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
Already in the Carolingian empire, through co-operation of the
secular authority, the teachings of Augustine had gained a similar
triumph. The ecclesiastical capitularies of the Frankish kings, from
the ascendency of the house of Charles Martel to the consolidation
of the state under Charles the Great, are of especial interest in
this connection, for they prepare the way for the synthetic work
of the canonists. During the dark period of the Merovingian line
any attempt through legislation to deal seriously with divorce or
any similar social or moral problem could scarcely arise; for it
would have meant some restriction of the prevailing licentiousness,
to which all classes were committed. Civil rulers were steeped in
debauchery. The church was apathetic and corrupt. "With the advent
of the Carolingian major domus, the level of morality begins to
rise."[105] Already in 744, at the Synod of Soissons, a royal
capitulary clearly forbids divorce to each spouse, except that a
husband may put away a guilty wife on the scriptural ground; but in
that case whether the innocent person may contract a new marriage we
are not informed.[106] This attempt to enforce the rigid doctrine
of the ancient church seems to have been premature; for a few years
later, at the synods of Verberie (753) and Compiègne (757), rules
much more tolerant are proclaimed.[107] These capitularies possess
more than usual historical interest in view of their "profound and
durable influence" on the final settlement of the law by Gratian and
his successors.[108] Several grounds of divorce with remarriage are
admitted. According to the decree of Verberie, the man whose wife
plots against his life may put her away and take another spouse; but
the divorced woman may not remarry. So also, by the same decree, the
man may form a new marriage, if his wife through love of her parents
or some selfish interest refuses to accompany him when he flees from
danger or is constrained to follow his lord into another duchy or
province. In this case, the woman must remain unmarried while her
husband lives.[109] Again, the Synod of Verberie provides that if
either person in course of the wedded life shall fall into slavery,
the one remaining free is at liberty to marry again when he likes.
"A single exception is admitted which throws a sombre light on the
society of that epoch: if a spouse under pressure of misery has sold
himself as a slave, the partner remaining free, who has shared the
bread thus gained and whom the sale has saved from hunger, is not
entitled to a divorce."[110]
[Footnote 105: GEFFCKEN, _op. cit._, 45, who gives, 44-46, 52-55,
an interesting discussion of the reasons for the absence of
divorce regulations during the Merovingian era.]
[Footnote 106: ESMEIN, _op. cit._, II, 58, 64; GEFFCKEN, _op.
cit._, 55.]
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