A %ibrat of Ibtstortc EDITED BY THE REV. WM. C. PIERCY, M.A. DEAN AND CHAPLAIN OF WHITEIANDS COLLEGE, MARRIAGE IN CHURCH AND STATE T. A. LACEY, M.A. LIBRARY OF HISTORIC THEOLOGY EDITED BY THE REV. WM. C. PIERCY, M.A. Each Volume, Demy 8vo, Cloth, Red Burnished Top, 55. net. NEW VOLUMES NOW READY. MARRIAGE IN CHURCH AND STATE. By the Rev. T. A. LACEY,\M.A. (Warden of the London Diocesan Penitentiary). THE BUILDING UP OF THE OLD TESTAMENT. By the Rev. Canon R. B. GIRDLESTONE, M.A. CHRISTIANITY AND OTHER FAITHS. An Essay in Comparative Religion. By the Rev. W. ST. CLAIR TISDALL, D.D. THE CHURCHES IN BRITAIN. Vols. I. and //. By the Rev. ALFRED PLUMMER, D.D. (formerly Master of University College, Durham). CHARACTER AND RELIGION. By the Rev. the HON. EDWARD LYTTELTON, M.A. (Head Master of Eton College). MISSIONARY METHODS, ST. PAUL'S OR OURS ? By the Rev. ROLAND ALLEN, M,A, THE RULE OF FAITH AND HOPE. By the Rev. R. L. OTTLEY, D.D. (Canon of Christ Church, and Regius Professor of Pastoral Theology in the University of Oxford). THE CREEDS : THEIR HISTORY, NATURE AND USE. By the Rev, HAROLD SMITH, M.A. (Lecturer at the London College of Divinity). THE CHRISTOLOGY OF ST. PAUL (Hulsean Prize Essay). By the Rev.S. NOWELL ROSTROM, M.A. (Late Principal of St. John's Hall, Durham). The following works are in Preparation : BIBLICAL ARCHAEOLOGY. By Professor EDOUARD NAVILLE, D.C.L. THE PRESENT RELATIONS OF SCIENCE AND RELIGION. By the Rev. Professor T. G. BONNEY, D.Sc. THE CHURCH AND THE INDIVIDUAL. By the Rev. W. J. SPARROW SIMPSON, D.D. POPULAR OBJECTIONS TO CHRISTIANITY. By the Rev. C. L. DRAWBRIDGE, M.A. MYSTICISM IN CHRISTIANITY. By the Rev. W. K. FLEMING, M.A., B.D. RELIGIOUS EDUCATIONS ITS PAST, PRESENT, AND FUTURE. By the Rev. Prebendary B. REYNOLDS. THE CHURCH OUTSIDE THE EMPIRE. By the Rev. C. R. DAVEY BIGGS, D.D. THE NATURE OF FAITH AND THE CONDITIONS OF ITS PROSPERITY. By the Rev. P. N. WAGGETT, M.A. AUTHORITY AND FREETHOUGHT IN THE MIDDLE AGES. By the Rev. F. W. BUSSELL, D,D. THE ETHICS OF TEMPTATION. By the Yen, E. E. HOLMES, M.A. EARLY CHRISTIAN LITERATURE. By the Rev. WM. C. PIERCY, M.A. GOD AND MAN, ONE CHRIST. By the Rev. CHARLES E. RAVEN, M,A. GREEK THOUGHT AND CHRISTIAN DOCTRINE. By the Rev. J. K. MOZLEY, M.A. THE BOOKS OF THE APOCRYPHA : THEIR CONTENTS, CHARACTER, AND TEACHING. By the Rev. W. O. E. OESTERLEY, D.D. THE GREAT SCHISM BETWEEN THE EAST AND WEST. By the Rev. F. J. FOAKES- JACKSON, D.D. Full particulars of this Library may be obtained from the Publisher. LONDON: ROBERT SCOTT. MARRIAGE IN CHURCH AND STATE BY THE REV. T. A. LACEY, M.A. WARDEN OF THE LONDON DIOCESAN PENITENTIARY, HIGHGATE TOVTO /xe'y a * crrt ' LONDON: ROBERT SCOTT ROXBURGHE HOUSE PATERNOSTER ROW, E.C. M CMXII TO THE BISHOP OF LONDON MY LORD, / dedicate this book to my chief, whose care for the prat" tical wording of the holy institution of which it treats is not the least among the burdens of his heavy charge. I do not ask y ur Lordships permission to publish it, because that it not the custom of our Church, but none the less on that account do I submit my conclusions to the judgment of those who are set over me in the Lord. To teach nothing but what the Catholic Church prescribes or allows is the purpose of Your Lordship's obedient servant, T. A. LACEY September, 1912. 333916 EDITOR'S GENERAL PREFACE IN no branch of human knowledge has there been a more lively increase of the spirit of research during the past few years than in the study of Theology. Many points of doctrine have been passing afresh through the crucible ; " re-statement " is a popular cry and, in some directions, a real requirement of the age ; the additions to our actual materials, both as regards ancient manuscripts and archaeological discoveries, have never before been so great as in recent years ; linguistic knowledge has advanced with the fuller possibilities provided by the constant addition of more data for comparative study; cuneiform inscriptions have been deciphered, and forgotten peoples, records, and even tongues, revealed anew as the outcome of diligent, skilful and devoted study. Scholars have specialized to so great an extent that many con- clusions are less speculative than they were, while many more aids are thus available for arriving at a general judgment ; and, in some directions at least, the time for drawing such general conclusions, and so making practical use of such specialized research, seems to have come, or to be close at hand. Many people, therefore, including the large mass of the parochial clergy and students, desire to have in an accessible form a review of the results of this flood of new light on many topics that are of living and vital interest to the Faith ; and, at the same time, " practical " questions by which is really denoted merely the application of faith to life and to the needs of the day have certainly lost none of their interest, but rather loom larger than ever if the Church is adequately to fulfil her Mission. It thus seems an appropriate time for the issue of a new series of theological works, which shall aim at presenting a general survey of the present position of thought and knowledge in various branches of the wide field which is included in the study of divinity. viii EDITOR'S GENERAL PREFACE The Library of Historic Theology is designed to supply such a series, written by men of known reputation as thinkers and scholars, teachers and divines, who are, one and all, firm upholders of the Faith. It will not deal merely with doctrinal subjects, though pro- minence will be given to these ; but great importance will be attached also to history the sure foundation of all progressive knowledge and even the more strictly doctrinal subjects will be largely dealt with from this point of view, a point of view the value of which in regard to the " practical " subjects is too obvious to need emphasis. It would be clearly outside the scope of this series to deal with individual books of the Bible or of later Christian writings, with the lives of individuals, or with merely minor (and often highly controversial) points of Church governance, except in so far as these come into the general review of the situation. This de- tailed study, invaluable as it is, is already abundant in many series of commentaries, texts, biographies, dictionaries and mono- graphs, and would overload far too heavily such a series as the present. The Editor desires it to be distinctly understood that the various contributors to the series have no responsibility whatso- ever for the conclusions or particular views expressed in any volumes other than their own, and that he himself has not felt that it comes within the scope of an editor's work, in a series of this kind, to interfere with the personal views of the writers. He must, therefore, leave to them their full responsibility for their own conclusions. Shades of opinion and differences of judgment must exist, if thought is not to be at a standstill petrified into an unpro- ductive fossil ; but while neither the Editor nor all their readers can be expected to agree with every point of view in the details of the discussions in all these volumes, he is convinced that the great principles which lie behind every volume are such as must conduce to the strengthening of the Faith and to the glory of God. That this may be so is the one desire of Editor and contributors alike. W. G. P. JL.QNDQJJ. PREFACE IT may be objected that there is in this book more about law than befits a work professedly theological. The criticism is just, and I can meet it only by protesting that I have reduced the legal element within the narrowest pos- sible bounds. Marriage cannot be extricated from its legal environment ; my aim has been to show how, in spite of that environment, the religious and theological aspect of the holy estate may be kept in view. It is useless to ignore facts, but they can be adjusted. I trust, however, that as my book has no claim to be considered a legal treatise, so also it will be found free from any false pretensions of the kind. It is not furnished with any apparatus of legal in- stances, and I have tried everywhere to deal only with the broad features of human law. Not here only have I avoided the appearance of erudition which a copious display of cita- tions may cheaply purchase. Few references will be found at the foot of my pages, those few being almost entirely confined to cases of actual quotation, where authority seemed to be needed for a statement made in the text. What is common knowledge of the well informed, I have usually been content to leave as such. Where reference is made to documents of a more public kind, such as Acts of Councils and Statutes, it seems reasonable to expect that all readers who are competent to verify what is said will know where to find the texts. The occasional mention of ix x PREFACE an author to whom I am indebted for information or for ideas would be invidious, and to mention all would be im- possible. Should anyone think that I have conveyed away without acknowledgment something of his own, let him rejoice to find that he has contributed to the common stock ; I ask for no better usage of what may be mine. It may be well to warn the reader about my use of two words. In this book, as in my little Handbook of Church Law , I have confined the word legal to a precise meaningi Borrowing an idea from authors who carefully distinguish leges and canones, I use it only of that which is ordained by the laws of the medieval Temporalty, or of the State as dis- tinguished from the Church. The English word law has so wide and varied a meaning, covering both ius and lex and ranging from the law of gravitation to the by-laws of a railway company, that a thing may lawfully be called lawful for other reasons, but I call a thing legal only when it has this particular sanction, and with the help of this distinction it is sometimes possible to avoid tiresome peri- phrases. I use the word divorce with equal precision. In my pages it means the breach of marital intercourse by which husband and wife are discharged, with the approval or toleration of lawful authority, from the obligation to live together according to the nature of their union. It means this, and nothing else ; and I am convinced that the word ought to have no other meaning. A decree of nullity ought not to be called divorce, because it is a declaration that in point of fact there has been no binding contract. I do not use the word in speaking of that dissolution of mar- riage, proclaimed by some systems of law, which is supposed to set the parties free to contract a new marriage, because I believe that in point of fact there can be no such thing ; marriage is a natural relation which can no more be dissolved by law than the relation of brother and sister, and I object PREFACE xi to applying a word which has a real meaning to a thing which does not exist. Confusion lies that way. It seemed probable that the Report of the Royal Com- mission on Divorce would be published before my book went to press. This has not happened ; but my loss is the less if I may venture to think that I have anticipated its conclusions. Divorce is a painful necessity of human society ; unnecessary consequences are deduced from it, and I have examined to the best of my power both the necessity and the deductions. I have had two objects. One is to ascertain facts ; the other is to draw from them a policy. The one task I have pursued through many pages ; the other I have attempted in few words. The result of each is remitted to the judgment of the reader, that of the latter more especially to the judgment of the Church. ANALYTICAL SUMMARY CHAPTER I OF MARRIAGE IN THE ORDER OF NATURE PAGE The natural constitution of human society i The creative idea ....... 2 Imperfectly realized ...... Marriage a fundamental institution .... 3 The natural necessity of the family ... 4 Therefore divinely ordered ..... Difficulty of determining details of this ordering . 5 The value of Christian teaching .... Revelation explaining Nature ... 6 The essential nature of marriage . . . ' . . 7 An entire union of man and woman .... For the production and nurture of children . . Its character obscured by the dominance of the male sex ....... 8 The relation of affinity ..... 9 The growth of affection ...... Mutual support a secondary purpose . . 10 Community of goods ...... An exclusive union solius cum sola .... The offence of adultery . . . . .11 Thj^eyil of polygamy Not merely forbidden to Christians . . 12 But contrary to the natural bona matrimonii . 14 Inconsistent with the numerical equality of the sexes ....... 15 And with the well-being of the race . . Indissoluble, except by death . . . .16 A natural union, not destroyed by failure to fulfil its purpose . . ..... 18 Notwithstanding the general practice of mankind to the contrary ...... xiii xiv ANALYTICAL SUMMARY PAGE The opinion that marriage is indissoluble only for Christians ...... 19 The teaching of the Gospel ..... As to the permissibility of divorce . . Privilegium Paulinum .... 20 As to marriage after divorce . . . .21 Effected by contract . . . . . . .25 Between the parties themselves .... P atria potestas and the requirement of parental consent ....... 26 The effect of inability to fulfil the terms of the contract Conditions of a valid contract . . . .27 Right intention ...... Physical capacity . . . . . .28 Freedom from constraint .... And from misunderstanding ... Freedom from previous marriage . . .29 Sponsalia and precontract ... Freedom from ties of kinship The effect of affinity The contract fulfilled by consummation Obligations ensuing .... Equality of husband and wife The natural law of marriage under the sanction of conscience Ascertained by interrogation of Nature ... 34 With the aid of revelation . . . ' . Identical for Christians and for others ... The duty of a Christian man ..... To order his own life by the Divine Law of Nature To maintain the Divine Law in human society . . 35 CHAPTER II OF MARRIAGE IN THE ORDER OF GRACE Marriage a remedy against sin 36 The remedies of grace usually taken from the order of nature ........ And supernaturally endowed . . . . . A Great Mystery 37 The nature of fjmcrrripia . . . . . . Derived into Christianity from Greek sources . . ' Not with any special sense of secrecy. ... As shown by the Latin rendering sacramentum . 39 ANALYTICAL SUMMARY xv PAGE The meaning of a Sacrament ...... 40 A natural thing with supernatural endowment . . And secondarily signum vei sacrae .... Means of Grace ........ 41 The seven sacraments ...... 42 Marriage strictly sacramental . . . . . . Greek analogies . . . . . . . .43 Matter and Form ........ The Rite 44 Not drawn from Jewish sources ..... But taken over from existing practice, especially Roman . The evidence of Tertullian . . . . .45 The evidence of other Fathers .... The evidence of the Sacramentaries ... The evidence of Nicolas I . . . .46 The ancient ceremonies . . . . . .47 Essentials and concomitants ..... 49 The Sacramental Grace 50 Lawfulness of the Act of Marriage .... Aid in the performance of the duties of marriage . 51 Abatement of concupiscence . . . . .52 Marriage a moral instrument employed to this end . 53 The Sacrament of Marriage only for the baptized . . 54 But every marriage of the baptized is sacramental . Contract and sacrament not separable ... And the baptism of the married makes their marriage sacramental ...... 56 The case of one party baptized .... Marriage to be encouraged for its sacramental value . . 57 CHAPTER III OF MARRIAGE IN HUMAN LAW The necessity of a Positive Law of Marriage ... 59 Which may conflict with Natural Law ... And cause a practical difficulty about obedience . . 60 Five modes of variation from Natural Law ... By addition ........ By omission ........' By prohibition of what is allowed . . . .61 By dispensation ........ Absolute . ...... xvi ANALYTICAL SUMMARY PAGE Contingent in case of necessity . . . .61 Applying even to Divine Law ... 62 By contradiction ..... The possibility of ignoring marriage ..... 63 The legitimacy of a power of controlling marriage . . 64 In the State Even as regards the matter of the sacrament . 65 In other forms of society ...... 66 Which may be in conflict with each other . . 68 In the Church Specifically in the episcopate . 71 The twofold task of the Church 72 To teach the world .... -73 To regulate the conduct of Christians . Reluctance of the Church to legislate The case of Callistus Existing systems of Law .... -74 Human Law in contradiction with Natural Law . . -75 Other modes of divergence from Natural Law . Juridical ......... Interpretation of Natural Law .... 76 Evidence of fact 77 Limitation of pleas Legislative. ........ 78 By way of addition .... By way of omission ...... 79 By way of prohibition or impediments ... 80 Obstructive ...... Which may run simultaneously in different systems of law ..... 82 Diriment Objections to the creation of diriment impedi- ments 83 Especially by the State . Answered by the requirement of a legitimate con- tract As denned by different authorities for their several subjects . . . . .85 By way of dispensation 87 Absolute ....... Not applicable to Divine Law. . . 88 Possible with any system of Human Law For the interception of an impediment For relaxing obligations ... ANALYTICAL SUMMARY xvii PAGE For sanatio in vadice ... 89 Applicable within one system to the rules of another system .... The case of Church and State . . 90 The privilege of the Church in England . 91 To be used with caution. ... 92 Contingent ....... 93 Based on a necessity .... Therefore not requiring express legisla- tive sanction. .... But calling for judicial control . . By a power lawfully controlling the acts of the person dispensed . 94 Applicable to Divine Law 95 The nature of necessity in this case . Concerned with the obligations of marriage 96 Divorce ...... In the Christian Church . . 97 Abatement of community of life . 98 Dowry and Settlements . . Morganatic marriage ... 99 Matrimonium conscientiae . . Concerned with Impediments . . .100 Consanguinity ..... Affinity ...... 101 Ligamen . . . . . Simultaneous polygamy . . 102 Successive polygamy . . . 103 The practice of the Eastern Church . . . .104 And of some modern States . 105 Conflict of authorities. . .106 Human Law to be kept within bounds .... CHAPTER IV OF MARRIAGE IN CANON LAW The beginnings of the Christian rule 108 Continuation of the Jewish system .... Prophet and legislator . . . . . .109 Its passage to a developed legalism . . . .no The elements of which were present from the first Christianity in face of Roman Law . . in xviii ANALYTICAL SUMMARY PAGE The Jewish Law of Marriage . . . . . .112 The contract 113 Its formalities ....... Impediments ........ Divorce ......... 115 The Law theocratic But amended in the preaching of the Gospel . 116 The original Christian Law . . . . .117 Restraint of divorce ....... Disciplinary control . By pastoral methods ..... Not setting aside the Civil Law . . .118 But admitting dispensation .... From Natural Law From Civil Law . . . . . .119 From canonical requirements . . .120 The Christian Empire ...... The Civil Law modified in a Christian sense But imperfectly .... .121 The continuing distinctness of the Christian rule Relations of Church and State Eastern Canon Law ........ 122 The Quinisext Council in Trullo .... Distinctness of Church and State . . . .123 Growing predominance of Canon Law . . .124 Its codification - Nullification of irregular marriages . .125 Impediments and Dispensations Divorce and remarriage . . .126 Espousals ....... 128 Marriage of the clergy .... Legal control of marriage by the Church Western Canon Law .129 Results of Barbarian conquest ..... The disciplinary stage . . .130 Work of Bishops and Councils Of the Popes .... . . 131 St. Gregory the Great and England Church and State in disagreement . . .132 Mixed jurisdictions ..... The Respublica Christiana ... 133 The working unit of Christendom. ... Spiritualty and Temporalty . . . 134 Control of marriage by the Spiritualty . ANALYTICAL SUMMARY xix PAGE Cause of this development . . . . 135 Codification 136 Dionysius Exiguus and other collectors. The Decretum of Gratian Its immediate effect 137 The Corpus luris Canonici . . . . .138 The development of legalism 139 Abuse of spiritual censures . . . . Evils of a theocratic system . . . .140 Checks on the lus Commune . . . . .141 Consuetudo ........ The case of England Legitimation per subsequtns matrimonium . 142 Administration of marriage law 143 Diocesan . . . . . . . . Exempt places ...... Appeals and Reservations . ... -144 The supposition of the Papacy ... Dispensations 145 Procedure on validity of marriage ... Pro salute animae . . . . . .146 Process of divorce Coercive methods. . . . . . .147 Later legislation Restriction of impediments 148 Computation of consanguinity ... Regulation of affinity 149 Limitation of Divine Law . . . . .150 Recognition of marriage de facto .... Classification of impediments . . . . 151 Tempus feriatum . . . . . .152 Diriment impediments . . . . 153 Disparitas cultus . . . . .154 Vows of continence. .... Holy Order ...... 155 Consanguinity and affinity . . 157 Cognatio spirituals ..... Publica honestas . . . . .158 Crime . . . . . . . Weakening effect of dispensation . . . 159 And of frequent nullities .... Moral failure of the medieval Canon Law* . 1 60 Restraint of clandestinity . ..... By penitential censures 161 xx ANALYTICAL SUMMARY PAGE As an obstructive impediment . . .161 As a diriment impediment .... Objections to this ..... Disruption of the Respublica Christiana . . . .162 CHAPTER V OF MARRIAGE IN THE MODERN STATE The modern state of Western Europe . . . .163 Developed out of the elements of the medieval polity The communitas perfecta . . . . .164 The theory of imperialism ..... Under the impulse of the Reformation . . .165 The teaching of Luther Reception of Roman Law .... The teaching of Calvin 165 Separateness of the Church .... The Jesuit theologians 167 Church and State each perfecta societas Marriage under the new conditions 168 Lutheran : exclusively civil ..... Calvinist : regulated by Divine Law, administered by the State 169 Partial acceptance of human law . . . .170 Divorce ........ 171 The result of crime 172 Involving dissolution of marriage . . .173 Wide extension of Reformed theology and law . 174 The Counter- Reformation . . . . . 175 Canon Law continuing to operate. But in the Church as a separate society To which the control of marriage is left by the State . 176 The special case of England 177 A continuing fragment of the medieval polity . Resistance to Jesuit and Puritan separatism . 1 79 The policy of the Test Acts . . . .180 Church and State not entirely separate until 1828 Marriage controlled by the Spiritualty . . .181 In spite of the legislation of Henry VIII Further legislation by the Spiritualty . . 183 Also by the Temporalty ... .186 Settlements in equity ..... The crime of bigamy ANALYTICAL SUMMARY xxi PAGE The divorce of Lord Roos . . . .187 Restraint of clandestinity . . . .189 The Marriage Act of 1753 . . . .191 The complete separation of Church and State . . . . 193 Tendency towards a civil law of marriage . . .196 Civil Marriage . . . . . . . .197 In France ........ In Europe generally . . . . . .199 In England ...... Other arrangements ...... 200 Divorce ......... 201 Impediments y. ...... 205 The Present Position 206 Antagonism of Church and State .... Civil marriage ....... Impediments 208 Divorce ........ 209 Injurious to public morals . . . . . .211 The result of history . . . . . . .212 A modus vivendi to be sought ..... Distinction of functions . . . . .213 Return to spiritual discipline .... Importance of the decree Ne temere . . .215 The need of an uniform system . . . . .219 On the basis of Natural Law .... 220 With the least possible interference of human law . The duty of a Christian . . . . . . .221 In the ordering of his own conduct .... In support of the authority of the Church . . .222 Especially for discipline . . . . . Particular needs of England .... In support of the authority of the State . . . 224 Reformation of laws ...... Particular needs of England . . . .225 In promotion of mutual toleration of Church and State . 226 APPENDIX A 1. The Decree Ne temere ...... 227 2. Subsequent Decrees . . . . . . 231 APPENDIX B Letter of the Archbishop of Canterbury . . . 232 APPENDIX C A proposed mode of Contracting Marriage . 236 MARRIAGE IN CHURCH AND STATE CHAPTER I Of Marriage in the Order of Nature MARRIAGE is described as "an honourable estate instituted of God in the time of man's innocency." Translated into less symbolic language, this means that marriage is an integral part of the natural order in which human society is constituted. That state of things is natural in which man finds the fullest and most satisfac- tory development of his nature. But this is possible only in a social order. As a mere individual, man can hardly exist at all, and certainly cannot live the fulness of his life. Some kind of community is necessary for him, and that kind of community in which genuine human functions are best fulfilled is the kind properly natural to him. Aristotle, therefore, conceiving the Greek city as the final and perfect form of human society, described man as " naturally a civic animal." Historic proof that no one form of organization is exclusively necessary for humanity compels the enlarge- ment of this description ; but the principle on which it was based remains true, and we may recast it into the aphorism that man is naturally civilized. The truth of this must be M.C.S. l B 2 OF MARRIAGE IN THE ORDER OF NATURE maintained on two faces. On the one hand, civilization is not an artificial addition to man's natural endowments ; on the other hand, the true natural man must not be sought in the state of savagery, but in the most complete state of civilization of which he is capable. This complete state is doubtfully ascertainable. Ethics and politics are not exact sciences. We must suppose a creative idea, a divine purpose, to which human life more or less remotely conforms. This imperfect conformity is one of the chief perplexities of nature. For the most part we see life maintained in stable conditions, with specific characters ; we can find traces of a progress by which those characters have been attained, but a point is reached where they seem to become fixed ; the species is unalterable, breeding true and transmitting habits liable to little or no variation. The human species has such determined charac- teristics, but has also other characteristics remarkably vari- able. Human life is not in a stable condition, like that of most animals ; human society has not reached a static con- dition, like that of bees or of ants. The divine purpose is imperfectly fulfilled, by reason of the element of perversity which is perceptible in human nature, and which is theolo- gically attributed to a falling away from original righteous- ness, or conformity to the creative idea. If there is progress towards the ideal, there is also deterioration ; if there is growth there is also decay. There is not, as Aristotle thought, one fixed standard of civilization, though such a standard may conceivably be attained. But none the less certain fundamental institutions can be made out, which are almost constant in human life, though subject to wide variations in detail ; and in most cases an ideal can be ascertained, the practice falling short of it, or being deflected from it, in varying degrees. Such an institution is marriage. Marriage is not an artificial regulation of human life, but A FUNDAMENTAL INSTITUTION 3 a natural necessity. The continuance of the species re- quires a certain association of man and woman. For the mere begetting of children, a merely passing union would suffice ; but more is required. The child requires close attention and long continued care. This is seen in the case of some other animals also, but nowhere in the same degree. For most of such cases, the ordinary provision of nature is a close association of the parents during the growth of the offspring, the female devoting herself almost entirely to them, the male guarding her and supplying her needs. This double parental instinct varies in strength ; it is probably seen at its intensest in man. But here it is reinforced. Unlike other animals, man gives birth to fresh offspring while those already born are still entirely depen- dent on the parents. It follows that a temporary union, having in view the bearing of a single child and terminable when the child is able to go alone, will not suffice ; child- bearing goes on for several years, while the firstborn and others are slowly growing to maturity. The connexion of the parents, therefore, is indefinitely prolonged, extending even beyond the age of child-bearing. There results a com- munity of interests, an interlacing of habits. As a conse- quence of this prolonged intimacy there appears the singu- lar phenomenon of human love, which touches on the one hand the ordinary sexual desire of the animal world, but extends on the other hand into an habitual affection from which the element of desire may be entirely eliminated. In the same way the parental and filial affections of the human species pass the bounds even of the most devoted care shown by those animals which part from their young after a brief period of protection. In a word, the human species is naturally constituted in families. Marriage is nothing else but this permanent connexion of man and woman for the purpose of producing and raising V 4 OF MARRIAGE IN THE ORDER OF NATURE children. Being thus natural, it is divinely ordered ; all that can be ascertained to be necessary for its natural per- fection will be recognized as prescribed by God. The ele- ment of perversity in human nature forbids us to suppose that all the divine prescriptions will be exactly or generally observed ; the divine law of marriage cannot be recon- structed by a mere codification of human practice ; we must look for many aberrations. It is useless to attempt to go behind social developments and investigate the habits of primitive man, for primitive man is inaccessible ; those savage tribes whose civilization is most elementary are, in respect of marriage, bound by elaborate rules, the out- growth of agerlong custom ; and, since marriage is an affair only of adults, we cannot find traces of its original form in those vestiges of a remote past which physiology teaches us to recognize in the instincts of children. But the in- evitable imperfection of an historical survey matters little; it is not the beginning of marriage that we should consider, but the end ; the growth and decay of social conventions shows man struggling to achieve what nature dictates ; in his efforts, even the most halting, we shall find traces of the formative idea ; the more perfect civilization will ap- proach nearer to the ideal, and a failing civilization will be marked by fresh aberrations. A purely historical study of this kind may be expected to give valuable results, but they will be dashed with un- certainty. What is the standard by which we are to mea- sure the higher civilization, and how shall we note the turning point to a downward course ? It is a common practice to make the treatment of marriage a criterion, and we are involved in a vicious circle if we simultaneously determine the true nature of marriage by reference to civi- lized practice. It is difficult to compare two civilizations differing in time and place and conditions ; men pass a DIVINELY ORDERED 5 favourable judgment on their own customs, and the greatest complacency has prevailed at times in which history sees evidence of general decline and retrogression. If the true nature of marriage can be ascertained only from the cur- rent practice of human society, that will seem true which a self-satisfied generation finds to its taste ; history may correct the judgment, but cannot guard against new errors. There is no finality in the flux of human opinion ; man cannot attain the ordered state of creatures which he reckons incomparably inferior. Christianity opens a way out of this intolerable laby- rinth. The Christian is confident that he has the express guidance of God in the more difficult passages of his moral life, and particularly in respect of the true nature of mar- riage. Since no man is ever merely individual, the redemp- tion of man means not only the deliverance of the indivi- dual from the effects of sin, but also the reconstitution of human society according to the Will of God. In the Chris- tian scheme, neither result is brought about by a mere act of omnipotence ; grace is given by which man may work out, through many temptations and failures, his own salva- tion. Grace and truth go together ; sufficient knowledge of the Divine Will is needed if its fulfilment is to be achieved. Therefore a declaration of the purpose of God in regard to human life is a part of the Christian scheme. It is not detailed, categorical, all-embracing ; it is not a law of ordinances ; it affords just so much light as may enable men to walk warily. The revelation of God through Jesus Christ touches some things naturally unknowable ; it touches chiefly things knowable but obscure. St. Paul, indeed, seems to deny the obscurity. " That which may be known of God is manifest," he says ; " for from the creation of the world His unseen things are perceived and understood by means 6 OF MARRIAGE IN THE ORDER OF NATURE of His works." 1 Ignorance therefore, he would say, is inex- cusable, being due to human perversity. That is an ex- tremely severe judgment, designed to bring home to the conscience the general guiltiness of man ; it does not alter the fact that to ordinary men of perverse minds, if not to the human mind in its integrity, the purpose of God is obscure, and the definite principles of their own social exis- tence are hard to seek. The Christian revelation throws new light on the social order of humanity. The nature of revelation, as touching these things, can- not be misunderstood. They are things in the order of nature, being ordered as such by God. A revelation from God will not, therefore, proclaim a new law ; the will of God has been imposed on nature from the first, and the divine law was legible in nature, however imperfectly read. We must not suppose a less perfect law of nature superseded or completed by a more perfect law of revelation. The divine law is one and continuous, in nature and in revela- tion. 2 The divine law of marriage is nothing else but the order of nature. Revelation does but enable us to under- stand it more perfectly. We therefore find that our Lord Jesus Christ, when asked a question about the divine law of marriage, referred to what had been done " from the beginning." This beginning He was content to describe in the language of the Book of Genesis. It must not be inferred from this that a rule propounded in the Scriptures of the Old Testament, even with the highest sanction, is necessarily an expression of the Divine Will ; for our Lord immediately afterwards told 1 Romans i. 19-20. 2 Cp. Isidore, Etym. v. 4: lus naturale est quod in lege et in evangelio continetur. More comprehensive is the definition of the Institutiones, lib. iii., tit. 2. lus naturale est quod natura omnia animalia docuit. THE ESSENTIAL NATURE OF MARRIAGE 7 the same questioners that a certain regulation of the Mosaic law was a mere concession to human perversity and the hardness of men's hearts, in derogation from the creative idea of God. 1 It is only in the teaching of the Gospel, in the genuine Christian tradition, that we have a conclusive declaration of the divine purpose. With this help we have to determine more particularly the true nature of marriage. Marriage is an entire union of man and woman. For the purpose of generation, a momentary connexion suffices, with complete separation following. In a highly artificial society, such as that conceived in the Republic of Plato, children so born might be reared in common, as foundlings and orphans are actually reared in most civilized commu- nities. But this would be a frustration of the natural in- stinct of parentage, and the practical evils flowing from it are sufficient proof that the suppression of that instinct is not an advance in the line of natural development. A partial union, directed exclusively to the business of raising children and allowing the separation of man and woman in regard to other interests, may suffice for the material needs of the offspring ; such connexions are not unfre- quent in societies where artificial distinctions of rank hinder a closer union ; but the moral influence of one parent is inevitably weakened, and the full purpose of guardian- ship is not attained. This can be achieved only when the parties to the union enter fully and unreservedly into one another's lives, or rather into a new joint life which they share on equal terms. In the words of the Roman jurist, marriage is viri et mulieris coniunctio individuam vitae con- suetudinem continens* St. Paul insisted that carnal copulation, even of the most transitory kind, effects a real union : "He that is joined i St. Matthew xix. 4-8. 3 Instit., lib. i., tit. 9- 8 OF MARRIAGE IN THE ORDER OF NATURE to a harlot is one body/' x The natural conjunction is evident when it produces offspring, derived inseparably from the two parents, and the Apostle applies the maxim, " The two shall become one flesh." This emphatic judg- ment has left its mark on the ecclesiastical law of affinity. If a connexion so transitory, entered upon for the mere gratification of appetite without any but the most acci- dental regard for the procreation of children, can be thus described, much more does the description fit the perma- nent union of husband and wife for the full purpose of mar- riage. To this the maxim originally applied, and with that application it was incorporated by our Lord into His own teaching.* This merging of two lives into one has been obscured by a one-sided conception of the relation, due to the prac- tical superiority of the man over the woman. His greater strength, activity, and publicity, contrasting with the com- parative retirement necessary to a woman engaged in the task of child-bearing and nurture, have made it seem, com- monly though not universally, that the wife is absorbed into the family of her husband. A result is seen in the practice of the Roman law, by which a wife passed from the patria potestas of her father to that of her husband, or to that of his father if he himself were not yet discharged. Similar ideas pervade the marriage customs of almost all races, in whatever degree civilized. They have some foun- dation in nature, since they rest on the normal conditions of sex, but they depart from nature in their denial of the individuality of the human being. This individuality is no less characteristic of human life than the social order without which human life is impossible ; in marriage, rightly understood, the two characteristics are equally 1 i Corinthians vi. 16. 2 St. Matthew xix. 5 ; St. Mark x. 8. THE RELATION OF AFFINITY 9 recognized ; an individual man and an individual woman coalesce into a conjoined life, becoming an individual pair from which springs a new society. Marriage is properly a discharge from parental control ; husband and wife, without loosing the natural ties of blood connecting them severally with their former kindred, pass away from the families in which they were bred to form in their union a new family. It is the teaching of the Gospel, appropriating once more and reinforcing an ancient maxim. Not the woman alone, but also the man, " shall leave his father and mother, and shall cleave to his wife ; and the two shall become one flesh." From this coalescence it follows inevitably that the hus- band becomes akin to the kindred of his wife, in the same degree as herself, and she to his. What the more usual practice of mankind acknowledges only in the case of the woman is true also by parity of nature in the case of the man. The relation known as affinity is no less natural than that of consanguinity. This close union of husband and wife has the further consequence of engendering a new kind of natural affec- tion. The tie of near kinship is felt for a time by animals of many species ; with men, bred and nurtured in families, it subsists longer and even extends beyond a generation ; a man and a woman bind themselves together in wedlock with a feeling of peculiar intensity. Sexual attraction, which affords the natural impulse to marriage, passes into a love rooted and established in habit. It has been well said that a wife's love for her husband becomes above all love for the father of her children ; frustration of motherhood sometimes produces deplorable disorders, but the bare intention of procreating children in common, even if disap- pointed, will bring about a sense of identity, of a single purpose in life, which makes the closest bond of human io OF MARRIAGE IN THE ORDER OF NATURE affection. " Husbands should love their wives," says St. Paul, " as their own bodies. He that loves his wife loves himself ; for no man ever hated his own flesh, but nourishes and cherishes it." 1 Indeed there is here found a secondary cause for the divine institution of marriage: "It was ordained," says the homily in the Form of Solemnization of Matrimony, " for the mutual society, help, and comfort, that the one ought to have of the other, both in prosperity and adver- sity." A marriage unfruitful in children may thus find a place in the economy of nature. From this complete unity of life there seems to follow naturally community of goods. Some degree of community is necessary if the end of marriage is to be attained. The children are a joint charge, and the maintenance of a home can hardly be managed by a partnership of limited liability. The long continuance of an unequal discrimina- tion of law in favour of the husband has obscured in some countries the obvious and equitable requirements of nature, paving the way for an excessive independence in married life ; frequent failures of duty on the part of husband or wife make it necessary in practice to give each of them legal securities against the crime or carelessness of the other ; but community remains the true basis of economics in the family. The formula of marriage, " With all my worldly goods I thee endow," indicates the normal state of things ; and it should in effect be mutual. Marriage is thus, in the order of nature, an entire con- junction of two lives, to be lived as one for the purpose of achieving the end proposed : totius vitae consortium. The marriage-bond is exclusive ; Coniunctio solius cum sola. An adumbration of this principle is seen in the fierce jealousy with which certain wild animals keep their mates 1 Ephesians v. 38-9. AN EXCLUSIVE UNION n to themselves. In men, the instinct of jealousy is reasoned, without losing much of its peremptoriness. Carnal inter- course of husband or wife with another is all but universally recognized as one of the gravest offences against social order ; adultery is a private wrong of so exasperating a char- acter that on grounds of policy it is in many communities treated as a public crime ; elsewhere, private vengeance is condoned, or even permitted. But a very different measure is meted to husband and to wife. The adultery of a husband with an unmarried woman is treated as a minor offence, and the wife's jealousy is seldom justified by law or social opinion if it runs to extreme action ; a wife's adultery is regarded as a much graver wrong. Christian doctrine allows no such distinction, reinforcing the natural instinct of jealousy on both sides alike by indiscriminating condemnation of adultery as a sin at once of luxury and of in- justice ; but this teaching has not succeeded in controlling the social judgments, even of Christian communities. There is, indeed, a difference between the two cases, imposed by nature ; the adulterous wife may put upon her husband a spurious offspring, the adulterous husband can do no such thing. If the sin against chastity is identical in the two cases, the effect of the sin of injustice is greater in one case than in the other ; social custom and law can hardly fail to recognize the difference, and to visit the offence more severely where the wrong done is the greater. But a general condonation of adultery on the husband's part, coupled with deprecation of jealousy on the wife's part, is characteristic of a corrupt state of society in revolt against the dictates of nature no less than against the teaching of Christianity. It destroys the idea of marriage as a conjunc- tion solius cum sola. Equally in conflict with that idea is the legal institution of polygamy. So widespread, however, is this, that it may 12 OF MARRIAGE IN THE ORDER OF NATURE seem rash to declare it contrary to nature, and grave opinions can be quoted in favour of its being permissible by natural law. That of St. Augustine is conspicuous. He takes his stand upon a physiological ground ; plurality of wives, as distinct from plurality of husbands, is not contrary to the nature of marriage, " plures enim feminae ab uno viro fetari possunt, una vero a pluribus non potest." l He supports this by the fanciful analogy of one master having many slaves, while one slave can have only one master, and by the more dangerous argument that one true God is the Lord of many faithful souls, while for a soul to go after many gods is the fornication of idolatry. This might certainly be pleaded, if pertinent at all, in favour of polygamy among Christians, since the figure of marriage is expressly used to illustrate the relation of the faithful to Christ. But St. Augustine, with many others following him, treats the restriction to monogamy as an arbitrary discipline imposed by divine authority on Christians, thus introducing the con- fusion inevitably caused by the supposition of a divine law over-ruling the law of nature. He seems to have been moved to this mainly by an unwillingness to attribute to the Fathers of the Old Testament any ignorance or disregard of a divine institution ; the concubinage of Abraham, the polygamy of Jacob and of David, were therefore to be justi- fied as in accordance with natural law, and he laboured to maintain that in all such cases the one motive was a desire to fulfil the divine injunction of fruitfulness. 2 It is an obvious objection to this theory that no trace can be found of any express prohibition of polygamy in the preaching of the Gospel. If the maxim, " The two shall become one flesh," can be stretched to imply such prohibi- tion, which is a very doubtful resource, there is no new rule 1 De bono coniugali, 17. a Dt bono viduitatis, 7. THE EVIL OF POLYGAMY 13 introduced, for appeal is made to the primary institution of marriage. The maxim is directed against an abuse of the institution which is remotely, if at all, connected with poly- gamy ; it forbids separation from one wife, not the addition of another. Attempts have been made to bring into this connexion St. Paul's rule requiring a bishop to be " the husband of one wife," as though polygamy were allowed in ordinary Christians and forbidden only to those called into the sacred ministry ; but this interpretation is impossible in view of the corresponding regulation about consecrated widows ; * if it could be shown that plurality of wives was tolerated in any of the communities to which the regulation extended, it is certain that plurality of husbands was un- known. There can be no doubt that the rule was intended to exclude those who had contracted a second marriage after separation by death or divorce. In the absence of any express prohibition of polygamy, it is invariably assumed by the writers of the canonical books of the New Testament, and by the constant witness of the Christian Church, that monogamy is the rule. It is assumed in the condemnation of marriage after divorce ; for, if it were lawful to take a second wife while retaining the first, it would a fortiori be lawful to take a second after repudiat- ing the first.* It may be taken for certain that the lack of any express prohibition is due to the fact that the practice of polygamy was unknown among those to whom the Gospel was preached. But these men either had the Scriptures of the Old Testament in their hands, or were speedily intro- duced to them as containing the oracles of God ; and these books recorded without blame the polygamy of the Fathers. 1 i Timothy iii. 2 ; v. 9. 2 But conversely, the allowance of successive polygamy in case of divorce (infra, p. 104) cannot be pleaded in justification of simul- taneous polygamy, which alone is here in question. 14 OF MARRIAGE IN THE ORDER OF NATURE Therefore, if it was not necessary to warn men against fol- lowing this example, it must be inferred either that polygamy was still permissible, or that men were already convinced of its natural impropriety. The former alternative being inadmissible, the latter is imposed. It follows that the obligation of monogamy was learnt by the light of nature. With this all Christian practice agrees. Unsupported by any positive prohibition, the Christian witness against polygamy has been unwavering. Whatever toleration may at times have been accorded to illicit connexions, the union solius cum sola has been recognized as the only true marriage. Apart from the completely abnormal cases of the Anabaptists and the Mormons, the only serious attempt of any one claim- ing the Christian name to relax this rule is found in the allowance of a second wife accorded by Luther and Melanch- thon to Philip of Hesse ; the secrecy with which this was done, and the shame of its authors on detection, are the most eloquent assertion of the rule which they violated. If monogamy is required by natural law, a reason for it must be found in nature. Theologians from the time of St. Thomas Aquinas commonly seek this in a consideration of the bona matrimonii, the three ends of marriage defined by St. Augustine, proles, fides, sacramentum.* What militates against these is held to be contrary to natural law. Plurality of wives does not, says St. Thomas, or his reporter, in any way hinder the procreation of children ; it does to some extent injure the mutual trustfulness and accommo- dation which is fides ; it entirely ruins the sacramentum, which is the mystical signification of the union of Christ with the one Church. Thus it is contrary to nature in respect of the second and third ends of marriage. 2 Consideration of the sacramental character of marriage is 1 De bono coniugali, 24, and De Genesi, ix. 7. 1 Sum. Theol., Suppl. 65, i. THE EVIL OF POLYGAMY 13 postponed ; but here it may be remarked, first, that a sacra- ment is not strictly in the natural order, and that, even if marriage be supposed to have been instituted with a view to its sacramental use, the violation of that ultimate pur- pose can hardly be construed as a contradiction of the original institution ; secondly, that St. Thomas himself, or his reporter, allows a certain congruity of polygamy with the mystical significance of marriage, " quia quamvis non signi- ficaretur coniunctio Christi ad Ecclesiam, inquantum est una, significabitur tamen per pluralitatem uxorum dis- tinctio graduum in Ecclesia ; quae quidem non solum est in Ecclesia militante, sed etiam in triumphante." x In the same place he allows also that fides manet ad plures. His theological reasons for condemning polgyamy therefore break down. Firmer ground is needed. It may without difficulty be secured in a consideration of the approximate equality of the sexes under ordinary natural conditions. Abnormal conditions are known to produce a preponderance of one sex. The practice of polygamy is probably due, in part, to a redundance of women, in part to the selfish aggrandise- ment of powerful men. These causes in combination will account for its establishment by law, but it obviously can- not be general without an enormous disparity of numbers in the two sexes ; in point of fact, it seems to be usually a privilege of chieftainship or of wealth. But a practice due to abnormal conditions, and open only to persons abnormally placed, is no part of the order of nature. But further, polygamy can be shown to militate actively against the well-being of the race, which must be assumed as a true object of the natural order. It is found in practice to make for less fecundity. The eugenic plea that it implies breeding from the stronger and more virile stock, true in 1 Sum. Tbeol., Suppl., 65, 2. 16 OF MARRIAGE IN THE ORDER OF NATURE the case alike of wild beasts and of cattle, is nullified in the case of men by the diminished efficiency of fatherhood and of education within the family. The gravest objection, however, is that under normal conditions polygamy con- demns a proportion of one sex to sterility, and to the moral evils flowing from the frustration of natural instincts. This result is recognized in a significant manner ; the employ- ment of eunuchs is a regular accompaniment of the practice. To these more public evils should be added a private wrong suffered within the marriage-bond. Polygamy destroys the mutuality of right and duty on which the union of hus- band and wife properly rests. " The wife has not command of her own body/' says St. Paul, " but the husband ; and so too the husband has not command of his own body, but the wife." l The due cannot be freely rendered, except on condition that each man has but one wife, and each woman but one husband. This last argument was urged by St. Thomas in his more philosophic mood, as also the fine con- tention that polygamy destroys equality of love between husband and wife, introducing a servile relation. " Apud viros habentes plures uxores," he remarks, " uxores quasi ancillae habentur." * Polygamy, whether in its usual form or in the rarer form of polyandry, is thus seen to be contrary to natural law ; no supernatural revelation is required for its rebuke, and none has been given. The practice, however widespread, is an aberration ; the civilization which insists on mono- gamy is in the true order of human development. Marriage in the order of nature is the union solius cum sola. The entire union of man and woman effected by marriage is indissoluble except by death. That death dissolves it is evident from the fact that its whole aim is concluded within 1 i Cor. vii. 2-4. * Summa contra Gentiles, iii. 124. INDISSOLUBLE EXCEPT BY DEATH 17 the compass of this present life. The obvious inference is supported by the answer of our Lord to the Sadducees that " in the resurrection they neither marry nor are given in marriage." l It is the constant teaching of Christianity. " A wife is bound," says St. Paul, " for so long time as her husband lives ; but if the husband be dead, she is free to be married to whom she will." * The discouragement of second marriages, which has been a marked feature of some stages of Christian discipline, is not due to any doubt on this head, but only to the conviction that widowhood, like virginity, is a higher state. " She is happier if she abide as she is, after my judgment," adds St. Paul ; " and I think that I have also the Spirit of God." " A wife is bound for so long time as her husband lives," says the Apostle ; and this, like every other obligation in marriage, is mutual. It is unqualified. But it may be urged with some show of reason that other circumstances, as well as death, put a natural end to the union. The first purpose of marriage is frustrated by sterility ; a violent dislike or incompatibility of temper may drive the parties asunder, and so frustrate both the hope of children and the good of family life ; enforced separation, as by sentence of law, insanity, or certain kinds of disease, may have the same effect ; adultery, at least on the wife's part, involves a breach of the purpose of marriage even more serious. By the operation of these causes, it has been argued, the union is naturally dissolved, no less than by death. But marriage is not instituted for one cause only, so as to be frustrated by sterility, 8 nor is it a mere social union entered upon for certain specific objects with reservation of the right to withdraw from it in case of failure. It is an 1 Matt. xxii. 30. 2 i Cor. vii. 39. Cp. Rom. vii. 1-3. 3 See, however, below, p. 28, for the case of impotence. M.C.S. C i8 OF MARRIAGE IN THE ORDER OF NATURE entire union, completed by natural copulation prior to the achievement of any such objects, and retaining its effect in spite of subsequent disappointment. It is a natural union, as intimate and indestructible as that of parent and child. The purpose of nature in the relation of parent and child may be frustrated by separation as completely as in the case of husband and wife, but the parent does not cease to be parent or the child cease to be child ; their mutual obligations may be obscured or suspended, but cannot be definitely cancelled. " Marriage is ideally indissoluble/' says a recent writer, who perhaps does not go the whole way with me in tracing consequences, " the relation of husband and wife being like that of father and son, or brother and sister, where there may be casual alienation or even separation without altering the fact of the relationship." x If marriage were a mere con- tractual relation, an artificial partnership, it would be termin- able not only by a failure to achieve its object, but even more equitably by mutual consent ; because it is consti- tuted in the order of nature, and not only at the will of the parties, it is indissoluble except by an event equally in the order of nature ; and this can be found only in death. By virtue of nothing short of this can the husband cease to be husband, or the wife cease to be wife. Against this conception of marriage as naturally indis- soluble is set the general practice of mankind allowing its dis- solution for certain causes, and the marriage of the separated husband and wife to fresh partners. So profoundly has this practice affected the customary morality of human society, that grave doubts have been entertained whether marriage should be regarded as indissoluble by natural law, and not rather as made indissoluble by positive enactment. Oppressed by the precedents of the Old Testament and by his 1 D. Macfadyen, The Messenger of God, p. 93. INDISSOLUBLE EXCEPT BY DEATH 19 respect for that Roman jurisprudence which asserted with the utmost solemnity the perpetual obligation of natural law, St. Augustine taught that only in the civitas Dei, or Christian commonwealth, was this quality impressed on the union of man and wife ; in the natural order they might separate, as allowed by Roman law, and contract fresh marriages ; entering into the Church, they lost this liberty, being more straitly conjoined by virtue of the sacramental efficacy given to the natural institution. 1 His opinion has had immense effect on Christian teaching, but he was not entirely con- sistent with himself ; in discussing St. Paul's directions about separation from an unbelieving consort he definitely treated the presumably pagan marriage as debarring the Christian party from any fresh union, 2 and as being therefore fundamentally indissoluble. If it were not so, the Christian party, repudiated by the other, would be free to marry, and this interpretation of St. Paul's teaching has, in fact, been accepted by modern theologians. The natural law being thus called in doubt, we look for guidance to the evangelic revelation. It will be seen that two questions are raised : (a) Whether it is permissible for husband or wife on any account to withdraw from the close union which is marriage ; and (b) if this be allowed, whether the marriage is thereby dissolved so that the parties are free to enter into fresh unions. Such separation is properly called divorce, whether it implies dissolution of the mar- riage bond or not ; it is only by an abuse of language that the word is otherwise defined. We have to ascej then, from the teaching of the Gospel, wnether divorce is permissible ; in what cases it may be allowed, if 1 See especially, De nuptiis et concupiscentia, i. 10. Observe also that he objected to making marriage after divorce a bar to baptism. De Fide et Operibus, 19. 2 De adulterinis eoniugiis, i, 25. 20 OF MARRIAGE IN THE ORDER OF NATURE at all ; and whether it effects a dissolution of marriage. St. Paul's ruling is peremptory. Replying to specific questions put to him from Corinth, he wrote : "To the married I give commandment not I, but the Lord that a wife is not to be separated from her husband (but if she be separated let her remain unmarried, or be reconciled to her husband), and that a husband is not to put away his wife." So far, no exception of any kind is allowed ; in the case where separation has de facto taken place, a fresh marriage is forbidden. A little later, he answers a question about the remarriage of widows, which he allows, but with reiter- ation of the principle that the bond cannot be dissolved while the parties are both alive. But here comes in the one exception, commonly known as the privilegium Paulinum. It is introduced by the phrase, " To the rest say I, not the Lord." Who are these ? He has addressed two classes, the unmarried and widows, whom he advises to remain unmarried ; the married, whom he warns against divorce. So difficult it is to find a third class, that some have referred the words in question to the former of these classes, as though he said, " To the married I forbid divorce in the Lord's name, but to those others I only give my own advice." The construction of the whole passage, however, does not favour this interpretation, and the phrase seems clearly to be an introduction to what follows. There is then a third class of those who do not belong to either of the previous categories. It is plain who they are. They are Christian men or women, mated with unbelieving consorts. They seem to be set in a class apart because the Apostle addresses none but believers, and therefore, when he speaks to the married, he has in view those cases only in which both parties are Christian ; for these others there is something else to be said. But now he answers the question put to him 1 i Cr. vii. 10 ii. MARRIAGE AFTER DIVORCE si on his own authority, not alleging any express teaching of the Lord. " If a brother has an unbelieving wife," he says, " and she consents to live with him, let him not put her away ; and a wife who has an unbelieving husband, and he consents to live with her, let her not put him away. . . . But if the unbelieving party makes separation, let it be so ; the brother or the sister is not enslaved in such cases." Such is the Apostle's ruling, divested of the arguments with which he pleads for its acceptance. Its meaning is quite clear, but those arguments are helpful to a fuller under- standing, since they suggest the form of the question which he was answering. There was probably a definite rule that Christians should marry, as he casually remarks lower down, " only in the Lord " ; what was the duty of converts already married whose consorts remained unbelieving ? Should the marriage stand, or should they take advantage of the law which allowed divorce ? St. Paul replies that " the unbeliev- ing husband is sanctified in his wife, and the unbelieving wife- is sanctified in the brother." The marriage may therefore stand. The Christian party is not merely allowed to con- tinue in this union, but is forbidden divorce. If, however, the unbelieving party effect a divorce, no steps need be taken to hinder it. What steps could be taken ? St. Paul probably has in mind the case of the unbeliever demanding, as a condition of continued wedlock, something inconsis- tent with the profession of a Christian. A Christian is not a slave, he protests. The question remains whether the Christian party, being so divorced, is free to marry. St. Augustine, as above noted, says not. The contrary opinion has generally prevailed, but it rests on the supposition that marriage is not naturally indissoluble, which we are now examining. The Apostle himself gives no ruling, 1 and it is 1 It is impossible that SeSpvAomu, v. 15, should be equivalent to v. 39, 22 OF MARRIAGE IN THE ORDER OF NATURE probable therefore that he leaves this special case under the general rule that a wife separated from her husband must remain unmarried. What St. Paul taught the Corinthians in reply to an ex- press question, he wrote also more at large in his epistle to the Romans. " Do you not know, brethren (for I speak to men who know law), that the law has dominion over man so long as he lives ? For the married woman is bound by law to her living husband, but if the husband die she is discharged from the law of her husband. So then, while the husband lives, she will be called adulteress if she be joined to another man ; but if her husband be dead, she is free from the law, so as not to be an adulteress when joined to another man." l It should be observed that the Apostle is here appealing to a known principle, in illustration of an argument concerned with other matters. There was a recognized Christian law. Was this peculiarly Christian, or was it the natural law rein- forced by Christian teaching ? It rested on a saying of the Lord, currently reported among the faithful. For further elucidation, that saying must be identified. Such a saying is recorded in four places of the canonical Gospels, two of which are clearly identical ; the others are in a separate setting. In the tenth chapter of St. Mark and the nineteenth of St. Matthew is the story of the Pharisees who put to our Lord the test question whether it was lawful for a man to divorce his wife ; St. Matthew adds the particular that they asked whether it were lawful " for every cause," glancing at the later practice of the Jews. He answered by a reference to the primary institution of marriage, by which man and woman become " one flesh," deducing the consequence, " What God joined together let not man put asunder." Confronted with the Mosaic legislation about divorce, He replied that 1 Rom.^vii. 1-3. MARRIAGE AFTER DIVORCE 23 this was allowed because of men's hard-heartedness, which has been variously interpreted to mean their stubborn refusal to follow the divine ideal or the harshness with which they would treat a wife who could not be dismissed. Then follows a gnomic saying which St. Mark reports to have been deliv- ered in private to the disciples as a further instruction, and which is also recorded, without note of time, elsewhere in St. Matthew and in St. Luke. It cannot be doubted that this was the saying of the Lord to which St. Paul referred. It will be well to place side by side the forms in which it is recorded, with verbal variations. Matthew v. 32. Every man divorcing his wife, apart from the cause of fornication, makes her commit adultery ; and whoever marries a divorced woman commits adultery. Matthew xix. 9. Whoever shall divorce his wife, unless for fornication, and marry another, commits adultery ; and he who marries a divorced woman commits adultery. 1 Mark x. n. Whoever shall divorce his wife and marry another, commits adultery against her ; and if she, after divorcing her husband, marry another, she commits adul- tery. Luke xvi. 18. Every man divorcing his wife and marry- ing another commits adultery ; and a man marrying a woman divorced from her husband commits adultery. It is to be observed that this teaching of our Lord is expressly based on the natural institution of marriage. He is not giving a new law to Christians. He is enforcing and explaining the natural law which had been corrupted through man's hard-heartedness. On this ground divorce is expli- citly forbidden ; and further, if divorce takes place de facto, marriage of the divorced is forbidden as involving the guilt of adultery. That is to say, in spite of divorce the natural 1 The text of this passage is doubtful, but not in any particular seriously affecting the sense. 24 OF MARRIAGE IN THE ORDER OF NATURE relation, the vinculum, remains intact. If it were not so, union with a divorced woman, however strongly condemned on other grounds, could not be called adultery. It is adul- tery, and therefore the previous marriage-bond remains unbroken. The one except ed case calls for brief consideration. It is peculiar to St. Matthew. But further, it contrasts re- markably with the general manner of our Lord's teaching. Wilhelm Bousset has remarked with justice on His practice of laying down the commandment of God in all its absolute- ness in face of the endless distinctions and exceptions which made the system of the Pharisees. 1 There is no other ex- ample of such an exception in the Gospel ; the rule of con- duct is laid down peremptorily, and whatever exceptions or economies may be necessary in practice are left to the con- science or to the regulation of human authority. Bousset, therefore, bluntly rejects this exception as an interpolation. There is no ground, however, for doubting its authenticity in the text ; but it is not improbably a gloss, inserted by the evangelist, calling attention to a practice recognized in the Church when he wrote. The consideration of its meaning may therefore be defended until we come to speak of mar- riage in relation to human law. It is sufficient to say here that the except ed cause justifies only the separation of hus- band and wife ; it is interjected parenthetically for this pur- pose, and does not affect the subsequent judgment that the marriage of the divorced is adulterous. An exact compari- son of the second passage from St. Matthew with the cor- responding citation from St. Mark makes this abundantly clear. So it was understood without hesitation by all Chris- tian writers commenting on the words, until the entangle- ment of the Church with the Empire in the fourth century 1 Bousset, Jesus, p. 144 (Engl. transl.). EFFECTED BY CONTRACT 25 moved men to find some common ground for Christian teaching and Roman law. Those who held the general opinion that our Lord expressly sanctioned the divorce of an adulterous wife, and those who held, as Hermas, 1 that it was even sinful to cohabit with her, nevertheless emphati- cally declared that the husband dismissing her would himself be guilty of adultery if he married another. The bond of marriage, that is to say, remains unbroken by divorce. Moreover, this teaching is grounded on the natural institu- tion of marriage. Marriage is therefore indissoluble in the order of nature. This intimate and indissoluble union of man and woman is effected by means of a contract. Since two individual lives are to coalesce in one, without prejudice to the true personality of either party, they must come together by a free act of mutual surrender and acceptance. The hus- band, says St. Paul, does not retain full control of his own body, nor the wife of hers ; an abnegation which would be intolerable, and even immoral, on any other basis but that of mutual consent. This free contract of marriage, pro- perly called the wedding of man and woman, is more or less recognized in all forms of civilization ; but the pre- dominance of the male, and the imperfect freedom of the unmarried woman, usually make it a one-sided affair ; yet even marriage by capture, which is common to many savage races and curious vestiges of which linger in others of the most highly developed culture, differs from mere rape in assuming the contented acquiescence of the prey ; indeed, the analogous habits of the brute creation suggest that the foray, real or pretended, looks not so much to the bride herself as to the males of her tribe from whom she is stolen/' It is not here, however, but in a state of complete civili- zation, that we must seek evidence of the true nature of the 1 Pastor, Mand., iv., i. 26 OF MARRIAGE IN THE ORDER OF NATURE marriage contract. Even in Roman law, despite the sub- jugation of children in patria potestate, it was agreed that marriage was effected by the consent of the parties. 1 Other systems of law also require the consent of parents to the marriage of a man or woman below a certain age, and it is difficult to say whether in the absence of such con- sent the marriage is naturally void. The subjugation of young children to their parents is unquestionably natural for so long a time as is required for their preservation, but no fixed limit can be set ; the age of independence defined by positive law is merely artificial. It is generally allowed that consent of wedlock should be considered naturally possible as soon as the parties are of an age to fulfil the marriage contract. If, however, it can be shown that mar- riage at so early an age is injurious to the individual or to the race, it may seem that natural law imposes further restraint ; and a marriage contracted in defiance of such restraint may be held naturally void. A similar argument may possibly establish restraint of marriage between persons who for lack of bodily or mental health are unable to fulfil the ordinary obligations of marri- age, to rear and educate children, and to render the mutual services implied in the holy estate of matrimony. It may be held that such persons are naturally incapable of enter- ing upon a contract, the terms of which they are naturally incapable of fulfilling. It is evident that a growing know- ledge of nature may bring with it a more accurate percep- tion of natural law, and refinements of this kind are not to be rejected as impossible ; but our knowledge of human physiology is not at present complete enough to serve for the formulation of rules in such matters. 1 " Nuptias non concubitus sed consensus facit." Ulpian. in Tit- de Divers. Reg. lur. Antiq. 30. CONDITIONS OF A VALID CONTRACT 17 Setting aside these doubtful questions, we find certain conditions generally acknowledged as requisite in a valid contract of marriage. First, genuine marriage must be intended. A mutual contract of man and woman to render some only of the offices involved in marriage would not be sufficient. It might do no more than set up a relation of concubinage, to be terminated at will. It is not enough that the pro- posed relation be called marriage. If it be entered upon with a mutual agreement to frustrate any of the true pur- poses of marriage, as for example to avoid the procreation of children, or to have no community of life, such restrictive conditions will render the contract void, and there will be no marriage. It is obvious that if one party have this vicious intention, the other being privy to it, there will be the same defect in the contract. If the intention be secret on either side, a difficult question may arise ; the contract .- may be held good because of its openly expressed terms, but action taken and persisted in, such as refusal to con- summate the union or to cohabit, may betray the defective intention and so nullify the pretended marriage. An avowed purpose of continuing the union only for a limited period, or until a divorce is in some way effected, will make the contract void ; but a mere implication of such purpose need not be equally destructive. If two persons contract marriage, for example, in a society or under a system of law which treats the bond as normally dissoluble, it does not follow that they intend a merely temporary union ; it is enough that they purpose marriage, though a general opinion which they themselves share erroneously regards the consent as revocable. God has joined them together by a natural bond, though it be supposed that man can put them asunder. Otherwise there would be no marriage except where the truth of the indissolubility of marriage 38 OF MARRIAGE IN THE ORDER OF NATURE is known and received ; there would have been no genuine marriage among the Jews or the other peoples to whom the Gospel was preached. The fact that from the first ^ converts to the Church were received as truly married effectively disposes of this question. Since marriage is a natural institution, it must be taken that those who marry intend the natural union with all its consequences, known or unknown, unless any of these be expressly excluded. In the second place, the parties must be physically capable of the marriage union. The man must have reached puberty, and the woman must be apta viro. A promise to marry might be made earlier, and have some binding force, as in the case of legal espousals per verba de futuro, but this promise would not normally constitute marriage, even if the parties afterwards came together. But further, since some men remain always incapable of the act of marriage, or are incapacitated by artificial means, one who is so im- potent is incapable of contracting marriage ; if the im- potence be discovered after the verbal contract has been made, this must be treated as null and void, and there is no marriage. In the third place, the consent of the parties must be free, deliberate, and informed, otherwise there is no true con- tract ; anything, therefore, which destroys these conditions nullifies a contract otherwise valid. An enforced consent makes no marriage, even though the union be consummated ; if either party was terrorized, by whatever means, into the surrender of the body and the verbal expression of consent, the contract is void. An insane person, again, or one under the influence of drugs, not having control of the will, is in- capable of contracting a valid marriage. So too if a definite mistake be made as to the persons contracting, as if a man verbally contract with one woman supposing her to be another woman, this contract also is void. These limita- CONDITIONS OF A VALID CONTRACT 29 tions are not imposed by positive human law ; they are inherent in the nature of things, rendering an apparent consent unreal. Fourthly, the parties must both be free of any other tie of wedlock. This follows from the unity and the indissolu- bility of marriage ; a person already married cannot con- tract a new marriage. It is allowed in practice that when one party of a marriage has disappeared and has not been heard of for some years, the other party may be held free to marry, but this on the ground that the death of the missing one is presumed. It is sometimes held that a pre- contract of marriage, solemnly made, is a bar to any other marriage unless the parties to it be as solemnly released. This kind of contract is recognized in many systems of law, and has an important place, under the name of Sponsalia, in Canon Law and Moral Theology. The question for us here is whether it should be referred to Natural Law. In a sense, Natural Law must certainly take cognizance of it, as of all obligations founded on contract. It is a contract by which the parties, in some cases through their natural or legal guardians, pledge themselves to marry at some future time. It is not denied that the contract is rescindible, either by mutual consent, or even by one party where con- ditions make its fulfilment improper ; but about its effect while subsisting there is much dispute. Each party is under a natural obligation to marry when called upon to do so, and is therefore precluded from contracting any other marriage ; but is there set up a natural status which will render such marriage void, if attempted ? The precon- tract is the preliminary 6771/770-*? of Athenian law, which was considered an indispensable feature of the marriage contract. In Roman law the sponsalia were not essential, and it was possible to proceed direct to marriage ; but, both in this system and in the Christian practice derived 30 OF MARRIAGE IN THE ORDER OF NATURE from it, these espousals de futuro followed by the carnal union of the parties have been held to constitute true mar- riage. This effect, however, may be referred to a contract of present marriage presumed as implicit in the act of union,, and thus it is not necessary to give the espousals the char- acter even of inchoate marriage. On the whole, it seems best to conclude that in the order of nature espousals de futuro set up nothing but an obligation, the breach of which is an offence against justice, but which does not render the person so bound incapable of marriage with a third party. The marriage is to be condemned, but is not to be set aside as void. Lastly, persons nearly akin to each other are incapable of intermarrying. It is not, however, certain what near- ness of kindred constitutes a natural bar to marriage. The practice of mankind has varied from a rule of strict exogamy, requiring the parties to be of different tribes, to the point of allowing marriage between a brother and a sister of the full blood. At the same time the observance of whatever rule is adopted has usually been enforced under sanctions which imply a remarkable degree of natural repulsion from the forbidden unions. The definite horror of incest, which seems indestructible even in the most decayed civilization, has its roots deep in human nature. Attempts have been made to find a physiological basis for prohibitions of this kind, but without success ; a general belief that injurious effects are found in the offspring of the forbidden unions is not universally verified in experience, and it is probably the result rather of a religious dread than of actual obser- vation. It seems to be a certain conclusion of biology that the human race is descended from a single ancestor differen- tiated by one of the greater variations that appear spontan- eously in breeding. If this be so, the unity of the race could be preserved in the first instance only by the closest CONDITIONS OF A VALID CONTRACT 31 interbreeding, and it is impossible to refer the prohibitions in question to these beginnings. But the natural consti- tution of society, as we have had occasion to observe, is not to be found in the first stages of human life. It is found rather in that to which human life tends, in accordance with the thought of the Creator. At what stage in the history of the race the restriction of in-breeding began, it is impossible even approximately to ascertain. The savage tribes which practise exogamy, it must be repeated, are not primitive. They have an unrecorded past in which vast changes have probably taken place. But the restric- tion, in one form or another, has become a constant factor of social order. Marriage with a sister of the half-blood, as recorded of Abraham, or of the full blood as practised in some communities more civilized than those of the Semitic nomads, has been held on high authority to be forbidden by natural law { ; but it is difficult to maintain this opinion in view of the fact that such marriage would be necessary at the beginnings of the human race ; still less will a more remote kinship be a bar ; the one kind of union that seems to be certainly excluded is that between a man and a woman related in the direct ascending and descending line. If this be so, and the question is one of great difficulty, all other prohibitions must be referred to human law, being imposed for the better safeguarding of the family. What has been said above as to the relation of affinity draws with it the inevitable consequence that the natural restriction of marriage applies no less to persons allied in this way than to those related in blood. This obvious con- clusion is fortified by the remark of St. Paul that union be- tween a man and his father's wife was regarded, apart from 1 The authorities are collected with characteristic erudition in the Rev. Father Puller's Marriage with a Deceased Wife's Sister forbidden by the Laws of God and of tht Church. 32 OF MARRIAGE IN THE ORDER OF NATURE any special sanction of Christianity, as a thing not to be heard of. 1 That is to say, it was an offence against natural law and against natural religion. These five conditions, then, are required for a valid con- tract of marriage. The parties must intend true marriage ; they must be physically capable ; they must be acting freely, under no constraint and under no mistake ; they must be subject to no previous bond of marriage ; and they must not be too near akin. The contract thus made is fulfilled in the actual union of the parties, which is called consummation of marriage. A man and a woman who have contracted, but not consum- mated marriage, are in an abnormal position as to which the natural law affords no guidance, but for which human law must provide in case of need. Those who have con- tracted and consummated marriage enter upon a new state of life, determined by nature. The state of marriage is not a contractual state ; the bond is not a contractual bond. The contract is only the instrument by which the state of marriage is brought about. It is not a continuing contract, subject to revision, or capable of being rescinded with due regard for law by agreement of the parties interested. It is completed by consummation. Thenceforward the rela- tions of the parties are determined, not by contract, but by law, divine and human ; they are bound to the fulfilment of their mutual duties, not by their own consent, but by a natural obligation. The extent of the obligation is determined by the purpose of marriage. It is an obligation to live together for life in a perfect union of equal partnership for the procreation and nurture of children, for mutual support and comfort in good and evil estate, and for the right ordering of the family. 1 i Cor. v. i. The reading ovo/xa&rai seems to be a valid gloss, looking back to d/coverou. THE SANCTION OF CONSCIENCE 33 Nature seems to assign a certain headship to the man, which St. Paul with great boldness likens to the headship of Christ in the Church, but this implies no dominion. It is not by natural law, but by a gross corruption of human law, that a wife is regarded as the chattel of her husband. St. Paul qualifies the submission and reverence of the wife by the implication of perfect equality involved in bidding men love their wives as their own bodies. In regard to the essen- tial act of the marital relation, he insists that the wife has the same right over her husband's body that the husband has over the wife. In the First Epistle of St. Peter, the comparative weakness of the woman, though naturally and inevitably pointing to some normal measure of subjection, is expressly made the ground for honourable regard. 1 The divine law of nature assumes obedience. It is de- signed for men who live according to the will of the Creator. Sin, and the perversity of nature consequent on sin, disturb the sublime order thus demanded, and there is in the divine law no invocation of force to compel submission. Its sanction is moral ; its appeal is to conscience. There are terrors, but remote ; there are consequences of ill-doing, but they are obscure in movement. Law is not necessity. Some confusion of thought is induced by the common appli- cation of the word to those sequences of cause and effect in which no free action of will is discernible. It may be that we are mistaken in thinking even of wind and storm as fulfilling God's word with lifeless precision ; there may be agents working with the thundercloud as men work with the harnessed forces of nature. Where men are con- cerned there is certainly a measure of freedom, known in act though undetermined in extent. In marriage, there- fore, as in all moral action, human practice does but approximate to the perfection of the divine law. 1 Eph. v. 22-8 ; i Cor, vii. 4 ; i Pet. iii. 1-7. M,C,S. D 34 OF MARRIAGE IN THE ORDER OF NATURE That law may be known by interrogation of nature. But the knowledge so achieved is imperfect, being at the best sought by long labour and preserved in the accumula- tion of human tradition. It is also precarious, being partly obscured and partly distorted by passion and self-will. It is increased, and it is also cleared of false accretions, by the plain teaching of the Gospel, in which God Himself makes known some of the more secret passages of Kis Will. Chris- tians therefore have in the tradition of the Church a fuller exposition of the divine law of marriage, as it is in the order of nature, than can be found elsewhere. Christian marriage is not a particular kind of marriage, though there is super- added to the marriage of Christians a certain quality, next to be considered, by which it becomes sacramental. There is not a less perfect marriage common to all men, and a more perfect marriage proper to Christians. Marriage is true marriage alike in the Christian, in the pagan, and in the creedless theist or atheist who has renounced Christianity. In so far as marriage is better ordered in Christendom, it is only as Christians know and observe more fully than other men the natural law of marriage. In so far as modern civilized man has any advantage, it is because he has acquired, from theology and physiology alike, more insight into the working of nature. To break away from the Chris- tian tradition is not to return to nature ; it is to fall back upon a less- developed knowledge of nature. The duty of a Christian man is plain. He is to bring his conscience to bear upon what he knows of the divine law, and to regulate his own conduct thereby. He is to contract marriage only as it is allowed by the law of God, and to li ve in this holy estate as becomes one who has learnt its deeper meaning. He will bear in mind the purpose of the union, and will do nothing to frustrate that purpose by interference with the course of nature ; he will beget chil- THE DUTY OF A CHRISTIAN MAN 35 dren and cheerfully undertake the burden of their nurture. He will make a temperate use of marriage, and will be sparing in his demands upon his partner. He will treat that partner with equal honour both in public and in private, and share as completely as possible all good and adverse fortune. The duties of husband and wife are correlative, and each has to contribute in equal measure to the achievement of a perfect marriage. But the instructed Christian has to do more than present an example of the life that is according to nature in a single family. Human life is necessarily organized on a large scale. The Christian has to maintain the cause of marriage in the nation as well as in his own household. His conscience is not engaged in what other men do, but he is bound both to support others in doing right and in upholding the general good of society. Know- ing the importance of marriage, he will do his utmost to prevent its degradation. But he will remember that all men have not the same knowledge, that many defects in the ordering of this holy estate are to be tolerated because of their ignorance or the hardness of their hearts. He will not be too ready, either by legislation or by pressure of social opinion, to force on other men observances to which their own conscience does not call them. He will be much sterner in his judgment of a fellow Christian than in his intercourse with those without the Church. He will bring all things to the standard of the law of God, refusing to abate any demand, or to recognize any lower ideal ; but he will allow that personal deflections from the right way do not always involve personal guilt. In a word he will uphold the truth of nature, but in social intercourse he will tolerate much that is false, and will frankly recognize as living together in good faith and without blame many whom be knows to be united by no true marriage. CHAPTER II Of Marriage in the Order of Grace IN the ritual of the Church, marriage is said to be ordained for a remedy against sin. This seems to con- flict with the statement that it was instituted in the time of man's innocency, except on the general understanding that by the economy of grace things existing in the order of nature are appropriated to an use beyond nature. If sin be a perversion of man's nature so grave and harmful that he cannot by the exercise of his natural powers recover his normal condition of spiritual health, it follows that he can be restored only by some power external to himself. The practical purpose of the Christian revelation is to show a power so working, which we call the Grace of God ; and since this exceeds the measure of man's natural power, we call its operation supernatural. But the work is usually done by means which lie within the order of nature. The Saviour of the world took human nature in which to do the work of redemption, and took it by means in part, at least, natural. " Si enim consideremus," says St. Thomas Aquinas, " id quod est ex parte materiae conceptus, quam mater ministravit, totum est naturale." 1 In sequence upon this, institutions and practices which formed part of the common equipment of human life were taken into the redemptive system of Christianity and established as " mysteries of God." All forms of religion, all modes of 1 Summ. Theol., 3, 33, 4. 39 A GREAT MYSTERY 37 social action, were more or less tainted with the effects of sin ; but some of them were sanctified to be modes of the Christian life and forms of the religion of the Gospel. Among these was marriage. Constituted in the order of nature, and remaining as so constituted, it received in addition a supernatural endowment. " This mystery is great," says St. Paul. 1 According to his constant use of the word, he is thinking of a dispensation of God, eternal in the divine purpose, but coming to light only in the preach- ing of the Gospel. The ordinance of nature, " the two shall become one flesh," is made an ordinance of grace ; "I speak," he adds, " in regard of Christ and of the Church." So sacred has the natural union become, that a husband's love for his wife may be compared with the love of Christ for His redeemed ; men ought to love their wives as their own bodies, and as Christ loves His mystical Body, the Church. The figure had already been used by the prophets to illustrate the relation of God to His chosen people 2 ; St. Paul employed the comparison rather to enhance the solemnity and sanctity of the estate of marriage. The sense in which he used the word ^va-r^piov must be ascertained. It is not peculiar to him, though the word is barely found in other writers of the canonical books of the New Testament. It was evidently part of the common Christian language, and so continued. But, like almost all specifically Christian words, it came from an exterior source. It had a familiar religious use in all lands where Greek was spoken. Its origin was religious, though it was passing into a sense detached from sacred associations. Throughout the Greek world, and especially the part of it in touch with Asia, Mysteries were religious observances connected with the idea of redemption or salvation by means 1 Eph. v. 32. * Jer. iii. 14 ; Hos. ii. 19. 38 OF MARRIAGE IN THE ORDER OF GRACE of a doctrine divinely revealed "and practices divinely ordained. Their resemblance to the Christian system is obvious, and the first preachers of the Gospel did not shrinlj from the comparison. They proclaimed the kinship by speaking of the Christian Mysteries. But there is a dif- ference. Christianity was more than a specific religious action ; it demanded the surrender of the whole life, and all the details of life could be taken up into its mysteries. It is possible that St. Paul himself was responsible for the general currency of the word among Christians. It seems to have been disliked by the Jews. Philo insisted that there were no mysteries in the Mosaic religion, which em- ployed only the most open and public methods of divine worship. He evidently had in view the affected secrecy of the mystic rites, and their restriction to chosen initiates. 1 The word found only a restricted use in the Septuagint, mostly in the vulgar sense of a mere secret. In the Book of Wisdom, the Mysteries of God are but the unsearchable workings of Providence. It does not seem to be used of religious ordinances except in another passage of the same book, where it stands, not without a note of contempt, for the vain imaginations of the Gentile world. 2 It is therefore surprising to find the word current in the Apostolic writings ; but however much its complete adoption into Christian language may be due to St. Paul, his free use of it without apology or explanation shows that it was already sufficiently familiar. Nor is the word used loosely, without reference to its origin. It had already passed, as the Septuagint bears wit- ness, 3 into the vulgar sense of a mere secret, but St. Paul 1 Philo, TLcpl OVOVTW, p. 856, ed. 1691. 2 Wisd. ii. 22 ; xiv. 15, 23. Cp. Dan. ii. 18 ; Judith ii. 2 ; Tobit xii. 7. 3 And earlier ; cp. Menander, Fragm., 168. pvcrrripiov crov ^ TO> NO SPECIAL SENSE OF SECRECY 39 does not seem to use it anywhere in this way. 1 There are not many indications even of a secondary sense of secrecy. The Christian Mysteries had affinities with the cults known by the same name in other religions, but they were not guarded with the same affectation of secrecy, nor were sacred truths jealously doled out to recipients in various stages of initiation. There are, indeed, some words of St. Paul which seem to imply such a practice : " We speak wisdom among the perfect. . . . We speak God's wisdom in a mystery." 2 But it is probable that, borrowing the language of secret initiation, he is here thinking only of the gradual training in the Christian life which new converts required ; he reproaches the Corinthian Christians for their slow pro- gress. In the course of time, indeed, the habit of secrecy invaded the Christian Church ; the disciplina arcani may have been suggested as much by the associations of the Greek Mysteries as by the necessity of hiding from persecution. But in the first age the Christian Mysteries seem to have lacked the element of secrecy. There is evidence of this in the use of the Latin word sacramentum, which suggests nothing of the kind, to represent the Greek ^va-r^iov. The earliest translators of the Scriptures of the New Testament employed it exclusively ; the word mysterium, though well established in the language, and afterwards introduced by St. Jerome into his revised text of the Bible, was for some reason avoided ; no word implying secrecy was sought ; the Christian mysteries became, for the whole Latin Church and its derivatives, sacramenta. This rendering helps to fix the meaning of the original. The older Latin literature, indeed, knows no use of the word 1 There is more in Eph. i. 9, though the sense of secrecy is there prominent. 2 i Cor. ii. 6-7. Account should, however, be taken of our Lord's comment on His parabolic teaching ; Matt. xiii. 14. 40 OF MARRIAGE IN THE ORDER OF GRACE which accounts for its Christian use, and it was probably drawn from the popular language. Tertullian and St. Cyprian employ it in a very broad sense for the Christian religion in general, as well as in a narrower sense for specific religious observances. St. Augustine seems in more than one place to make it exactly equivalent to signum sacrum, and this interpretation, treated as a definition in the form signum rei sacrae had considerable effect on the development of Latin theology. It is probable that the sense of signum was present, though less prominent, in the original Greek word as used by Christians ; a mystery was something done or said with a spiritual significance. More broadly, it was any religious observance, whether of doctrine or of practice, closely connected with the evangelic scheme of salvation. When marriage thus became a sacrament, its original character was not changed ; a new quality was superadded. It became, says St. Augustine, " non solum vinculum, verum etiam sacramentum," with the result that things formerly tolerable in its treatment were now intolerable ; for instance, the lending of a wife to another man, which was reckoned praiseworthy in Cato. 1 This can only mean that the sanc- tity of the relation between husband and wife was increased. The selection of such an extreme case for illustration shows how the degradation of marriage in Roman practice affected St. Augustine's estimate of the natural union ; he seems to have thought that, but for the sacramental character newly impressed upon it, such use of a husband's rights would not have been blameworthy. By the same habit of thought, perhaps, he was led to regard' the sacramental character of marriage as the cause of its indissolubility. In saying that marriage would not be indissoluble, " nisi alicujus rei majoris quoddam sacramentum adhiberetur," 2 he may possibly 1 De Fide et Operibus, 7. * De Bono Coniugali, 7. THE MEANING OF A SACRAMENT 41 have meant that from the first the value of the institution stood in the anticipation of its evangelic significance ; but this, though in agreement with much of his thought, con- flicts with some of his express statements. He was not, how- ever, as we have seen, entirely consistent with himself on this subject. The " greater thing " present to the mind of St. Augustine was unquestionably the union of Christ and the Church, with which St. Paul compares the union of husband and wife ; as the English ritual says, God has " consecrated the state of matrimony to such an excellent mystery, that in it is signi- fied and represented the spiritual marriage and unity betwixt Christ and His Church. " But this is not the primary sense in which marriage is sacramental. A sacrament is symbolic ; but it is not a sacrament because it is symbolic ; it is sym- bolic because it is a sacrament. The mysteries of the king- dom of heaven have transcendent counterparts, but in their primary sense they are religious doctrines and practices connected with the work of men's salvation under the exist- ing conditions of human life. The sacrament of marriage is an ordinance of practical Christianity. By practical Christianity men are saved from sin. The ordinances of practical Christianity are means of salvation. What men sought by means of the Mysteries of Eleusis they obtain by means of the Christian Mysteries. In the broad- est sense of the term, sacraments are means of grace. In Hooker's phrase, they are " powerful instruments of God to eternal life " ; not physical instruments, as he well distin- guishes, but " moral instruments of salvation, duties of service and worship, which unless we perform as the Author of grace requireth, they are unprofitable." 1 His general definition of the term can hardly be improved : " A sacrament is generally in true religion every admirable 1 Eccl. Pol. v. 50, 57. 42 OF MARRIAGE IN THE ORDER OF GRACE thing which divine authority hath taught God's Church either to believe or observe, as comprehending somewhat not otherwise understood than by faith." 1 For many agesfc no attempt was made to determine more particularly what beliefs or practices should be recognized as Christian sacra- ments ; seven were specifically enumerated by Peter Lom- bard in the twelfth century, and the great vogue of his Liber Sententiamm in the schools of the Middle Ages made this number a theological commonplace. The narrowing of the term was due to the dominance of the idea of signum. A sign was reasonably interpreted as something visible, and those sacred ordinances in which there could be recognized a visible sign of sanctifying grace were distinguished as Christian sacraments in the more proper sense. This new use of the term was arbitrary, but the distinction which it enforced was real. So accurately and convincingly was it treated that even the Greeks, never too ready to follow Latin theologians, adopted the scheme ; the word fjLvcmjpLov could not be limited in use, as was soon the case with the Latin sac? -amentum, but the Seven Holy Mysteries were set in a category apart. Thus the determination of seven sacra- ments, peculiarly so called, was accepted by the whole Christian- Church. Marriage is one of the seven. But did St. Paul call marriage a mystery in this sense ? The word has with him a latitude which would permit a more general interpretation : did he mean that in marriage is conveyed a gift of grace, saving or sanctifying ? His gnomic saying must be interpreted chiefly by what he says elsewhere of marriage and its effect in the Christian life, which we shall presently examine ; but the saying itself will yield some information. The words TO /jiva-Tijpiov TOVTO pe^a eo-rtV are significant. They may be compared with the similar phrase, fieya earl TO rfjs v, and covering obedience to all Christian teaching. 1 Athenag. : Leg. pro Christianas, 33 ; 77 v ^yaycro Kara TOVS v uwv T0eiueVovs vo/xovs. Epist. ad Diog., 5. Hermas, Mand, iv. THE ORIGINAL CHRISTIAN LAW 119 infirmity of men not endowed with the grace of continence, and the worse evils that a strict observance of the law might engender. 1 The principle underlying the practice of dis- pensation is here laid down with the utmost precision, and the existing practice of the Eastern Church is anticipated. Dispensation from ecclesiastical rule is obscurely indicated by Tertullian, with the expression of distaste that might be expected of his unbending mind, in the case of some Christian women who had married unbelievers ; he does not know whether to put this down to their own wayward- ness or to the double dealing of their advisers. 2 Dispensa- tion from the requirements of civil law, enabling Christians to disregard them with a good conscience, is found in the debated action of Callistus, who allowed Christian women of high rank to intermarry with slaves. 3 It is significant that objection was taken to all such dispensations. They mark the gradual change of the moral teaching of the Church into a system of law, which must take account of excep- tions as well as of principles. There is indeed, even in the canons of certain councils held in the early part of the fourth century, a noteworthy tenderness in dealing with some breaches of the Christian law. The ninth canon of Illiberris allows a woman who has left an adulterous husband, and married another, to be restored to Communion after the death of her true husband, or even sooner in case of necessity, apparently without requiring her to break with her new partner. The sixteenth canon imposes a penance of five 1 Orig. Comment, in Matt., torn. xiv. 23. 2 Tertull. Ad Uxorem. ii. 2. " Miratus aut ipsarum petulantiam aut consiliariorum praevaricationen." The word praevaricatio seems to be used in its proper forensic sense, in which case the harsh and impetuous writer brings against the consiliarii, who can hardly be other than the ecclesiastical authorities, the odious charge of acting in collusion with the unbelieving party. 3 Supra, p. 73. 120 OF MARRIAGE IN CANON LAW years on those giving a daughter in marriage to a Jew or heretic, but says nothing about separation of the parties. In a like case the eleventh canon of Aries imposes on women so married only a brief exclusion from Communion, " ut aliquanto tempore a communione separentur." The tenth canon of the same council is even more remarkable. " De his qui coniuges suas in adulterio deprehendunt," it says, " et eidem sunt adulescentes fideles et prohibentur nubere, placuit ut inquantum possit consilium eis detur, ne viven- tibus uxoribus suis licet adulteris alias accipiant." It is recorded that a man who has detected his wife in adultery is forbidden by the Church to use the liberty of divorce and remarriage allowed him by the civil law, but no censure or penance is imposed on one who, under the excuse of youth, violates this prohibition ; he is only to be advised in the strongest possible terms to obey. This interpretation can be escaped only by a rendering which would refer the words alias accipiant to a concubine and not to a legal wife ; it will then follow that the council, while absolutely for- bidding marriage to the divorced, reluctantly tolerates con- cubinage. Hefele, not observing the possibility of this rendering, sees in the canon a concession to the standard of morality set up by the civil law. When the Empire became Christian, the civil law of mar- riage was gradually modified in a Christian sense. The process was slow, and was never completed, but there was in the Church an inevitable tendency to acquiesce, and still further to abate the severity both of witness to the natural law as clarified by revelation, and of insistence on the sacred canons. It must not be supposed, however, that the Chris- tian rule was even approximately identified with the im- perial law. Failure to observe the distinction vitiates much of the industrious learning which Bingham devoted to this subject ; he constantly confuses the legislation of the Theo- THE CHRISTIAN EMPIRE 121 dosian emperors with the contemporary canons of the Church. The real divergence was sufficiently recognized ; conscious- ness of it appears in a canon of unknown source and date, erroneously ascribed to the Council held at Mileve in the year 416, which demanded an imperial law in support of the rule of the Church forbidding marriage after divorce. 1 The burden of sustaining this rule in face of an unsympa- thetic law, nominally Christian, was evidently oppressive. Some years earlier the First Council of Toledo regulated the standing of a concubine, but only as a matter of Chris- tian discipline, and on the same ground required a conse- crated virgin who had contracted marriage to separate from her husband, without calling in question the validity of the marriage. But about the same time we find Innocent of Rome going a step farther. In a decretal letter he claimed the right to determine a case of marriage, in which grave injustice would be done " nisi sancta religionis statuta pro- viderent." A wife having been carried off by invading barbarians, her husband married another, as allowed by law ; on her return from captivity the Pope ruled that her husband was still bound to her, and must separate from the other partner whom he had taken. 2 To do this was to set the authority of the Church in direct conflict with the Civil Law, and that not merely by way of dispensation, as in the case of Callistus. Here is an order to do a specific thing. These instances, chosen out of many, show three distinct lines of action in the Church : the restriction of ecclesiastical rule to a purely spiritual discipline ; an attempt to bring the imperial law into agreement with Christian teaching ; * 1 Cone. Milev, can. 17. "In qua causa legem imperialem pe- tendam promulgari." J Innocent I. Ep. ix. ad Probum. 3 In the legislation of Constantius and Theodosius the younger are instances of success in this line introducing into the Civil Law 122 OF MARRIAGE IN CANON LAW and a bolder attempt to regulate independently incidents of social order. All three activities have continued or have recurred in the history of the Church down to the present day. The decretal of Innocent I. points implicitly to the whole ecclesiastical jurisdiction concerning marriage, exer- cised throughout the West during the Middle Ages, and still exercised in some parts of the East ; the attempt to mould the civil law in accordance with Christian teaching has been resumed in modern England, while in other coun- tries the Church has in recent times accepted the function of a purely internal and spiritual control of its own members. Our present task is to examine the first of these develop- ments. For the orthodox Churches of the East, the Quinisext Council in Trullo, A.D., 692, is an important turning point, as in other matters of discipline, so also in regard to mar- riage. It was now definitely ruled, contrary to a wide- spread practice of previous ages, that priests and deacons should not be debarred from the use of marriage, though they were forbidden to marry after ordination ; and deposi- tion was threatened, with a special reference to the Roman Church, in case any bishop should exact a promise of absten- tion. Bishops themselves, however, were forbidden to cohabit with their wives, who were required to retire to a monastery at some distance. Censures were provided for a priest who should bless unlawful nuptials, and the pre- tended union was to be dissolved. A monk attempting marriage was to be treated as a fornicator. A rule of spirit- ual kinship was established, by which a sponsor at baptism was forbidden to marry the mother of his god-child, the marriage being treated as void. In explicit extension of the impediment of collateral affinity. Cod. Theod., iii. 12, Deincestis nuptiis. EASTERN CANON LAW 123 rules laid down by St. Basil the Great, marriages of uncle and niece, or of father and son with two sisters, and con- versely, were made unlawful, separation being enjoined. The prohibition of marriage with unbelievers was extended to the case of heretics, but the marriage of two unbelievers or of two heretics was to stand good after the conversion of one party, on the ground of St. Paul's saying that the unbelieving husband is sanctified by the wife. Attempted marriage after divorce was declared to be adultery, as also was marriage contracted after a long absence of husband or wife ; in this case actual proof of death was required to make marriage lawful, but some freedom was allowed to the wife of a soldier, whose death might be presumed ; should he return after her marriage to another man, he was left free to resume cohabitation with her or not, at his own plea- sure, and all the parties were to be held free from blame. Espousals, no less than a completed marriage, were to bind under peril of adultery, and a precontract was thus made a diriment impediment of marriage. The Roman Church rejected this council, and conse- quently, though several of its canons found their way into Western collections, its trenchant legislation about marriage became operative only in the East. The divergence of the two parts of the Church in matters of discipline now became definite. I shall briefly note the development of the law of marriage in the East, and then return to the more com- plicated fortunes of the Western Church. The legislation of Justinian had shown how far Christian doctrine could affect the law of the Empire, and left this sufficiently at variance with the canons of the Church. There were, therefore, two laws of marriage, perfectly distinct, and sometimes contradictory. There was no confusion of Church and State, though there was a close alliance, the Church being on the whole subservient. After the Quini- 124 OF MARRIAGE IN CANON LAW sext Council, however, the canonical rules about marriage were enforced with considerable strictness, and gradually became predominant, as regulating social action, over the Civil Law. In the year 893 the Emperor Leo the Philoso- pher, by his eighty-third Novel, enacted that a marriage blessed by the Church should alone rank as legitimate. In 1306 Andronicus the Elder, in conjunction with the Patri- arch Athanasius, forbade any contracting of marriage with- out the knowledge and intervention of the parish priest. 1 The Empire was now reduced within narrow bounds, but the influence of the Patriarch extended far, and in this way was established an ecclesiastical control of marriage which survived the fall of Constantinople, to become the fixed rule of the Ottoman Empire. Ecclesiastical marriage was henceforth the only kind of marriage recognized as valid by the State. The Canon Law thus administered was codified at an early date. In the Nomocanon of John the Scholastic, Patriarch of Constantinople from the year 565, all the known canons of Councils, with sentences of the Fathers then gener- ally taken as binding, were digested under fifty titles, Eastern Christendom being thus supplied with a systematic treatise of a kind for which the Westerns had yet to wait many centuries. Supplemented by new conciliar defini- tions, it was at length superseded in the year 883 by a new work in the same style, which became the definitive law- book of the Eastern Church. The text was for some time treated as sufficient, but in the course of the twelfth century it was enriched with elaborate commentaries by Zonaras, Alexius, Aristenus, and Balsamon. In the thirteenth century, Arsenius of Mount Athos, afterwards Patriarch of Constantinople, set out the whole legislation of the Church 1 Milasch, Kirchenrtcht, p. 581. EASTERN CANON LAW 125 afresh in a Synopsis of a hundred and forty-one chapters. About the same time was prepared a code, the Krmcaja Kniga, for the Slavonic Churches, which held an unchal- lenged position until Peter the Great forced on the Russian hierarchy some new legislation, affecting marriage as well as other incidents of the Christian life, in which innovation passed for reform. The most striking feature of this codified system is the refusal to recognize as valid any marriage that is not con- tracted in complete accordance with law. Natural mar- riage by simple consent is not merely ignored, but strictly forbidden under pain of ecclesiastical censure ; a clandestine marriage is void. It is not any measure of publicity that will suffice ; the requirements are laid down with precision. The marriage must be blessed by the parish priest in the presence of two witnesses ; should the parties belong to different parishes, it is the priest of the bride's parish who must act, but he may delegate this function to another priest. 1 Some minor requirements of the law alone may be ne- glected without voiding the marriage. The Eastern Church has always been reluctant to distinguish between the legiti- macy and the validity of a sacrament, but the conception of obstructive impediments (Ka^Kv^ara aTroyopevn/cd), as dis- tinct from diriment (avarp7nLKd), crept in when the legal control of marriage fell to the ecclesiastical authorities. It should be observed, however, that even obstructive impedi- ments are held to suspend the effect of marriage until they be removed by dispensation, which can be obtained from any bishop, and which appears to have the effect of sanatio in radice. This strictness makes it the less remarkable that force or fear inducing marriage is treated as an obstructive impediment only, a fact which may be due to the stress 1 Milasch, pp. 582, 595. 126 OF MARRIAGE IN CANON LAW laid on the nuptial benediction as compared with the con- sent of the parties. Consanguinity within the seventh degree is a diriment impediment in the Churches of the Patriarchates, but in the Kingdom of Greece it is reckoned only to the sixth de- gree, in Russia to the fourth. Affinity is reckoned strictly to the fifth degree, and partially to the seventh, the exten- sions made by the Quinisext being still in force, but only to the third degree ; the impediment of spiritual kinship, after undergoing some enlargement, has been brought back to the form in which it was recognized by the same council. Other diriment impediments are lack of mental capacity, impotence, the lack of parental consent where required, a religious vow of continence, the pregnancy of the bride under certain conditions, existing marriage, and a third widowhood. Marriage can be contracted in a first or second widowhood, but the parties are put to penance. Diriment impediments can be dispensed with by a General Council only, or by an equivalent authority, the Patriarchal Council at Constantinople, for example, or the Holy Govern- ing Synod of Russia. There seem to be no exceptions, and impediments are not distinguished as of divine or human law. It follows that all dispensations alike must be regarded as contingent, and conceded on the ground of necessity. Even the impediment of existing marriage is not absolutely irremovable, as is seen from the practice of the Church in case of divorce. Divorce itself, as we have seen, is in the nature of a dispensation from the natural law requiring community of life in the married, and should be allowed only for the gravest reasons of necessity. The Eastern Churches were long disposed, as may be seen from the canons, so-called, of St. Basil, to follow the Jewish law, forbidding a man to continue marital cohabitation with an adulterous wife, but in the fourth century Christians had not all learnt DIVORCE IN THE EASTERN CHURCH 127 to treat as adultery the sin of a husband with an unmarried woman, and his wife was not even allowed to leave him on that account. This inequality of treatment slowly and incompletely gave way. The Quinisext adjudged guilty of adultery the man who, after putting away his lawful wife, should marry another, but allowed some unspecified con- sideration for a husband deserted by his wife. It is pro- bable that a licence to take another wife was intended. An elder contemporary of the Council was Theodore of Tarsus, the Greek monk who organized the nascent English Church ; he did not forget his origin when he changed his tonsure, and his replies to questions digested under the title of a Penitential are full of references to Basil the Great and other Eastern authorities ; in these we find permission to marry very freely accorded to a husband whose wife has left him with contempt, has been carried away captive, or has been put away for adultery, and even the adulterous wife might be allowed to take a new husband after five years of penance. These may have been concessions to a rude nation of neo- phytes, but they are not to be matched in other records of the West, and they were at least based on the practice of the Eastern Churches. When the legal regulation of mar- riage came into the hands of the hierarchy, divorce was much more severely restrained than under the Civil Law, but it was still allowed on various grounds, which have been much extended, especially in Russia, by more recent legisla- tion. There is no pretence of actually dissolving the marriage. The bond remains, and the parties are not set free to contract another marriage at pleasure ; but the ecclesiastical authority can give a licence to marry in spite of this impediment, and it seems to be granted pretty freely to those who ask. 1 1 Milasch, p. 598. See the passage quoted above, p. 104. 128 OF MARRIAGE IN CANON LAW Two things remain to be noted. Preliminary espousals (fjLvrjo-reia) are reckoned essential to a valid marriage. If not blessed, they are revocable ; if blessed, they so far par- take of the nature of marriage as to constitute, in accor- dance with the ruling of the Quinisext, a bar to any other union. These provisions, however, are now of small impor- tance, since the completion of the nuptials usually follows immediately upon espousal. Holy Orders, in spite of the strict rule forbidding those already ordained to marry, is not made an impediment ; marriage actually contracted by a priest or a deacon is not annulled, even provisionally, but the offender is deposed from the sacred ministry. Thus, from the seventh century, or longer, the Eastern Churches have enjoyed a fairly consistent canonical regula- tion of marriage, and from the ninth century have been invested, by a definite Act of State, with its legal control. Two causes have contributed to this result. The Catholic Church was for ages almost conterminous with the Empire, and the authorities of Church and State, in spite of fierce quarrels on occasion, lived together in mutual respect. The Church was sometimes dominant, as during the reign of the Palaeologi, sometimes unduly subservient ; but the two powers, the two organizations of human society, have never been confused. A modus vivendi was consequently arranged, which could survive the transfer of the Empire to a dynasty professedly unchristian ; the Church maintains relations with the Ottoman State differing but little from those in which it stood towards the Christian Emperors, becomes the acknowledged organization of all orthodox Christians in the curious system of nationalities by which that State is administered, and enjoys the undisputed control of marriage in regard to its own members. This principle of close alli- ance was carried with the Church to Russia and other coun- LEGAL CONTROL BY EASTERN CHURCH 129 tries beyond the pale of the Empire, where it still subsists. Outside the Turkish dominions, the regulation of the purely civil aspects of marriage is left ungrudgingly to the State, the regulation of marriage in its religious and sacramental aspect is left as unreservedly to the Church. The State, says the Bishop of Zara, may not treat as invalid a marriage recognized as valid by the Church. 1 He is not speaking only of a State the head of which professes Orthodoxy, for he has in view his own position under the Austrian mon- archy ; the principle is universally applied. In Russia, under the influence of the Church, it is extended to all reli- gions, orthodox Christians having secured for others the privileges which they claim for themselves ; marriage is treated throughout the empire as a religious institution under the control of the various religious organizations, Christian, Jewish or Musulman, to which the people adhere. While the Eastern Churches thus perfected their system, the fortunes of the Church in the West were very different. The Empire was broken up, Christianity extended to the Northern nations before it was completely organized, and the religious control of life, in regard to marriage as in other respects, had to be worked out in a welter of confusion. Similar results were eventually attained, but after long delay, and with one most important difference. The Western Churches found in the coming of the bar- barians at once their trial and their opportunity. They were confronted not only with the venerable system of Roman law but also with customs and practices which had no such prestige. The ecclesiastical authorities could act more freely in face of Teutonic kings, wielding an irre- sistible power of the sword, than against the mere words of 1 Milasch, p. 582. " Der Staat kann eine von der Kirche als giltig anerkennte Eha nicht als ungiltig betrachten." M.C.8. K 130 OF MARRIAGE IN CANON LAW a Roman Emperor who could barely defend himself amid the marshes of Ravenna ; Roman citizens of the provinces overrun by invaders could lean upon their traditionary juris- prudence and the edicts of their nominal sovran, but Goths and Franks, Burgundians and Lombards, when they came within the borders of Catholic discipleship, were fain to accept the guidance of bishops and councils, or to resist with a growing consciousness of guilt. Resistance was general ; the rude customs of the nations were not easily put aside, and some strange expedients of compromise were for a time tolerated by the Church. A new penitential system, based on the Germanic custom of penalties in money or money's worth, makes its appearance, replacing or complementing the method of spiritual censures ; the mulct is a full dis- charge, and there seems to be a vast extension of St. Augus- tine's principle, " Fieri non debuit, factum valet ; " but from the fifth to the eleventh century the steady persistence of the Church is making itself felt, and certain departments of human life are brought even externally under its control. Conspicuous among these is marriage. The work was chiefly done by the continual exercise of a rather indeterminate discipline, enforcing with more or less efficiency the unquestioned rules and customs of Chris- tianity. The records are obscure, appearing occasionally in the acts of martyred bishops, which reflect the general state of society perhaps more accurately than the particular features of the cases described. Something may be gathered, however, from the genuine acts of councils, the greater authority of which was invoked when individual bishops were lax, or overborne by the self-will of kings and terri- torial magnates. We find the second Council of Orleans, in the year 536, not only renewing the prohibition of inter- marriage between a Christian and a Jew, but also peremp- torily ordering the separation of the parties so united. The WESTERN DISCIPLINE 131 Church was beginning to treat such a marriage as void in law ; in other words, the prohibition was becoming a diri- ment impediment. The same council had occasion to forbid the dissolution of marriage for some obscure cause, voluntatis contrarietate. Some years later, the third Council of Orleans allowed the continued cohabitation of parties who had con- tracted an incestuous marriage, if it could be shown that they had acted in ignorance, as neophytes, and not in con- tempt of the divine or ecclesiastical order. In the year 556, a council held at Paris renewed against the King Clothaire the prohibition of marriage with a sister-in-law, specially condemning an offender who " sacerdotem suum audire neglexerit," and forbade the practice of claiming a woman in marriage, by assignment of the King, without the consent of her parents. If the Popes seem to have had less to do with this work than might be expected, it should be remembered that after the middle of the sixth century they were held under strait control by the Emperors reigning in the East and their Exarchs at Ravenna. Great as was the veneration ex- pressed and felt for the Roman pontiff, he was for a long period rather a force in reserve than a dominant factor in the life of the Church. St. Gregory the Great stands out alone from a list of insignificant personalities, or worse, as having any conspicuous effect on the growth of institutions ; and of Gregory we have the letter addressed to Augustine of Canterbury in reply to his questions. Two of these con- cerned marriage. Augustine's question whether two brothers might marry two sisters indicates some lack of common in- formation, and the Pope's reply that it might be done since there was nothing in Holy Scripture against it, seems by implication to put the prohibitions that were current upon a basis other than that of ecclesiastical canon or custom. To another question regarding consanguinity and affinity, Gre- 132 OF MARRIAGE IN CANON LAW gory replied that the secular laws of the Roman State allowed marriages which the Church could not approve. The con- demnation of them he founded partly on the Divine Law, with a reference to the Levitical prohibitions, partly on practical experience, with a curious assertion that these marriages were found to be infertile ; he quoted also the testimony of St. John the Baptist against such unions. Englishmen, however, who had contracted incestuous mar- riages before their conversion, were to be treated with gentle- ness ; they were to be admonished to abstain from the use of marriage, not without warnings of eternal punishment to follow, but at the same time they were not absolutely to be denied baptism or required to separate under pain of excommunication, for they must not be punished for offences committed in time of ignorance. The Church tolerates some things, and discreetly connives at some things, wrote the holy pontiff, with a view to their ultimate suppression. But in the faithful such things were to be sternly repressed. 1 If the questions of Augustine illustrate the perplexities of Roman Christians in face of the customs of the new nations, the Pope's replies, with their curious inconsistencies and halting assertion of principle, show how far the Church was even yet from having a clearly defined marriage law, and how tentative was the control then exercised. It should be observed also that the Church and the Respublica are still regarded as two mutually independent and even antagonistic powers. In the Gothic Kingdom of Spain the difference, and even the distinction, of the two powers tended to dis- appear, and legislation of all kinds was effected by councils 1 Baeda, Hist. Eccl. i. 27. The letter was once considered almost certainly inauthentic, but a careful study by Mommsen (Neuts Archiv. d*r Gistllschaft fur d.d. Gischichtskunde, vol. xvii., pp. 387 seqq.) has put another face upon it. Se also Dudden, Gregory the Gnat, rol. ii. p. i3. RESPUBLICA CHRISTIANA 133 which may be regarded, according to the business transacted, as ecclesiastical or civil. The same union or confusion ap- pears in the Prankish Kingdom under the Karlings, and the results may be studied in a long series of Capitularies. The English Kingdoms learnt the same method, and the way was gradually prepared for the great conception of an uni- tary Respublica Christiana, which fired the imagination and dominated the politics of the eleventh century. The political theory into which this conception was ulti- mately reduced by a poet and statesman like Dante, by the great canonists of the thirteenth century, and by the cham- pions of the Empire in the fourteenth century, is not here our concern. These men worked upon a state of things actually existing ; their theories followed facts ; there was a practical system, involving intolerable friction, but hold- ing the field to the exclusion of any simpler device. Western Europe was a real political unit, essentially Christian by profession, in which the distinction of Church and State had disappeared. Political philosophy sought a reason for this in the natural unity of the human race, redeemed in Christ ; mankind was potentially gathered into the apostolic fellow- ship, and the actual state of things could be treated as an approximation to the ideal. But that was an afterthought ; Christendom was a working unit before medieval philosophy came to the birth. The Empire played an important part both in the practical working of the system and in the de- velopment of theory, but the system was not an outgrowth from the Empire ; it began while the Empire was in abeyance throughout the greater part of the West, it agreed neither with the traditions of the fourth and fifth centuries, nor with the conceptions of Justinian ; the translatio imperii, the conveyance of the imperial dignity to the House of the Kar- lings, did but give a wider scope to methods that were already established under the Prankish ~ monarchy. There was a 134 OF MARRIAGE IN CANON LAW Christian community, loosely but effectively knit together, which might properly be called the Church, but in a sense larger than that of St. Paul, or even of St. Augustine ; with- in this community was a tangle of local authorities, spiritual and temporal ; there was a temporal chief, the Emperor, invested with shadowy and indeterminate powers ; there was a spiritual chief, the Pope, exercising powers indeter- minate and therefore capable of extension, but real and terribly effective. Such was the position when the Saxon Emperors by their personal exertions delivered Rome and the Church from enormous scandals, and so revived a power which was to dispute successfully with their successors the real headship of the world. It is in connexion with this system that we must consider the absolute control of the law of marriage acquired by the Spiritualty during the Middle Ages. This jurisdiction must not be confounded with that which we have seen to be already established in the East. We are not to think of a power specially conceded to ecclesiastics by the temporal authority. There was, indeed, in England an exceptional jurisdiction of this kind in testamentary matters, unknown elsewhere in Christendom, which Lyndwood could found only by guess- work " super consensu Regis et suorum Procerum in talibus ab antique concesso ; " 1 but the authority of the spiritual courts in matrimonial causes was part of the com- mon law of Christendom. Neither must we draw too close a comparison with the action of Innocent I, cited above ; for here there is no other law to be set aside by the rule of the Church. What we see is the final outcome of the assump- tion of supreme authority in such matters by the Church, which characterizes the Gallican councils of the sixth cen- tury. It has borne this fruit precisely because of an appar- 1 Provinciate, p. 176, s.v. Ecclesiasticarum libertatiim, and p. 263, s.v. Ab olim. POWER OF THE SPIRITUALTY 135 ent check in the mixed councils of the eighth century. The merger of Church and Kingdom in a single community has, after all, made a new differentiation necessary, and it takes the form of a differentiation of function within the body. The * Church regulates marriage all through, but first as against the secular law of the Commonwealth, of Emperor or King, afterwards in undisputed sway as the universal organi- zation which has swallowed up all forms of human society. In this second stage the control eventually falls into the hands of the Spiritualty. In England, before the end of the twelfth century, Glanvill has openly acknowledged the exclusive competence of the spiritual forum to determine the validity of a marriage. 1 The work is done by the same hands as in the first stage, by the bishops and their officials, and there is thus an appearance of identity, but the position is fundamentally changed. The spiritual authority is no longer opposing and correcting the law ; it is making the law and administering the law. This power of the Spiritualty in regard to marriage should be traced to its true cause. We must not, with some modern theologians and canonists, base it on a recognition of the sacramental character of marriage, for it was in full vigour before the doctrine of the sacraments was sufficiently de- veloped and defined to produce such an effect. We must not refer it to the peculiar circumstances of Western Europe, for we have seen a similar result produced under other conditions in the East. It was probably due in the first place to the intimate connexion of pure morality with marriage law, and was established by the growing conviction that this was of divine and not of human ordering. The Divine Law was crudely conceived in terms of the Levitical books, but even so it conquered men's imagination. Of those sacred books 1 Pollock and Maitland, Hist, of English Law, ii. 367. 136 OF MARRIAGE IN CANON LAW the spiritual chiefs of the Church were the guardians and the interpreters, and they were no less the teachers and vindi- cators of morality ; on both grounds they were the natural protectors of marriage. They would have been this even had the confused juris- diction of mixed councils and mixed tribunals continued. The differentiation of function which took its place threw everything into their hands. This differentiation, tradi- tionally attributed in England to a single legislative act of the Conqueror, was part of a great and slow movement of thought, which culminated in the codification of Canon Law. In the West, as in the East, but with less publicity, collec- tions of canons had existed from early times, and some were expressly approved by important councils. In the middle of the sixth century Dionysius Exiguus made a new depar- ture by adding to the conciliar decrees which he gathered from all sources the decretal epistles of the Bishops of Rome that were preserved in the pontifical archives. Early in the seventh century, a collection of the same kind, doubt- fully attributed to St. Isidore of Seville, was made and pub- lished in Spain. The ninth century saw the production of the forged decretals. In the year 1086 Anselm of Lucca put out a new and enlarged collection, and early in the twelfth century Ivo of Chartres composed his Panormia, or Pannonica, in imitation of the Pandects of Justinian. But something more was demanded. All these works were mere accumulations of disconnected matter, words of the Church uttered in varied accents of authority. In the year 1151 appeared the Concordantia discordantium Canonum, or Decretum of Gratian, which marks a new departure. It is a digest, laborious but uncritical, of all the heterogeneous matter previously collected ; canons and decretals are no longer set down side by side, to be read independently or compared with one another by the reader ; they are dis- THE DECRETUM OF GRATIAN 137 perse d under systematic headings according to their subject, and illustrated by citations from Holy Scripture, by extracts from the writings of the Fathers and by comments of the author himself. The purpose of this study can easily be ascertained. Canon Law had hitherto been a mass of ecclesiastical traditions, maintained and administered by local hierarchies, agreeing with each other more closely than might be expected, but yet full of diversity, and kept in such unity as they possessed only by appeals to Rome and by the occasional supervision of the authority which the Popes had gathered to themselves in the course of ages. This customary law, residing in the breast of judges and ad- ministrators who had nothing else to guide them but a quan- tity of indeterminate records in the current collections, had given satisfaction because it was in keeping with the general practice of Western Europe. But the revival of the study of the Roman civil law in the eleventh century awakened new desires. In the schools of Bologna men read the Corpus Juris Civilis, and found there an ordered system which made them dissatisfied with the confusion of the existing practice. The science of jurisprudence sprang into existence. An ecclesiastical Justinian, occupying the Holy See, might have produced a new Code, with Pandects and Institutes, but that was possible only in a time of peace and as the fruit of the long labours of jurists, and the Popes were en- gaged in arduous struggles which held their attention to the most pressing needs of the moment. This struggle however, while it hindered such a work, made the need of it more urgent. The Popes were standing firm against the growing power of the Emperor, and labouring to differentiate those spiritual matters which should be under the exclusive con- trol of the Spiritualty. The recovery of the Civil Law, and the enthusiasm with which it was received, threatened an immense aggrandisement of the imperial power ; should the 138 OF MARRIAGE IN CANON LAW German Caesar become in very deed the Princeps of Justin- ian's laws, the Pope would play a subordinate part in the Christian commonwealth. The current laws of the Church must be systematized to meet this invasion. If the old code was put forward as representing a juristic ideal to which the whole administration of law should conform, and against which a floating mass of custom could not hold its own, a new code must be formed out of the current laws which should have the same advantage of compactness and accessibility, with the added weight of a more spiritual authority. What the Popes could not do a private student might at least begin, and Gratian's Decretum was born. It had an immediate success. It was read and glossed. It took its place beside the Corpus luris at Bologna. It soon reached the incipient schools of Oxford, lagging behind its rival there by a bare decade of years. Within two genera- tions the glossators had done so much work that their com- ments also had to be codified, and were reduced to common form in the Glossa ordinaria, which became an integral part of the text. After the glossators, the canonists, who were to the new code what the jurists were to the old. Sinibaldi Fieschi, afterwards Pope Innocent IV, was the father of them. If the glossators tried to ascertain the true sense of the text, the canonists laboured to expound it in application to cases, and to bring it into relation with cur- rent but uncodified usages. In the meanwhile, Gregory IX had summoned the industry of Raymond of Penafort to digest in similar fashion the new matter which had accumu- lated by legislation since the time of Gratian. Boniface VIII and Clement V followed his example, and two further supplements completed in the year 1483 the Corpus luris Canonici. This great digest was designed for a double use. It was a textbook for Canonists, the foundation of study and of DEVELOPMENT OF LEGALISM 139 lectures in the Universities ; it was also a practical guide for ordinaries and advocates in the spiritual courts. A con- siderable part of it is devoted to the law of marriage, which brought to those courts much lucrative business. It was at once the consequence and the furthering cause of a great revolution. The systematizing of the Canon Law has been described alternatively as the greatest triumph and the greatest disaster of the Church. Perhaps the two judgments may run into one. It was a triumph for the Church to im- pose its penitential discipline upon the unwilling as effective law, but in this triumph the Church may have suffered its worst loss. Spiritual discipline is concerned first with the good of souls, systematic law with the good of society. In canonical process the original end of discipline was nomin- ally kept in view, and an offender was brought into court pro salute animae ; but matters of a much more mundane char- acter engaged the attention of ecclesiastical judges, who were compelled to use both the minor and the major cen- sures of the Church for the enforcement of 'decrees that were remote from the affairs of the soul. When Popes arrived at the point of employing excommunication as a weapon of war in a quarrel with men against whom they had themselves taken up arms and formed alliances, they were following in the track by which the practice of the Canon Law had led them. Another fault of the system was a certain confusion of values. Men are prone to take legality as the measure of light, and the moral teaching of the Church was originally set over against a mere legality, requiring a service of love that could not be enforced. The law winks at evils which can be endured without public disaster, or which cannot be suppressed without dangerous disturbance of social order. When spiritual discipline passed into the category of formal law the moral witness of the Church was inevitably weakened. This would probably have happened, even if it had remained 140 OF MARRIAGE IN CANON LAW a thing apart from mundane concerns ; but when the Church undertook the legislative and judicial functions of a civic community, the trouble was intensified. There was a recur- rence of those evil results of Theocracy which we have observed in the Jewish system. The Church was at once teacher of the Divine Law, director of religious conduct, and legislator for the temporal needs of human life. All three functions are needed in respect of marriage, but they can be kept apart ; the concentration of them in the hands of the Spiritualty led to a blurring of boundaries. Canonists laboured to draw clear lines, but it was not easy for the common sort to distinguish between the immutable precepts of the moral law and the present requirements of a paternal government. Decretals were law for the whole of Western Christendom. But they were imposed upon a vast body of unsystematic and customary law, varying from region to region, from realm to realm. 1 Now when this kind of thing happens, there may be various results. Customs may be overruled at once by written law, they may be slowly modified by the pressure of ordered theory, or they may stubbornly hold their own even to the nullification of the imposed law. From the time of Edward I we have been familiar in England with the principle that statute law overrides customary law. The reason is obvious. England, except for some local fran- chises, was an unitary kingdom, and statute law was the expressed will of the King and his people, who thus volun- tarily abandoned any custom contrariant to the new legis- lation. But Christendom, though unitary in theory, was in fact minutely divided ; decretals came from a hierarchical 1 It is the German distinction of Juristenrecht and Volksrecht (Gierke-Maitland, Political Theories of the Middle Ages, p. xiii.), not the English distinction of statute law and common law. CHECKS ON IUS COMMUNE 141 superior, who did not seek the consent of those concerned ; must their customs give way ? The answer of the canonists may have been due to the impossibility of enforcing in re- mote corners of Europe the decrees that issued from Rome, but that is only to say that in the true spirit of jurisprudence they took account of facts ; whatever the cause, their con- clusion for the negative was effectively received, and local custom contrariant to a decretal was held to bar its opera- tion. A prescription of forty years was sufficient. In like manner a notorious desuetude of the same length of time might, under stringent conditions, abrogate a law previously in force. It is evident that a custom of the Church may be either universal or particular and local, but when canonists speak of consuetudo without specification they mean the latter kind only, which they set over against the ius commune, or general law of Christendom. This law ran everywhere alike. We must not turn aside to the notion of a foreign Canon Law, foreign to each several country or locality, or native per- haps only to the Roman diocese, which would not be in force except where it was definitely received and confirmed by local adoption. This notion was probably borrowed from the circumstances of the Reception of the Roman civil law in Germany ; it has vitiated much discussion of the subject in England, but has been put to final rest, one may hope, by the magistral work of Maitland in his essay on " Roman Canon Law in the Church of England/' Yet Maitland's own present- ment of the case was not flawless. He spoke of the decretals as " absolutely binding statute law," which they were not, since they could be nullified by contrary custom. He seems to have regarded such custom as an external obstacle, hinder- ing the proper working of the Canon Law, to be evaded or accepted with resignation by ecclesiastical ordinaries. But local customs were not external to the Canon Law ; they 142 OF MARRIAGE IN CANON LAW were themselves part of the system. In a Roman court an English or a Danish custom might be imperfectly known, and a cause pending from one or the other country might be erroneously determined by reason of such ignorance, but if pleaded and proved it would be as good law there as in a local tribunal. 1 The law of marriage was singularly uniform throughout the Western Church, but a right understanding of the nature of Canonical custom is required for the elucidation of one exception, the importance of which has been greatly exaggerated. According to the ins commune, a child born out of wedlock would be legitimated by the subsequent marriage of his parents. A custom of the realm of England put a certain restraint on the operation of this law, for in regard to inheritance such legitimation was not recognized. The reply of the barons, " Nolumus leges Angliae mutari," to the plea of the prelates at Merton, in the year 1236, for the reform of this bad custom, has been extolled as a declar- ation of national independence ; but it was nothing more than a profession of blockish conservatism. It was effective, and to this day the injustice continues. In England alone, I believe, and in countries deriving their law from England, legitimation by subsequent marriage is disallowed. But the operation of the custom was confined within the strait- est limits. The ecclesiastical courts, but for the special privilege by which in England they administered testa- mentary law, might probably have ignored it ; as it was, they declined to recognize its validity, except only when determining questions of inheritance a ; in purely spiritual 1 There is useful criticism of Maitland in Mr. Ogle's book, The Canon Law in Mediaeval England, but Maitland 's chief arguments remain uncontroverted. 2 Even this exception is doubtful. See Pollock and Maitland, op. cit., vol. ii., p. 378. ADMINISTRATION 143 matters they followed the general law. But with this limi- tation the custom was recognized as a valid exception within the general law of marriage. To describe it as a custom of the realm and not of the Church, or as an external restraint put upon the law of the Church, is to set up a distinction which was not valid at this date. The realm of England was merely a local division of the Christian commonwealth, and a custom of the realm was a consuetudo existing within the Church. This case apart, local customs affecting the law of marri- age were few and unimportant. From the tenth century on- ward there was one law, finally digested in the Corpus luris and in the books of the canonists, for the whole of Western Christendom. This law contained all those divisions which have been set out above under the general head of Human Law. It remains to indicate briefly its principal characteristics. Juridically, the law was administered by the bishops in their several jurisdictions, but there were numerous exempt districts, called in England " peculiars/' which were wholly or partly withdrawn from the control of the diocesan bishop, and subject either immediately to the Roman See, to another bishop, or to an inferior prelate as ordinary. In the eleventh century the judicial work of a diocese was for the most part entrusted to the archdeacons ; later, the archdeacons them- selves acquired an independent but subordinate jurisdiction, and their former work passed to the newly constituted courts of the bishop's Official and Vicar-General, these two offices being in England usually amalgamated under the title of Chancellor. In all cases alike the bishop was the source of authority, and capable of acting in person, but his officials became something more than delegates and exercised their functions ex iure. There was thus an extremely complicated judicature, concerned with the issue of dispensations and with the hearing and determination of causes. 144 OF MARRIAGE IN CANON LAW There was a complete system of appeals, first to a provin- cial court acting with the authority of the metropolitan, and thence to the court of Rome. Moreover, some dispensations and some contentious causes were reserved to these higher authorities, whose courts thus became tribunals of first instance. In England, for example, a dispensation from the rule requiring marriage to be contracted in facie ecclesiae was granted only by the Archbishop of Canterbury. A dis- pensation from the impediment of certain grades of consan- guinity and affinity was reserved to the Pope. I have shown cause for supposing that these limitations of the power of a bishop are in the nature of things inconclusive, and that a bishop cannot even by consent divest himself of the plenary authority of the apostolate. Appeals, reserva- tions, and exemptions belong to an economy which is toler- ated in the interest of order and good administration, and which a bishop is compelled to accept by the practical pres- sure of a power to depose him residing in the general episco- pate. By the operation of this pressure, as also by the good sense of all concerned, a hierarchy of jurisdiction has been established in all parts of the Church, to be disturbed only under the greater pressure of circumstances demanding reform by revolutionary methods. In other words, ecclesi- astical law, so far as it concerns the mutual relation of bishops, is founded on a consensual compact, from which any party has an inalienable right to withdraw. But the Canon Law of the Middle Ages did not rest upon this Cyprianic principle. It rested on the supposition of the Papacy, which must be distinguished in principle from any superiority vested by ecclesiastical custom in the Roman Pontiff. To the Pope was attributed a legislative and judicial power distinct from that of the episcopate ; and this doctrine, though not formu- lated until the period of the councils following the Great Schism, was producing fruit in action at least as early as THE PAPACY 145 the tenth century. The privileges of exempt jurisdictions, the rights of metropolitans, the system of appeals, though traceable in history to local or general customs, were in juristic theory referred to that kind of papal concession which in some cases actually existed. Thus it came about that even the powers left to a bishop could be represented as vested in him by a revocable grant. The truer concep- tion, however, could not be suppressed ; and hence there were current two sharply contrasted opinions : the one that a bishop could dispense in all cases not expressly withdrawn from him ; the other, that he could dispense only in cases expressly referred to him by law. I here include the issue of dispensations among juridical functions because the more important kind, the contingent, must be regarded as belonging to the category of disciplin- ary judgments ; and indeed absolute dispensations also, though in principle legislative acts, were in the medieval system granted as if by judicial process, distinctively known as that of voluntary jurisdiction. It was a mode of doing business to which the habits of the time lent themselves in many departments. The contentious jurisdiction of the spiritual courts covered both the fact of marriage and its consequences. The most important cases were those in which the validity of a con- tract, and the reality of the resultant state of marriage, were in question. The existence of an impediment, the authen- ticity and legitimacy of a dispensation removing it, the ratifi- cation of a contract per verba de praesenti, the actual consum- mation of the marriage, were matters to be determined by evidence. The procedure of the ecclesiastical tribunals and their regulae iuris were borrowed almost entire from the Civil Law, which was already the object of keen study at the time when the system of courts was framed. On the validity of a marriage depended the legitimacy of the issue, M.C.S. L 146 OF MARRIAGE IN CANON LAW which was thus determined, directly or indirectly, by these courts. But the judge did not merely declare an invalid marriage to have no binding effect on the parties ; he re- quired them under pain of the severest censures to separate and live apart. The process was disciplinary, pro salute animae. It was, therefore, not only on a petition of one of the parties that a pretensed marriage could be annulled ; the spiritual judge could proceed against them on the strength of any information received. Information might be laid by a person interested in bastardizing the issue, but the court ignored such motives. A party might, however, pray for relief from the responsibilities of a colourable, though invalid, marriage, or from the false assertion of a clandestine con- tract which would be valid ; hence the suit for jactitation of marriage. Second only in importance was the jurisdiction of the courts in the matter of divorce. In this case one of the parties alone might pray for release from the obligation of cohabiting in bed and board, the grounds for such release being determined by law. I have shown that release of this kind is in the nature of dispensation from natural law, and it was therefore given reluctantly on the score of necessity. More obvious was the right of the court, in case of unlawful separation, to require the parties under pain of disciplinary censure to resume cohabitation. A temperate control was exercised over the community of goods proper to the state of marriage ; claims arising out of this were severely re- stricted when the parties had contracted clandestinely, and not in facie ecclesiae ; the courts claimed the right, when annulling a marriage for certain causes, to assign one party a moderate alimony at the charges of the other, and a like provision could be made in case of divorce. The effective sanction for all decrees of the courts was found in the infliction of spiritual censures. The foundation COERCIVE METHODS 147 of the whole procedure was disciplinary ; and this became evident, however juristic the matters dealt with and the methods might be, when coercive measures became necessary. The coercion applied by the ecclesiastical courts was purely spiritual, the ultimate sentence for the recalcitrant being the major excommunication. This involved, even at the bottom of the hierarchic scale, the abuse of spiritual weapons for determining temporal disputes which was the source of conspicuous scandals in higher quarters. Already in the eleventh century St. Peter Damian protested in vain. The abuse continued, and became more flagrant. It was self- destructive, for the censures so misapplied lost their terrors. The malediction of the Church, reinforced by the public opinion of the faithful, which St. Paul found effective in the case of the incestuous Corinthian, proved insufficient for the maintenance of social order when it was invoked for the correction of minor faults in the general body politic. The Spiritualty had undertaken the administration of essentially temporal affairs, and needed the help of the temporal arm. That help was sought only in the last resort for the suppres- sion of contumacy, and it was not sought in vain ; the Chris- tian commonwealth had to stand by its ministers. In Eng- land this temporal support took the form of the King's writ de excommunicato capiendo ; a recalcitrant subject, who would not yield to spiritual censures, was imprisoned on the information of the spiritual judge until he should make sub- mission. The ecclesiastical courts were thus made effective for the administration of justice, to the detriment of their spiritual character. Judges and other officials were secu- larized, being frequently clerks in minor orders only ; the discipline of the Church degenerated into a business of police. The legislation of the Church in regard to marriage was fairly complete before the codification of the Canon Law, and 148 OF MARRIAGE IN CANON LAW few changes of importance were effected during the Middle Ages. The Lateran Council of the year 1215, however, drastically reformed the current practice in the matter of the impediments of consanguinity and affinity. From the sixth century onward there was an increasing tendency to look back to the Mosaic law as a permanent expression of the will of God, those provisions which seemed to conflict with this view being treated as prophetic dispensations. It thus became possible to acknowledge a Divine Law, distinct from the law of nature, which should bind only the covenanted people of God. To this Divine Law were referred the impediments in question. But there were two possible ways of reading the law. The prohibition might be confined to cases expressly mentioned in the levitical books, perhaps with the addition of others exactly similar, or there might be found some general law which could be applied to all cases alike. Both methods of interpretation were used, but the latter prevailed. The Church had previously made special prohibitions, additional to those set up by the laws of the Empire ; it now became usual to rely on the levitical rule forbidding a man to have carnal knowledge of one who was " near of kin to him." We have seen St. Gregory the Great definitely opposing this Divine Law to the laws of the Roman Commonwealth. But to apply the law it was necessary to determine the meaning of cognatio, and an interpretation was sought from 'the rules of succession in the Civil Law. According to these, cognates were recognized to the sixth degree, or in some cases to the seventh, and thus the kindred with whom marriage was forbidden included all the descendants of a man's sixth or seventh ancestor. But in the course of the ninth century the Latin Church, while adhering to the seventh degree as the limit, adopted a new method of computation, known as Computus Germanicus, which greatly extended the area of prohibition. Such a RESTRICTION OF IMPEDIMENTS 149 law of exogamy was impracticable, and it is not clear whether consanguinity in the more remote degrees was treated as a diriment impediment. The practical inconvenience of the rule was remedied by a constitution of the Lateran Council limiting the prohibition to the fourth degree colla- teral, and making the impediment in all cases diriment. It was also made plain that consanguinity arising out of illicit connexions had the same effect as that arising out of marriage. The impediment of affinity, derived by the Christian Church from the Mosaic law, declared by St. Paul to be recognized by Gentiles in the first degree, 1 but carried no fur- ther in the Roman civil law, was logically developed in the course of the eighth century in precise agreement with that of consanguinity. It was not based, as in the civil law, on the entire union of man and wife effected by a lawful marri- age, but on the bare fact of carnal copulation, interpreted in the sense of St. Paul's saying that, " he that is joined to a harlot is one body." 2 A man was forbidden to marry a woman with any of whose kindred to the seventh degree he might have had unlawful connexion. Nor was this all, for the more artificial affinities recognized by the Quinisext Council passed current for a time in the West also, and a man contracted affinity, not only with those of his wife's or paramour's blood, but also with those of her proper affinity, and, further, with those related to her in this same fashion ; a fourth kind of affinity was discovered by the ingenuity of theologians to exist between the children of a widow married a second time and the kindred of her former husband. These refinements were tempered to the fourth or second degree ; but even so, in a lax state of morals, a man would be surrounded by a network of relations, secret 1 j Cor. v. i, 8 Ibid. vi. 15. 150 OF MARRIAGE IN CANON LAW and avowed, which made lawful marriage almost impossible for him ; nor was it easy to ascertain that in seeking dispen- sation he had set out all the particulars requisite for its validity. The Lateran Council made short work of this intolerable state of things, and of the rich harvest for prac- titioners in the courts resulting from it, by sweeping away the artificial kinds of affinity and by reducing the impediment of natural affinity, like that of consanguinity, to the fourth degree collateral. These reforms involved an important corollary. It was not pretended that the Church could modify the Divine Law, therefore the Council implicitly condemned the pro- position that the abrogated impediments were of divine law. But it also weakened the contention that the levitical impediment of cognatio in ^general was of divine law ; for how could the Church, in that case, vary by an arbitrary decree the limit of kinship ? A return to the recognition of the law of nature as the only divine law of marriage was not then possible, and those who held to a separate ius divinum were constrained to limit the impediments of this law to the cases specifically mentioned in the Mosaic books, or to draw artificial distinctions between those very cases. There were consequent disputes which affected the practice of dispensation, and which set all Christendom by the ears when Henry VIII of England sought relief for a carefully burdened conscience. Of minor legislative achievements of the Church it may suffice to mention three : the continuous attempt to put down clandestinity, the classification of impediments, and the regulation of procedure. Under the last head should be observed the rule that a marriage de facto contracted, even if a diriment impediment be known to have existed, must be accounted good until sentence of nullity has been pronounced by a competent CLASSIFICATION OF IMPEDIMENTS 131 court. Moreover, since process was always pro salute ani- mae, with the express purpose of putting a stop to unlawful cohabitation, no proceedings could be instituted in foro externo after the death of either party had brought the wrong doing to an end. Canonists commonly trace this rule back to the twenty-fifth canon of the Gallic Council of Agde, A.D. 506, but the thread of connexion is slender. The council forbad men to put away their wives privately, on the ground of an alleged impediment, without referring the matter to the ecclesiastical authorities. The later rule would cover such a case, but it went further, and was a vindication rather of the majesty of law than of the sanctity of marriage. It had considerable importance as affecting the legitimacy of children, who could not be put in danger of bastardy after the death of one parent. Against the obvious merits of the rule must be set the fact, abundantly proved in experi- ence, that by the skilful management of a collusive suit, pro- longed if necessary by appeals on interlocutory decrees, a notoriously unlawful marriage might be upheld until death put an end to the procedure. In this, as in other ways, the intricacy of the marriage law and the cumbersomeness of canonical process gave an immense advantage to wealth unscrupulously used. The distinction and classification of impediments, partly by positive enactment, partly by scientific determination, is one of the chief departments of Canon Law. We have seen that prohibition of marriage in certain circumstances was regarded as within the province of the Church from the beginning, but the right to declare a forbidden marriage null and void, or in other words to create a diriment impedi- ment, was slowly and reluctantly alleged. Reliance was placed at first on a reading of the Divine Law which could hardly be maintained ; an impediment so established was by an afterthought put on another basis when juristic studies 152 OF MARRIAGE IN CANON LAW made a better analysis possible. Impediments diriment and obstructive were then clearly distinguished, and the power of the legislature to impose a prohibition of either kind was recognized. What was at first merely disciplinary changed its character when the discipline of the Church came to be employed for the legal regulation of marriage. It is no part of my task to deal in detail with the legislation of the Church about impediments and dispensations, but it may be well to note as an illustration of method the treat- ment of the impediment of tempus feriatum. In the fourth century the Council of Laodicea had forbidden the cele- bration of marriages in Lent. The meaning is not quite clear ; birthdays are coupled with marriages, and the canon may look rather to the usual festivities of the occasion than to the actual contract. 1 There is no ground for supposing the prohibition to be a novelty. Yvo of Chartres and Gra- tian cite a Council of Lerida as extending it to the whole period from Septuagesima to the Octave of Easter, and making the same rule for Advent and Christmastide, and for the three weeks preceding the feast of St. John the Baptist. What is here forbidden is nuptias celebrare, but it is added, " si factum fuerit, separentur," which seems to imply that the contracting of marriage at these times is forbidden, and that the impediment is diriment. 2 This council cannot be traced ; no such canon was adopted by 1 Can. 52. Ou Set eV T 8 3> 191. 20 7 Harnack, on the origins of Canon Law, 69 f . Hefele, 120 Helvetic Reformation, 166 Henri IV of France, Edict of, 176 Henry VIII, 101, 103, 150, 158, 165, 177, 181 Hermas, on cohabitation with adulteress, 25 Pastor, 118 Hincmar of Reims, on con- summation of marriage, 48 Hooker, Richard, on human law, 59 on sacraments, 41 on union of Church and State, 1 7<9 Hort, The Christian Ecclesia, 109 Hugh of St. Victor, 84 Human law v. Divine law, 60, 75 v. Natural law, 59, 66, 68 Human love, 3 Ignatius, St., 117 Illiberris, Council of, 119, 155 Impediments, affinity, 31, 123, 126, 149 civil in France, 205 classification of, 151 cognatio spiritualis, 126, 157 consanguinity, 30, 126 crime, 158 diriment, 82 fi., 125, 153 disparitas cultus, 80, 130, 154, 216 dispensation of, 145 enforced consent, 28 error, 28 force, 28 Holy Orders, 128, 155 imperfect intention, 27 Impediments, impotence, 28 in Eastern Canon Law, 126 in Jewish Law, 113 f. legal, 82, 208 ligamen, 29, 102 natural, 80 precontract, 29 publica honestas, 158 raptus, 196 restriction of, 149 tempus feriatum, 81, 152 vows of religion, 81, 154 Imperium in imperio, 68 Incest, 30, 10 1, 223 Incontinency, 53 Indissolubility of marriage, 16, 18 in medieval Canon Law, 160 Individuality, 8 In facie Ecclesiae, marriage required to be, 78, 189 Innocent I, 121 n., 122, 134 Intention, doctrine of, 55 International law of marriage desired, 220 Irish Law, 78 Isidore of Seville, 6 n., 136 lus connubii, 80 Jansenism, influence of, 196 Jesuit Theologians, The, 167 Jewish divorce, 115 Law, 112, Jurists of Leyden, see Leyden, University of Justinian, Laws of, 123 Kiddushin, act of contracting marriage, 112 Krmcaja Kniga, 125 Landeskirche, 165 Lang, Archbishop, of York, 222 Laodicea, Council of, 152 INDEX 245 Lateran Council of 1215, The, 148, 150 Lateran Council II, 155 f. Laws of Church and State con- current, 87 of marriage, different, 78 f. Legislative power of the Church, 70 of the Church, resides in the Episcopate, 71 Leo the Philosopher, Emperor, 124 XIII, 85 n., 168 n. Leonine Sacramentary, 45 Lerida, alleged Council of , 152 Levirate, Law of the, 114 Levitical degrees, 182-5 Leyden, University of, 170, 173, 221 Licence, Marriage by, 92, 238 f . Lombard, Peter, on the seven Sacraments, 42 Luther, on civil control of mar- riage, 169 Luther's revolt against Canon Law, 165 Lyndwood, Provinciate, 134 Macchiavelli, 175 Macfadyen, Rev. D., on indis- solubility of marriage, 18 n. Maitland, Roman Canon Law in the Church of England, 141 Malta, Marriage Law of, 215 Marriage, a natural institution, 3 a remedy against sin, 52 f. artificial restraints on, 57 best law of, 107 breach of bond a sacrilege, 66 crowns, 49 whether dissolved by unfaith- fulness, 105 Marriage, Divine law in, 6 equality in, 33-5 forbidden at certain seasons, 81 laws for the faithful, 74 original and natural institu- tion of, 116 purpose of God in, 5 religious institution in Russia, a, 129 sacramental character of, 15, 34-44. 54. 6 4 f - sacramental grace of, 50 sacramental, peculiar to Christians, 54 special legal disqualifications, 81 Married Women's Property Act, 99, 204 Marsiglio of Padua, 70, 164, 178 Matrimonium conscientiae, 99, 208 Matter and form, 43, 83 Mental incapacity, 26 Mielziner, The Jewish Law of Marriage and Divorce,ii2 n., 114 n. Milasch, Bishop of Zara, Das Kirchenrecht der Morgan- Idndischen Kirche, 104 n., 124 f. n., 127, 129 Mileve, Council at, 121 Mixed marriages, 201, 216 Modern State, definition of, 162 States claim regulation of marriage, 74 Mohammedan laws of marriage, 74 Monogamy, reason for in nature, 14 Morel, E. D., Nigeria, its People and Problems, 103 n. Morganatic marriages, 99 37 246 INDEX Mysteries, Greek, 43 of God, 36-43 g Philo, on, 38 seven Holy, 42 Mystery, meaning of the word, 39 Nantes, Edict of, 194 Natural law, definition of, 6 n Necessity, laws yield to, 61 Ne temere decree, 216, 227-31 Nicholas I, Responsa ad Bul- garos, 46 Nomocanon, 124 Northampton, Marquis of, case of, 185 Nullity, 82, 151 of marriage in English Courts, 78 of marriage in Roman Courts, 78 Nuptial masses, 45 Origen, on divorce, 118 f. Orleans, second Council of, 130 third Council of, 131 Pallavicino, Istoria del Cone, di Trento, 104 n. Panormia of Ivo of Chartres, 136 Papacy, 144, 164 Parental instinct, consequences of, 3 Parents, consent of, 26 Parker, Archbishop Matthew, Admonition of , 183 P atria potestas, 8, 81 Peculiars, 143 Philip of Hesse, 102 Philo, on mysteries, 38 Physical incapacity, 28 Pistoia, Synod of, 197 Plato, marriage ignored in Re- public, 63 Plato's conception of an ideal society, 7 Polygamy, n, 13, 101 dispensation for, 102 ff. English Courts on, 102 evils of, 15 Luther on, 102 of Old Testament Saints, 12 prohibited for Jews, 112 successive, 103 Portalis, 196 Pothier, Traite du contrat de Marriage, 176 n., 194 n., 195, 210 n. Power of bishops, 72 Precontract, 123, 182 Primitive man not represented by savage tribes, 4 Privilegium Paulinum, 20, 171, < 194 n. Prohibited degrees, Archbishop Parker upon, 183, 205 Puller, Fr., Marriage with a De- ceased Wife's Sister, 31 n. Punishment for disobedience to Divine law, 75 Purpose of God in marriage 5, Quaker marriages, 190, 191, 192 Quinisext Council, see Trullo. Raymond of Pefkfort, 138 Reformatio Legum, 185 Reformation, The impulse of the, 175 Reformed Theologians, The, 171 Reforms suggested, 225 Registration of marriage, 79 Remarriage after divorce, 21, 127, 185, 187, 202, 210 Remedy against sin, Marriage a, 36, 5<>. 52 f. INDEX 247 Renton and Phillimore, Com- parative Law of Marriage, 219 n. Respublica Christiana, 133, 162 Restitution of conjugal rights, 79, 204 Restriction as to age, 81 as to consent, 81 as to crimes, 82 as to season, 81 Rituale Romanum, 153 Ritual of marriage, Christian, 44 English, 48, 50 Greek, 43 Roman, 47, 49 Rituel d" 'A let, 205 n. Roman Law, definition of mar- riage in, 7 effect of the study of, 164 Roos, Lord, case of, 187 Rota at Rome, decision of, 78 Royal Marriages Act, 83, 91 Sacramental character of mar- riage, 15, 36-44, 51 ff., 64 Sacrament inseparable from Christian marriage, 55 Sacramentum, meaning of the word, 39 Sanatio in radice, 89, ioo> 125 Sarum Manual, 48 Schools of Shammai and Hillel, "5 Scottish Law, 76 ff., 87, 174, 200, 221 Reformation, 167 Seasons, marriage forbidden at certain, 81, 152 Second marriages, 58, 102 Separation of Church and State, 176, 193 resistance to, 179 separation orders, 203 Social animal, Man a, i Societas perfecta, 167 Societies within the State, 66 Sohm, Rudolf, on legalism in the Church, 68, 108, no, 165 Special licence, 92 Spiritualty, power of the, 134 ff., 188 ff. Sponsalia, 29 Standard of civilization, 2, 4 State control cannot be denied, 87 Submission of Clergy, Act for the, 178, 181 Switzerland, Federal Code of, 99 Tametsi decree, 162 Tempus feriatum, 152 Territorial exemptions from Ne temere, 217 f. Tertullian, on Marriage, 45 on marriage with unbelievers, 119 Theocracy, evils of, 116, 139 f. Theodore of Tarsus, Archbishop of Canterbury, 127 Toledo, First Council of, 121 Trent, Council of, 104, 153, 157, 167 on Clandestinity, 83, 160, i95 214 Trullo, Council in, 58, 122 ff., 127 Turkish Law, 128 Uncle and niece, marriage of, 114, 123 Uniform system needed, 219 Union marital, produces natural affection, 9 Unitary sovran state, the theory of an, 67 Urban II, Decretal of, 156 248 INDEX Valid marriage, conditions of, 27 Western Church upheld Church Veiling of Bride, 49 rule, 74 Verba de praesenti, 48, 190 Wood, E. G., on nature of dis- Virginity, St. Paul's preference pensation, 94 . for, 52 Worms, Rabbinical Synod of, 113 PRINCIPAL SCRIPTURE REFERENCES Leviticus xviii. . 182 Deuteronomy xxiv. i, 2. .115 ,, xxv. 7-10. .114 Ruth iv. 7. .114 Jeremiah iii. 14 . . 37 Hosea ii. 19. .37 Wisdom ii. 22. .38 xiv. 15, 23.. 38 Tobit vii. 14. .113 Matthew i. 18 . . 1 13 ,, v. 32. .23, 116 xvi. 18. .109 xviii. 17. .109 xix. 3-9. .116 xix. 4-8. .7 f. xix. 9.. 23 xix. ii. .97 Markx. 8.. 8 x. ii.. 23 Luke ii. 27. .113 Acts xv. 29. .117 ,, xvii. 30. .61 Romans vii. 1-3. .22 i Corinthians v. i. .32, 73, 10 1, 149 vi. I6..8 vii... 73 vii, 2-4. .16 vii. 9.. 51 vii. 10, ii. .20 vii. 14.. 57 vii. 36. .115 vii. 39.. 17, 81 Galatians v. 23 . . 52 Ephesians v. 28, 29. .10 v. 32.. 37 i Timothy iii 2. .13 v. 9..I3 James i. i . .69 i Peter i. i . . 69 Printed by BUTLER & TANNER, Frame and London, 249 WORKS BY THE RT. REV. G. H. S. WALPOLE, D.D. (Bishop of Edinburgh). Life's Chance. Demy 8vo. Cloth gilt, 43. 6d. net. Personality and Power; or, the Secret of Real Influence. Fifth Edition. Crown 8vo. Cloth, 2s. 6d. net. "The book to give a boy when he takes up his life-work." Commonwealth. "A series of thoughtful addresses on the secret of real influence. The book is one well worth careful study ; its reflections will be found stimulating." New Age. ' ' A thoughtful and beautiful book. These addresses are mature and sympathetic, and fitted to be most helpful. " Church Family Newspaper. Vital Religion ; or, the Personal Knowledge of Christ. Twelfth Edition. Crown 8vo. Cloth, 2s. 6d. net. "The keynote in this interesting and beautiful book is the thought that religion is essentially the life of friendship and intimacy with God revealed in Jesus Christ. " Guardian. " This book has the true tone of sincere and earnest piety, and the ring of honest conviction ; we like it, and we like the personality which seems to lie in peace and confidence behind it." St. Andrew. "This is a fresh and interesting presentation of a perennially important subject. . . . The book is characterised by a spirit of true devotion to our Lord, and is marked throughout by earnestness of thought and appeal. "Life of Faith. The Kingdom of Heaven ; What it is and how we enter it. Third Edition. Crown 8vo. Cloth, 2s. 6d. net. " This timely and valuable contribution to current theological thought is full of ideas presented with much freshness, as well as scholarship and sanctified com mon-sense. ' ' Guardian . " The value of this book is quite out of proportion to its size. Written with all Dr. Walpole's unfailing charm of spirit and literary grace it makes the reader think." Record. The above three volumes can be obtained in a special Presentation Edition, limp leather, full gilt back, gilt edges, silk register, 43. 6d. net each. Gains and Losses. Crown 8vo. Cloth boards, is. 6d. net. "Every line is worth reading, as all Bishop Walpole writes is marked by deep spiritual insight and sound common -sense." Rtcord. ' A stimulating book, which should startle many into serious reflection." Guardian. Daily Teachings for the Christian Year. Selected and Arranged by the Bishop of Edinburgh. Cloth, 33. 6d. net. Presentation editions, paste grain, padded, gilt lettered, J$. 6d. net ; morocco limp, round corners, gilt lettered, IDS. 6d. net. "Bishop Walpole has made an admirable collection of extracts from famous preachers, really reading like miniature sermons. They deal suitably with each day in the Christian Year." Church Family Newspaper. Paraphrase Method of Bible Study. As recommended by the Bishop of Edinburgh. Paper, id., or 6s. 3d. per 100 ; wrapper, 2d., or I2s. 6d. per 100. Edited by the Rt. Rev. G. H. S. WALPOLE and the late Rev. C. BARTON. Handy Atlas to Church and Empire. Comprising 120 Maps, Plates, and Statistical Tables, showing the Advance of Missions in All Parts of the British Empire to the Present Day. Cloth, is. 6d. net. Mr. EUGENE STOCK : " It is simply delightful, full of valuable information." BISHOP OF ST. ALBANS: "Most admirable." BISHOP OF ST. GERMAINS : " Excellent both in design and execution, and must prove of great service to all interested in Foreign Missions." WORKS BY THE RT. REV. G. H. S. WALPOLE, D.D. (Bishop of Edinburgh). Communion and Offering. Simple Instructions upon the s Office of Holy Communion, together with Helps for the carrying out of same. Fifth Edition. Limp cloth, uniform with Prayer Book, is. ; leather, 23. ; lambskin, 33. ; Persian calf, 33. 6d. Canon BENHAM : " It strikes me, at this moment, as about the best on Holy Communion which I have ever seen." The Rev. B. M. O. HANCOCK : "I feel the book is worthy of unqualified recommendation. It meets a real need ; the devotions and instructions are fervid, wise, and catholic." " The value of this excellent little book is very great. It is for busy people who want short and good prayers, and who welcome sound instruction if it can be briefly given. . . . The whole forms a singularly complete and convenient manual, and we cannot doubt that it will be widely adopted." Guardian. Holy Communion, A Simple Guide to. Cloth, 6d. The People's Prayer Book. Containing also the People's Psalter, as. 6d. net ; combined with Hymns Ancient and Modern. Cloth, 33. net. A practical Prayer Book, containing the order of Morning and Evening Prayer, with the People's Psalter and Hymns Ancient and Modern. Bound in one volume, with Explanatory Notes of the proper meaning and purpose of each portion of the service. The book, in its handy and compact form, meets a distinct need, and will prove a real help to private and public devotion. The People's Psalter. Containing the Psalms of David, together with the Litany and the Canticles and Hymns of the Church. With the Pointing of the Cathedral Psalter (by permission). Foolscap 8vo. Cloth, 23. 6d. "The usefulness of an already useful and popular work has been greatly increased. " Guardian. " This Psalter forms a volume that will prove useful and instructive to many a worshipper, and it should have a large circulation." Oxford Chronicle. The People's Psalter. A Plain Book for those who wish to use the Psalms in Church with Intelligence and Devotion. Seventh Edition. Cloth, 2s. ; leather, 33. ; lambskin, 33. 6d. ; Persian calf, 43. 6d. BISHOP OF DURHAM : ' ' The book seems to be admirably adapted for its purpose, and I trust it will have a very wide usefulness. " 41 We think that this little book may be a useful help by suggesting ways in which different Psalms may be applied to present-day difficulties and to the problems and anxieties with which the Church is always confronted." Guardian. Christ in the Home, Suitably bound in white, with gilt design and gilt top, 6d. net ; cloth gilt, IS. net. Presentation Edition, velvet leather, gilt edges, silk register, 23. net. " Canon Walpole's teaching is so emphatically timely, so faithful, so completely calculated to elevate and purify home ideals, that we commend it unreservedly." Sunday Strand. The Doctrine of the Resurrection. Paper Covers, 2d. " In the Mount of the Lord it shall be seen." The frontispiece from " Communion and Offering." Reprinted on cardboard and enlarged, size 16 ins. by 10$ ins., for use in Classes. 4