A History of Matrimonial Institutions, Vol. 2 of 3 — John Shaqi
A History of Matrimonial Institutions, Vol. 2 of 3Howard, George Elliott
History
A History of Matrimonial Institutions, Vol. 2 of 3
Howard, George Elliott
Families; Marriage -- History
To analyze the secular laws or ecclesiastical canons relating to
divorce, as they were slowly developed on Germanic territory after
the conversion, is not an easy task; for they reveal a striving
to harmonize in various ways the often irreconcilable elements
of Roman, Teutonic, and Christian ideas. In the first place, the
imperial legislation remained in force for the Roman population,
though in the compilations made under the barbarian kings various
changes are made to satisfy new and complex relations.[87] Next,
the German folk-laws show in many ways the evidences of compromise
with Christian doctrine under the exigencies of practical life.[88]
National sentiment will not suffer the absolute interdict of further
marriage after separation; but the penalties for unjust action
may be made so severe as to prepare the way for the strict theory
of the church. In the Burgundian code, for example, the man who
puts away his wife for any cause other than those named in the
statute must surrender to her his house and all his possessions;
whereas in the West Gothic Interpretation of the Theodosian code
the chapter on which this provision is modeled prescribes a similar
penalty, not for the illegal divorce itself, but for contracting a
second marriage after the unjust repudiation of the first wife.[89]
Accordingly, in these laws one-sided divorce on the part of the
husband is not entirely taken away; but the grounds on which he
may act are more or less restricted in harmony with the scriptural
rules; and the wife is herself given a rudimentary right of
one-sided repudiation when the husband is guilty of very grave
crimes. In the law of the West Goths, for instance, where Christian
influence is more marked than in any of the other codes before the
close of the eighth century,[90] the right of the man to put away
his wife is restricted to the one cause mentioned by Matthew; while
for two scandalous wrongs the woman may repudiate the husband and
contract another marriage if she likes.[91] On the other hand, the
ancient rule that a man cannot be guilty of adultery against his
wife yields very slightly to the Christian principle of equality of
the sexes with respect to the punishment of carnal sins. Generally,
according to the harsh sanction of the ancient law, the guilty
woman as well as her paramour may be slain by the aggrieved.[92]
In theory, as Geffcken insists, a husband in similar case is still
merely responsible for violating the rights of another man; the only
concessions to the Christian teaching being a tendency to check
concubinage and the privilege of the woman, already mentioned, of
repudiating her husband for certain offenses, among which, it may be
noted, intimacy with other women is not found.[93]
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