THE NEW SCHAFF-HERZOG
of such a separation were the same as those of a real divorce so far as property-rights were concerned; and the separation, like the divorce, 3. In the presupposed legal procedure and de- Roman cree. If the words of Christ with re- Catholic gard to divorce were taken as a legal Church, prohibition of it, the phrase " saving for the cause of fornication " (Matt, v. 32; cf. xix. 9) must necessarily be interpreted as a legal permission of at least perpetua separatio in such a case. The law of the Roman Catholic Church is, accordingly, that upon motion a separation for a definite or indefinite time (temporaria separatio a toro et mensa) is to be granted in case of greater or lesser impairment of conjugal life, in case of temptation to immoral acts or crimes, in case of endangered safety, and the like. Perpetual separation (perpetua separatio), however, can be granted only for adultery or unnatural crimes, although in such cases the motion may be opposed by the plea of compensation (adultery practised by the plaintiff), pandering or connivance, and condonation.
Protestant divorce law had its beginning in the proposition laid down in the appendix to the Schmalkald Articles: " Unjust also is the 4. Divorce tradition which forbids an innocent in the person to marry after divorce " (cf . Protestant H. E. Jacobs, Book of Concord, i. Church. 35i; Philadelphia, 1893). The positive rules which the magistrates were to lay down with the advice of the Church concerning divorce in the strict sense of the term (though the Church itself could make no independent legislation on the subject) were to be based on the relevant passages of the Bible submitted to a conscientious exegesis unhampered by ecclesiastical tradition. The result was to substantiate the words of Luther, in his exegesis of the Sermon on the Mount (Erlangen ed., xliii. 117): "Christ (and, of course, Paul as well) here makes no ruling or enactment like a jurist or regent in things external, but simply as a preacher who instructs the conscience so that the law of divorce may be rightly used." The question is, then, not one of " Scriptural grounds for divorce," as if the Bible assigned certain grounds which granted one married party a legal right to separate from the other and the liberty of marrying again; for even in this sense the adultery of the other party is not a Scriptural ground for divorce. The sole problem, on the contrary, is what forms of actual separation or guilt of the one party, in harmony with the Scripture, should be true grounds for the civil authorities to come to the aid of the innocent party by granting a dissolution of the legal bond of marriage. If, from this point of view, the grounds for divorce be considered those for which a petition for judicial separation would be entertained by the civil authorities for the protection of the sanctity of marriage and the defense of the innocent against the guilty, then the most undoubted Scriptural grounds for divorce are adultery and wilful desertion. These were generally expressly and exclusively recognized as such by the Evangelical agenda of the period of the Reformation. On the other hand, it can not be termed contrary to Scripture that the most recent Protestant law of divorce,
developed with ecclesiastical sanction, permits judicial separation for other reasons, which, like adultery and wilful desertion, imply dolosa fidei coniugalis violatio on the part of one of the married pair.
The remarriage of divorced persons can no longer be impeded by the refusal of the Church to perform the wedding ceremony, though she 5. Remar- must disapprove such unions from the riage of the point of view of Christian ethics. Still Divorced. \ess can she be prevented by the State from wishing to guard her conscience and to lend active emphasis to her Scriptural teachings on divorce. She must be the more earnest in this respect, since she no longer helps to contract the marriage by the wedding ceremony, the latter being [on the continent of Europe] simply a solemn recognition and declaration that the marriage in question is a union in conformity to the divine will, not so much in virtue of the motives with which it is contracted as with regard to objective requirements. This must be the basis of judgment whether the ceremony is to be granted or refused to the divorced; and for this very reason general principles can and must be established, their applicability to individual cases in which differences arise between the officiating clergyman and those who desire the ceremony being determined by the ruling of the Church.
5. Mixed Marriages: Mixed marriages are those contracted between persons of different Christian confessions, especially between Protestants and Roman Catholics. Since they render impossible that perfect harmony between husband and wife which is demanded by the ethical and religious concept of marriage, inasmuch as the family thus founded necessarily comes under the influence of two antagonistic churches, while almost insuperable difficulties arise regarding the religious training of the children, each Church must disapprove of them and dissuade its members from such marriages.
While this should be especially the case with the Roman Catholic Church, it has never regarded mixed marriages as illegal or as lacking sacramental character. Nevertheless, it fully applied the prohibitions of the early Church regarding marriages between Catholic Christians and here- 1. The tics to marriages between Roman Cath- Roman olics and Protestants, despite the fact Catholic that the latter were recognized by the Position. State as members of churches on a par with the Roman Catholic Church, and without regard to the circumstance that these Protestant churches were essentially different from the sects to which the prohibitions in question referred. The Roman Curia accordingly maintained that an obstructing impediment based on general Church laws existed for mixed marriages between Roman Catholics and Protestants. A dispensation for such a marriage could be granted by the pope alone; and by him, generally speaking, only on condition that Protestantism was abjured by the Protestant party to the marriage, with the promise that all children born of the union should be educated in the Roman Catholic faith. Moreover, the full applicability of Roman Catholic canon law to such marriages was asserted on the ground that Protestants belong by baptism to the Roman Catholic Church and are