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among the heathen, and from which both the law and the practice of the Church were free. There appears bowever to have been a general agreement, that there could be no intermarriage of the faithful with heathens or with Jews. This was a common interpretation of the Apostle's words concerning marrying only in the Lord, and being unequally yoked together with unbelievers. Tertullian' appears to give the same sense to the clause of ex. ception in our Lord's prohibition of divorce, as if no marriages were invalid, but such as were contracted with heathens : and Cyprianputs the same interpretation on the Apostle's argument of making the members of Christ the members of an harlot. Ter. tullian affirms, that the law of the Creator every where takes away the marriage of the Allophyli', or persons not in the communion of the faithful; and Cyprian teaches, that marriage is not to be celebrated with the heathen". The expositions and assertions of these distinguished fathers are confirmed by a long succession of decrees of councils. The first council of Arles (A.D. 314.) forbids any Christians to marry Gentiles, under pain of excommunication, as does the council of Eliberis, (A. D. 305.) under pain of excommunication to the parents. The council of Laodicea, (A. D. 361.) and of Agde, (A.D.506.) prohibit marriage generally with heretics. The third council of Carthage, (A.D. 397.) forbids the marriage of the sons and daughters of the bishops and clergy, with heathens, heretics, and schismatics.
' Ad Ux. ii. s. 2. See Appendix, No. I. s Lib. Test. iii.
"Adv. Marcion, s. 7. Lib. Test, iii. s. 62.
66 Nor was
The council of Chalcedon, (A. D. 451.) forbids the marriage of readers with Jews, Gentiles, or heretics, under pain of canonical censure. The second council of Orleans, (A.D. 533.) forbids the marriage of Jews, pronouncing it unlawful; and if any man upon admonition refuse to dissolve such marriage, he was to be denied all benefit of communion. the civil law wanting to confirm the ecclesiastical with its sanction; for by an Edict published by Valentinian and Theodosius, which is twice repeated in the Theodosian code, and stands still as law in the Justinian code, it was ordained; If any Jew presumes to marry a Christian woman, or a Christian takes to wife a Jewish woman, their crime is put into the same class with adultery, that is, made a capital crime; and not only relations, but any one has liberty to accuse and prosecute them upon such transgression. Constantius before this had made it a capital crime for a Jew to marry a Christian woman, but laid no penalty upon the Christian marrying a Jew. But this being thought a defect by Theodosius, he supplied it by that new law, which more expressly made it capital for them both. And so all possible restraint was laid upon such marriages, that the civil power could think of*.”
When the empire became Christian, although the fathers were more busily employed in promoting celibacy than in devising just laws of matrimony, the emperors zealously concurred with them in revising the laws which regulated matrimony, and in enforcing or enlarging the restrictions which pre
Bingham's Eccl. Antiq. b. xxii. c. 2. s. 1.
viously prevailed. It was in conformity with the old laws of Rome, that Basil pronounced the marriage of slaves, without consent of masters, and of children, without consent of parents, not marriage but fornication. It was also in conformity with the ancient law, that Constantine, Valentinian, and Marcian, forbade senators, provincial governors, city magistrates, and high priests of provinces, to marry slaves, freedwomen, actresses, innkeepers, or daughters of innkeepers, of pimps, and gladiators, or sellers of small wares, without incurring the penalty of infamy and outlawry, with illegitimacy and disinheritance of the issue; and even the Curialis might not marry a slave, without condemnation of the woman to the mines, and of the man to perpetual banishment, with confiscation of goods. It was a received rule, that the parties should be of equal rank and condition, and that a person of ingenuous rank should not marry with a person of servile state or mean occupation. The laws of Theodosius continued the inhibition of marriage between provincial governors and the women of the provinces, and extended the period of widowhood to a full year.
If the wife of an absent husband should marry, without certain information of her husband's death, she was declared by the canons of Basil, repeated by the council in Trullo, to be guilty of adultery; and even the soldier's wife, notwithstanding the privilege granted by the law of Constantine, was by the same canons liable to be claimed by the original husband, and the second marriage would of course be of no effect. Constantine so far mitigated the prohibition of the guardian to marry the ward, as to permit the
former to marry the latter when she should come of age, if he had not defiled her during the minority, of which the penalty would be banishment with confiscation of goods.
In respect of marriages more properly incestuous, the imperial laws interdicted and rendered invalid the marriage of more than one wife, the marriage of a widow within a certain period, the marriage of a brother's widow and a wife's sister, and the marriage of uncles and aunts with nephews and nieces : they also interfered with the marriage of cousins.
Polygamy, ever infamous and unlawful at Rome, was made a capital offence by the law of Constantine. It was also expressly forbidden by the emperors. Theodosjus, Arcadius, and Honorius; and by Justinian, who decreed; No man who is lawfully married may bring in other wives while the former marriage subsists, or have lawful children by them. An opinion appears to have prevailed at one time at Rome, that a husband who fell into captivity fell into a servile condition, and lost his marital rights, so that his wife was at liberty to marry again. Quintilian contended that the marriage could only be dissolved by death or divorce, and that marriage, contracted without certain information of the husband's decease, was no better than adultery. The later emperors fell into this opinion, affirming the continuance of the marriage, and disallowing the woman's right to marry again, unless she obtained a divorce or waited for a period of five years, (with
y Bingham's Eccl. Antiq. b. xxii. c. 2. s. 6,7.
the exception of the soldier's wife, whom Constantine's law permitted to marry again, after she had not heard of her husband for four years,) so that the marriage might have the appearance of being dissolved bona gratia, or by mutual consent. The parties would otherwise be liable to the penalties of an unjust divorce; viz. the woman to the forfeiture of the dower, and the man to the loss of gifts before the marriage?
The law of Constantine allowed the right of marriage after divorce, only when the woman was an adulteress, a sorcerer, or a pander. It was objected to this licence, that it was contrary to the sense of Scripture“; but the objection was not suffered to prevail. Others held a middle opinion, that such marriages were not lawful, and should be prevented 'by private admonition and reproof; but that as the authority of Scripture might be disputed on the point, they did not call for ecclesiastical censure or excommunication. The law underwent various modifications, but the principal ecclesiastics were generally unfavourable to the licence which it conveyed
As adultery, under the imperial law, was a capital offence, it allowed no question of the marriage of the
Brisson de Jure Con. : 1 Cor. vii. 39. from whence it was justly argued, that the bond of marriage continued during the life of both parties, and was dissolved by the death of either of them. The Monogamists contended that the contract was indissoluble even in death, and therefore objected to any marriage but the first.
Bingham, b. xxii. c. 2, s. 12.