8), that
the intention of procreation is essential to the conception of legal
marriage.

[313] J.A. Godfrey, _Science of Sex_, p. 119.

[314] E.D. Cope, "The Marriage Problem," _Open Court_, Nov., 1888.

[315] See _ante_, p. 395.

[316] Waechter, _Eheschiedungen_, pp. 95 et seq.; Esmein, _Marriage en
Droit Canonique_, vol. i, p. 6; Howard, _History of Matrimonial
Institutions_, vol. ii, p. 15. Howard (in agreement with Lecky) considers
that the freedom of divorce was only abused by a small section of the
Roman population, and that such abuse, so far as it existed, was not the
cause of any decline of Roman morals.

[317] The opinions of the Christian Fathers were very varied, and they
were sometimes doubtful about them; see, e.g., the opinions collected by
Cranmer and enumerated by Burnet, _History of Reformation_ (ed. Nares),
vol. ii, p. 91.

[318] Constantine, the first Christian Emperor, enacted a strict and
peculiar divorce law (allowing a wife to divorce her husband only when he
was a homicide, a poisoner, or a violator of sepulchres), which could not
be maintained. In 497, therefore, Anastasius decreed divorce by mutual
consent. This was abolished by Justinian, who only allowed divorce for
various specified causes, among them, however, including the husband's
adultery. These restrictions proved unworkable, and Justinian's successor
and nephew, Justin, restored divorce by mutual consent. Finally, in 870,
Leo the Philosopher returned to Justinian's enactment (see, e.g., Smith
and Cheetham, _Dictionary of Christian Antiquities_, arts. "Adultery" and
"Marriage").

[319] The element of reverence in the early German attitude towards women
and the privileges which even the married woman enjoyed, so far as Tacitus
can be considered a reliable guide, seem to have been the surviving
vestiges of an earlier social state on a more matriarchal basis. They are
most distinct at the dawn of German history. From the first, however,
though divorce by mutual consent seems to have been possible, German
custom was pitiless to the married woman who was unfaithful, sterile, or
otherwise offended, though for some time after the introduction of
Christianity it was no offence for the German husband to commit adultery
(Westermarck, _Origin of the Moral Ideas_, vol. ii, p. 453).

[320] "This form of marriage," says Hobhouse (op. cit., vol. i, p. 156),
"is intimately associated with the extension of marital power." Cf.
Howard, op. cit