Page:Decline and Fall of the Roman Empire vol 5 (1897).djvu/549

 APPENDIX 627 by the Emperor Manuel. A similar progress in strictness can be traced in the case of relationships by adoption, hy marriage, and by baptismal sponsorship. In Justinian's law "consent " was enough for the legal contraction of a mar- riage, and further forms were necessary only so far as the dowry was concerned. But under the ecclesiastical influence need was felt of giving greater solemnity and publicity to the marriage contract, and the Iconoclasts prescribed a written form of contract to be filled up and signed by three witnesses, but permitted this to be dispensed with by verj' poor people, for whom it would be enough to obtain the blessing of the Church {evAoyia) or join hands in the presence of friends. The legislation of the Macedonian Emperors maintained the spirit (though not the words) of the Ecloga, in so far as it prescribed public marriages with penalties. And, if the Church made the contraction of marriage more solemn, it made divorce more difficult. It was here that there was the most striking opposition between the law of the Church and of the State, and here the tendency of the Iconoclastic legislation is most strikingly shown. The Church regards marriage as an indissoluble bond, and for a divorced person to marry again is adultery. On the other hand, Roman law, as accepted and interpreted by Justinian, laid down that no bond between human beings was indissoluble, and that separation of husband and wife was a private act, requiring no judicial permission. And persons who had thus separated could marry again. The only concession that Justinian made in the direction of the ecclesiastical view was his ordinance that persons who separated without a valid reason should be shut up in monas- teries, — a measure which effectually hindered them from contracting a new mar- riage. The spirit of the Ecloga is apparent in its full acceptance of the ecclesias- tical doctrine in this point — the indissolubility of marriage. Divorce is permitted only in four cases, and this as a concession to the weakness and wickedness of human nature. The Basilian legislation returned to the Justinianean doctrine, and the antinomj* between the canon and the civil law survives to the present day in Greece. Another question arises when the dissolution of marriage is due to the hand of death ; is it lawful for the survivor to enter again into the state of matrimony ? More than once this question assumed political significance in the course of Im- perial history. The Church always looked upon the marriage of widowers or widows as reprehensible, founding her doctrine on the well-known prescriptions of St. Paul, in 1 Corinthians, chap. vii. A second marriage might be tolerated, but a third was distinctly unlawful, and a fourth — swinishness (so Gregory Nazianzen ; see Zacharia, Gr.-rom. Recht, p. 82, note 200). The civil law re- cognised no such restrictions, and only interfered so far as to protect the interests of the children of the first marriage. But here the ecclesiastical view gained ground. The Ecloga affects not to consider a third marriage conceivable ; the Empress Irene distinctly forbade a third marriage. Basil contented himself with recognising the ecclesiastical penalties imposed on persons guilty of a third mar- riage, but declared a fourth illegal. His son Leo committed this illegality (see above, p. 207) ; but after Leo's death the " act of unity " (TOfxos rrjs fvwafois) of the synod of a.d. 920 confirmed the ordinance of Basil, with the additional re- striction that a third marriage of a person who had children and was over forty years of age was illegal. The influence of the ecclesiastical view of marriage as a consortium vitae can be seen too in the treatment of the property of the married partners. In the Justinianean law, the principle of the elaborate prescriptions for the property of the wife and the husband, for the dos and the propter nuptias doiuitio, is the inde- pendence and distinction of the property of each. The leading idea of the system developed in the Ecloga is the community of property in marriage, — the equal right of each partner to the common stock, however great the disproportion may have been before the contributions of each. Basil returned to the Justinianean system, but the doctrine of the Ecloga seems to have so firmly established itself in custom that Leo VI. found it necessary to make a compromise, and introduced a new system, which was a mixture of the Iconoclastic and the Justinianean doctrines.