The laws of religion have a greater sublimity; the civil laws a greater extent.
The laws of perfection drawn from religion have more in view the
goodness of the person that observes them than of the society in which
they are observed; the civil laws, on the contrary, have more in view
the moral goodness of men in general than that of individuals.
Thus, venerable as those ideas are which immediately spring from
religion, they ought not always to serve as a first principle to the
civil laws; because these have another, the general welfare of society.
The Romans made regulations among themselves to preserve the morals
of their women; these were political institutions. Upon the
establishment of monarchy, they made civil laws on this head, and formed
them on the principles of their civil government. When the Christian
religion became predominant, the new laws that were then made had less
relation to the general rectitude of morals than to the holiness of
marriage; they had less regard to the union of the two sexes in a civil
than in a spiritual state.
At first, by the Roman law, a husband, who brought back his wife
into his house after she had been found guilty of adultery, was punished
as an accomplice in her debauch.
[24]
Justinian, from other principles,
ordained that during the space of two years he might go and take her
again out of the monastery.
[25]
Formerly, when a woman, whose husband was gone to war, heard no
longer any tidings of him, she might easily marry again, because she had
in her hands the power of making a divorce. The law of Constantine
obliged the woman to wait four years, after which she might send the
bill of divorce to the general; and, if her husband returned, he could
not then charge her with adultery.
[26]
But Justinian decreed that, let
the time be never so long after the departure of her husband, she should
not marry unless, by the deposition and oath of the general, she could
prove the death of her husband.
[27]
Justinian had in view the
indissolubility of marriage; but we may safely say that he had it too
much in view. He demanded a positive proof when a negative one was
sufficient; he required a thing extremely difficult to give, an account
of the fate of a man at a great distance, and exposed to so many
accidents; he presumed a crime, that is, a desertion of the husband,
when it was so natural to presume his death. He injured the commonwealth
by obliging women to live out of marriage; he injured individuals by
exposing them to a thousand dangers.
The law of Justinian, which ranked among the causes of divorce the
consent of the husband and wife to enter into a monastery, was entirely
opposite to the principles of the civil laws.
[28]
It is natural that the
causes of divorce should have their origin in certain impediments which
could not be foreseen before marriage; but this desire of preserving
chastity might be foreseen, since it is in ourselves. This law favours
inconstancy in a state which is by its very nature perpetual; it shook
the fundamental principle of divorce, which permits the dissolution of
one marriage only from the hope of another. In short, if we view it in a
religious light, it is no more than giving victims to God without a
sacrifice.
