[Footnote 154: For the evils arising in clandestine marriage _de praesenti_, the complexity of the law of forbidden degrees, and the conflicting jurisdiction of the temporal and spiritual courts, see chap. viii above.]
[Footnote 155: FREISEN, _op. cit._, 826 ff., 212 ff., shows that the _dispensatio summi pontificis a matrimonio rato nondum consummato_ originated with the reforms of Alexander III.; and argues rightly that these two kinds of dissolution--dispensation and orders--are in harmony with the rule of indissolubility according to the doctrine of Gratian, but not according to the existing theory. Thus, of the old eight causes which were sufficient of themselves to dissolve _matrimonium initiatum_--identical with the later _sponsalia de praesenti_--holy orders alone remains; the papal dispensation has taken the place of the other seven: _ibid._, 827, 829; _cf._ on these exceptions SCHEURL, _Das gem. deut. Eherecht_, 278-86.]
[Footnote 156: See chaps. vii and viii, above.]
Taking the church's own definition of marriage, it seems, after all, that divorce _a vinculo_ did not in reality quite disappear from the canon law. It would be a serious error to imagine that the opportunity for escaping entirely from the bonds of undesirable wedlock was restricted to the contract _de praesenti_ not followed by actual conjugal life, which in direct violation of her own theory the church was constrained to treat as an imperfect marriage. To all intents and purposes, when judged from a rational modern standpoint, the decree of nullity was a divorce proper. Practically speaking, it cannot be doubted that there existed a very wide liberty of divorce in the Middle Ages, though it existed mainly for those who were able to pay the ecclesiastical judge for finding a way through the tortuous maze of forbidden degrees.[157] In a divorce procedure masquerading under the guise of an action for nullifying spurious marriages lurked the germs of perjury and fraud. When both persons were willing to separate, the matter must have been easy enough by collusion; and when one consort was tired of the other, the ecclesiastical court for money would be able to find good reasons for effecting his release.[158] "Spouses who had quarreled began to investigate their pedigrees and were unlucky if they could discover no _impedimentum dirimens_" or cause which would have prevented the contraction of a valid marriage.[159] "The canons prescribing the prohibited degrees of relationship were marvels of ingenuity. Spiritual relationships, those gained in baptism, were recognized no less than natural relationships, and equally with them served as barriers to legal marriage. Marriage was prohibited within seven[160] degrees of relationship and affinity; and none but the astutest students of the law were able to unravel so complicated a system. The annulling of marriages, which had been contracted within the prohibited degrees, became a flourishing business of the Church. No exercise of its power yielded more money, or caused more scandal. So tangled was the casuistry respecting marriage, at the beginning of the sixteenth century, that it might be said that, for a sufficient consideration, a canonical flaw could be found in almost any marriage."[161]