Church of Rome made consanguinity within the seventh degree an impediment to marriage; at present it forbids marriage within the fourth degree inclusive. u The old Catholic theory of marriage," says President Woolsey, " was practically a failure in all its parts, in its ascetic frown on marriage, in its demand from the clergy of an abstinence not required from the Christian laity, in teaching that nothing but death could release the mar- ried pair from their obligations. When it sought for impractic- able virtue, and forbade to some what God had allowed to all, it opened a fountain of vice with the smallest incitement to virtue." x
Laws of Protestant Countries concerning Divorce.
It has already been shown that Protestants, making the Scrip- tures their guide, taught that the dissolution of the bond of mar- riage was allowable only for the two offences of adultery and wilful desertion. So far as the churches and their confessions are concerned, this is still the doctrine of almost all Protestant de- nominations. When, however, marriage came to be regarded as essentially a civil contract, it gradually fell under the jurisdiction of the state, and laws were passed varying in different countries, as legislators were influenced by mere views of justice or expe- diency. The legislation of all European nations was greatly influenced by the old Roman law ; and, therefore, when mar- riage was removed from the exclusive jurisdiction of the Church, the laws concerning it were more or less adopted from that ancient code. The Roman laws concerning divorce were very lax. Mutual consent was, even after the Roman emperors became Christian, regarded as a sufficient reason for dissolving the bond of marriage. When the Church gained the ascendancy over the State, and the pope became the virtual legislator of Christendom, divorce for any reason was forbidden ; and when and where the pope in his turn was dethroned, there was a gen- eral tendency to return to the laxity of the Roman legislation.
England. England was an exception to this rule. It discarded less of popish usages than any other Protestant nation. For a long time after the Reformation no special law concerning divorce was passed. The ecclesiastical courts could decree separation "a mensa et thoro," but a full divorce "a vinculo" could be
i Essay on Divorce, by Theodore D. Woolsey, D. D.f LL. D., New York, 1869, p. 127.
402 PART IH. Ch. XIX. — THE LAW.
obtained only by a special act of Parliament. Under the reign of the present sovereign all such questions were removed from the ecclesiastical courts and remitted to a civil tribunal. That tribunal is authorized to grant judicial separation " a mensa et thoro " on the ground of adultery, or cruelty, or desertion with- out just cause for two years and upward ; and dissolution of marriage on account of simple adultery on the part of the wife, or aggravated adultery on the part of the husband. Such divorce gives both parties liberty to contract a new marriage. " On the whole, with serious defects," says President Woolsey, " it seems to us to be an excellent law. It does honour to the Christian country where it is in force, and it is certainly a great improve- ment on the former mode of regulating divorce in England."1 It may be a good law in comparison with the lawlessness that preceded it, and in comparison with the lax legislation of other Protestant nations, but it is not good so far as it is not con- formed to the Scriptures. The New Testament makes no such distinction as is made in this law, between adultery on the part of the wife and the same offence on the part of the husband. And it is not good in not allowing wilful desertion to be a legiti- mate ground of divorce, if, as Protestants almost universally believe, the Bible teaches the contrary.
France.
In France the laws of the Romish Church were in force until the Revolution. That event threw everything into confusion, and the sanctity of marriage was in a great degree disregarded. Under the empire of the first Napoleon, the civil code allowed divorce, (1.) for simple adultery on the part of the wife ; (2.) for aggravated adultery on the part of the husband ; (3.) for outrages and cruelty ; (4.) for the condemnation of either party to an in- famous punishment ; and (5.) for mutual persistent consent. The restoration of the Bourbons put an end to these laws and led to the entire prohibition of divorce.
Germany. Among the Protestants of Germany, the views of the Reformers, as a general thing, controlled the action of the several states on this subject until about the middle of the eighteenth century, when the laws of marriage were greatly relaxed. Goschen at- tributes this change in a great measure to the influence of Tho-
1 Essay on Divorce, p. 178.