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
[Footnote 133: GEFFCKEN, _op. cit._, 52. _Cf._ on this decree and
its use by the canonists ESMEIN, _op. cit._, II, 89, notes.]
Even during the Carolingian era theoretically the state still
maintained the old position. The judgment in a penal action neither
nullified nor enforced self-divorce. In reality, however, the power
of the church in this field was vastly increased at the expense of
the state.[134] For the state then undertook as never before to
enforce the discipline through which hitherto the church had striven
in vain to realize her doctrine.[135] Backed by the state, the
church thereafter had the power to compel a restitution of conjugal
life when a divorce was attempted against her will--a power which
the secular judge had never possessed. Accordingly, "the temporal
divorce jurisdiction of the Frankish empire, so far indeed as one is
justified in speaking of such a jurisdiction, was not abolished by a
legislative act; but it gradually perished through the contradiction
to its own laws in which the state of the Carolings involved
itself when it made the unqualified support of the disciplinary
jurisdiction of the church one of its cardinal principles of
government."[136] Already by the beginning of the tenth century this
process was practically complete.[137] In German lands the diocesan
court of the bishop had become the ordinary tribunal for divorce
causes; and for annulment of the uncanonical separation an exact
formula, the oath of reconciliation, had been devised.[138]
[Footnote 134: "Wenn trotzdem die Zeit der Karolinger als
diejenige Epoche zu bezeichnen ist, in welcher die Kirche den
ihren endgültigen Sieg im Kampfe um das Ehescheidungsrecht
besiegelnden Fortschritt machte, so wird dieser Fortschritt
weniger auf dem Gebiete des materiellen Rechtes als auf
demjenigen des Ehescheidungsverfahrens gesucht werden
müssen."--GEFFCKEN, _op. cit._, 68.
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Elsewhere in the archive
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account