cause by adultery — can contract another marriage while the other lives, and that he, or she, commits atlultery who puts away an adulterous wife, or husbanil, and mar- ries another; let liim be anathema." The decree de- fines directly the infallibility of the church doctrine in regard to the indissolubility of marriage, even in the case of adultery, but indirectly the decree defines the indissolubility of marriage. Doubts have been ex- pressed here and there about the dogmatic character of this definition (cf. Sasse, "De Sacramentis", II, 426). But Leo XIII, in his Encyclical " Arcanum", 10 February, ISSO, calls the doctrine on divorce con- demned by the Council of Trent " the baneful heresy" Oueresim deterrimam) . The acceptance of this in- dissolubility of marriage as an article of faith defined by the Council of Trent is demanded in the c»-eed by which Orientals must make their profession of faith when reunited to the Roman Church. The formula prescribed by Urban VIII contains the following sec- tion: "Also, that the bond of the Sacrament of Matri- mony is indissoluble; and that, although a separation tori et cohabitationis can be made between the parties, for adultery, heresy, or other causes, yet it is not law- ful for them to contract another marriage." Exactly the same declaration in regard to marriage was made in the short profession of faith approved by the Holy Office in the year 1890 (Collectanea S.Congr. de Prop. Fide, Rome, 1893, pp. 639, 640). The milder mdirect form in which the Council of Trent pronounced its anathema was chosen expressly out of regard for the Greeks of that period, who would have been very much offended, according to the testimony of the \'enetian ambassadors, if the anathema had been directed against them, whereas they would find it easier to ac- cept the decree that the Roman Church was not guilty of error in her stricter interpretation of the law (Palla- vicini, "Hist. Cone. Trid.", XXII, iv).

(e) Development of the Doctrine on Divorce outside of the Catholic Church. — In the Greek Church, and the other Oriental Churches in general, the practice, and finally even the doctrine, of the indissolubility of the marriage bond became more and more lax. Zhishman (Das Eherecht der orientalischen Kirchen, 729 sqq.) testifies that the Greek and Oriental Churches separ- ated from Rome permit in their official ecclesiastical documents the dissolution of marriage, not merely on account of adultery, but also "of those occasions and actions the effect of which on married life might be re- garded as similar to natural death or to adultery, or which justify the dissolution of the marriage bond in consequence of a well-founded supposition of death or adultery". Such reasons are, first, high treason; sec- ond, criininal attacks on life; third, frivolous conduct giving rise to suspicion of adultery; fourth, intentional abortion; fifth, acting as sponsor for one's own child in baptism; sixth, prolonged disappearance; seventh, in- curable lunacy rendering cohabitation impossible; eighth, entrance of one party into a rehgious order with the permission of the other party.

Among the sects that arose at the time of the Refor- mation in the sixteenth century, there can hardly be question of any development of church law about di- vorce. Jurisdiction in matrimonial affairs was rele- gated, on principle, to the civil law, and only the bless- ing of marriage was assigned to the Chiu'ch. It is true