or that the interests of society demand that all connections should be forced into the same die. Connections, which were confessedly only for a few years, have always subsisted side by side with permanent marriages; and in periods when public opinion, acquiescing in their propriety, inflicts no excommunication on one or both of the partners, when these partners are not living the demoralising and degrading life which accompanies the consciousness of guilt, and when proper provision is made for the children who are born, it would be, I believe, impossible to prove, by the light of simple and unassisted reason, that such connections should be invariably condemned. It is extremely important, both for the happiness and for the moral well-being of men, that lifelong unions should not be effected simply under the imperious prompting of a blind appetite. There are always multitudes who, in the period of their lives when their passions are most strong, are incapable of supporting children in their own. social rank, and who would therefore injure society by marrying in it, but are nevertheless perfectly capable of securing an honourable career for their illegitimate children in the lower social sphere to which these would naturally belong. Under the conditions I have mentioned, these connections are not injurious, but beneficial, to the weaker partner; they soften the differences of rank, they stimulate social habits, and they do not produce upon character the degrading effect of promiscuous intercourse, or upon society the injurious effects of imprudent marriages, one or other of which will multiply in their absence. In the immense variety of circumstances and characters, cases will always appear in which, on utilitarian grounds, they might seem advisable.

It is necessary to dwell upon such considerations as these, if we would understand the legislation of the Pagan Empire or the changes that were effected by Christianity. The legislators of the Empire distinctly recognised these con

nections, and made it a main object to authorise, dignify, and regulate them. The unlimited licence of divorce practically included them under the name of marriage, while that name sheltered them from stigma, and prevented many of the gravest evils of unauthorised unions. The word concubine also, which in the Republic had the same signification as among ourselves, represented in the Empire a strictly legal union-an innovation which was chiefly due to Augustus, and was doubtless intended as part of the legislation against celibacy, and also, it may be, as a corrective of the licentious habits that were general. This union was in essentials merely a form of marriage, for he who, having a concubine, took to himself either a wife or another concubine, was legally guilty of adultery. Like the commonest form of marriage, it was consummated without any ceremony, and was dissoluble at will. Its peculiarities were that it was contracted between men of patrician rank and freedwomen, who were forbidden by law to intermarry; that the concubine, though her position was perfectly recognised and honourable, did not share the rank of her partner, that she brought no dowry, and that her children followed her rank, and were excluded from the rank and the inheritance of their father.1

Against these notions Christianity declared a direct and implacable warfare, which was imperfectly reflected in the civil legislation, but appeared unequivocally in the writings of the Fathers, and in most of the decrees of the Councils.2

1 See Troplong, Influence du Christianisme sur le Droit, pp. 239

251.

2 We find, however, traces of a toleration of the Roman type of concubine in Christianity for some time. Thus, a Council of Toledo decreed Si quis habens uxorem fidelis concubinam habeat non com

municet. Cæterum is qui non habet uxorem et pro uxore concubinam habet a communione non repellatur, tantum ut unius mulieris, aut uxoris aut concubinæ ut ei placuerit, sit conjunctione contentus.'- 1 Can. 17. St. Isidore said: 'Christiano non dicam plurimas sed nec duas simul habere licitum est, nisi unam

It taught, as a religious dogma, invariable, inflexible, and independent of all utilitarian calculations, that all forms of intercourse of the sexes, other than lifelong unions, were criminal. By teaching men to regard this doctrine as axiomatic, and therefore inflicting severe social penalties and deep degradation on transient connections, it has profoundly modified even their utilitarian aspect, and has rendered them in most countries furtive and disguised. There is probably no other branch of ethics which has been so largely determined by special dogmatic theology, and there is none which would be so deeply affected by its decay.

As a part of the same movement, the purely civil marriage of the later Pagan Empire was gradually replaced by religious marriages. There is a manifest propriety in invoking a divine benediction upon an act which forms so important an epoch in life, and the mingling of a religious ceremony impresses a deeper sense of the solemnity of the contract. The essentially religious and even mystical character imparted by Christianity to marriage rendered the consecration peculiarly natural, but it was only very gradually that it came to be looked upon as absolutely necessary. As I have already noticed, it was long dispensed with in the marriage of slaves; and even in the case of freemen, though generally performed, it was not made compulsory till the tenth century. In addition to its primary object of sanctifying marriage, it became in time a powerful

tantum aut uxorem, aut certo loco uxoris, si conjux deest, concubinam.' -Apud Gratianum, diss. 4. Quoted by Natalis Alexander, Hist. Eccles. Sæc. I. diss. 29. Mr. Lea (Hist. of Sacerdotal Celibacy, pp. 203-205) has devoted an extremely interesting note to tracing the history of the word concubine through the middle ages. He shows that even

up to the thirteenth century a concubine was not necessarily an abandoned woman. The term was applied to marriages that were real, but not officially recognised. Coleridge notices a remarkable instance of the revival of this custom in German history.-Notes on English Divines (ed. 1853), vol. i. p. 221. Legouvé, p. 199.

1

instrument in securing the authority of the priesthood, who were able to compel men to submit to the conditions they imposed in the formation of the most important contract of life; and the modern authorisation of civil marriages, by diminishing greatly the power of the Catholic priesthood over domestic life, has been one of the most severe blows ecclesiastical influence has undergone.

The absolute sinfulness of divorce was at the same time strenuously maintained by the Councils, which in this, as in many other points, differed widely from the civil law. Constantine restricted it to three cases of crime on the part of the husband, and three on the part of the wife; but the habits of the people were too strong for his enactments, and, after one or two changes in the law, the full latitude of divorce reappeared in the Justinian Code. The Fathers, on the other hand, though they hesitated a little about the case of a divorce which followed an act of adultery on the part of the wife,1 had no hesitation whatever in pronouncing all other divorces to be criminal, and periods of penitential discipline were imposed upon Christians who availed themselves of the privileges of the civil law. For many centuries this duality of legislation continued. The barbarian laws restricted divorce by imposing severe fines on those who repudiated their wives. Charlemagne pronounced divorce to be criminal, but did not venture to make it penal, and he practised it himself. On the other hand, the Church threatened with excommunication, and in some cases actually launched its thunders against, those who were guilty of it. It was only in the twelfth century that the victory was

1 See some curious passages in Troplong, pp. 222-223. The Fathers seem to have thought dissolution of marriage was not lawful on account of the adultery of the husband, but that it was not absolutely unlawful, though not commendable,

for a husband whose wife had committed adultery to re-marry.

2 Some of the great charities of Fabiola were performed as penances, on account of her crime in availing herself of the legislative permission of divorce.

definitely achieved, and the civil law, adopting the principle of the canon law, prohibited all divorce.1

I do not propose in the present work to examine how far this total prohibition has been for the happiness or the moral well-being of men. I will simply observe that, though it is now often defended, it was not originally imposed in Christian nations, upon utilitarian grounds, but was based upon the sacramental character of marriage, upon the belief that marriage is the special symbol of the perpetual union of Christ with His Church, and upon a well-known passage in the Gospels. The stringency of the Catholic doctrine, which forbids the dissolution of marriage even in the case of adultery, has been considerably relaxed by modern legislation, and there can, I think, be little doubt that further steps will yet be taken in the same direction; but the vast change that was effected in both practice and theory since the unlimited licence of the Pagan Empire must be manifest to all.

It was essential, or at least very important, that a union which was so solemn and so irrevocable should be freely contracted. The sentiment of the Roman patriots towards the close of the Republic was that marriage should be regarded as a means of providing children for the State, and should be entered into as a matter of duty with that view, and the laws of Augustus had imposed many disqualifications on those who abstained from it. Both of these inducements to marriage passed away under the influence of Christianity. The popular sentiment disappeared with the decline of civic virtues. The laws were rescinded under the influence of the ascetic enthusiasm which made men regard the state of celibacy as pre-eminently holy.

There was still one other important condition to be attained by theologians in order to realise their ideal type of

'Laboulaye, Recherches sur la Condition civile et politique des Femmes, pp. 152-158.