Chapter 26

It is important to remember that, while Christianity brought the idea of marriage as a sacrament into the main stream of the institutional history of Europe, that idea was merely developed, not invented, by the Church. It is an ancient and even primitive idea. The Jews believed that marriage is a magico-religious bond, having in it something mystical resembling a sacrament, and that idea, says Durkheim (L'Année Sociologique, eighth year, 1905, p. 419), is perhaps very archaic, and hangs on to the generally magic character of sex relations. "The mere act of union," Crawley remarks (The Mystic Rose, p. 318) concerning savages, "is potentially a marriage ceremony of the sacramental kind.... One may even credit the earliest animistic men with some such vague conception before any ceremony became crystallized." The essence of a marriage ceremony, the same writer continues, "is the 'joining together' of a man and a woman; in the words of our English service, 'for this cause shall a man leave his father and mother and shall be joined unto his wife; and they two shall be one flesh.' At the other side of the world, amongst the Orang Benuas, these words are pronounced by an elder, when a marriage is solemnized: 'Listen all ye that are present; those that were distant are now brought together; those that were separated are now united.' Marriage ceremonies in all stages of culture may be called religious with as much propriety as any ceremony whatever. Those who were separated are now joined together, those who were mutually taboo now break the taboo." Thus marriage ceremonies prevent sin and neutralize danger.The Catholic conception of marriage was, it is clear, in essentials precisely the primitive conception. Christianity drew the sacramental idea from the archaic traditions in popular consciousness, and its own ecclesiastical contribution lay in slowly giving that idea a formal and rigid shape, and in declaring it indissoluble. As among savages, it was in the act of consent that the essence of the sacrament lay; the intervention of the priest was not, in principle, necessary to give marriage its religiously binding character. The essence of the sacrament was mutual acceptance of each other by the man and the woman, as husband and wife, and technically the priest who presided at the ceremony was simply a witness of the sacrament. The essential fact being thus the mental act of consent, the sacrament of matrimony had the peculiar character of being without any outward and visible sign. Perhaps itwas this fact, instinctively felt as a weakness, which led to the immense emphasis on the indissolubility of the sacrament of matrimony, already established by St. Augustine. The Canonists brought forward various arguments to account for that indissolubility, and a frequent argument has always been the Scriptural application of the term "one flesh" to married couples; but the favorite argument of the Canonists was that matrimony represents the union of Christ with the Church; that is indissoluble, and therefore its image must be indissoluble (Esmein,op. cit., vol. i, p. 64). In part, also, one may well believe, the idea of the indissolubility of marriage suggested itself to the ecclesiastical mind by a natural association of ideas: the vow of virginity in monasticism was indissoluble; ought not the vow of sexual relationship in matrimony to be similarly indissoluble? It appears that it was not until 1164, in Peter Lombard'sSentences, that clear and formal recognition is found of matrimony as one of the seven sacraments (Howard,op. cit., vol. i, p. 333).

The Catholic conception of marriage was, it is clear, in essentials precisely the primitive conception. Christianity drew the sacramental idea from the archaic traditions in popular consciousness, and its own ecclesiastical contribution lay in slowly giving that idea a formal and rigid shape, and in declaring it indissoluble. As among savages, it was in the act of consent that the essence of the sacrament lay; the intervention of the priest was not, in principle, necessary to give marriage its religiously binding character. The essence of the sacrament was mutual acceptance of each other by the man and the woman, as husband and wife, and technically the priest who presided at the ceremony was simply a witness of the sacrament. The essential fact being thus the mental act of consent, the sacrament of matrimony had the peculiar character of being without any outward and visible sign. Perhaps itwas this fact, instinctively felt as a weakness, which led to the immense emphasis on the indissolubility of the sacrament of matrimony, already established by St. Augustine. The Canonists brought forward various arguments to account for that indissolubility, and a frequent argument has always been the Scriptural application of the term "one flesh" to married couples; but the favorite argument of the Canonists was that matrimony represents the union of Christ with the Church; that is indissoluble, and therefore its image must be indissoluble (Esmein,op. cit., vol. i, p. 64). In part, also, one may well believe, the idea of the indissolubility of marriage suggested itself to the ecclesiastical mind by a natural association of ideas: the vow of virginity in monasticism was indissoluble; ought not the vow of sexual relationship in matrimony to be similarly indissoluble? It appears that it was not until 1164, in Peter Lombard'sSentences, that clear and formal recognition is found of matrimony as one of the seven sacraments (Howard,op. cit., vol. i, p. 333).

The Church, however, had not only made marriage a religious act; it had also made it a public act. The officiating priest, who had now become the arbiter of marriage, was bound by all the injunctions and prohibitions of the Church, and he could not allow himself to bend to the inclinations and interests of individual couples or their guardians. It was inevitable that in this matter, as in other similar matters, a code of ecclesiastical regulations should be gradually developed for his guidance. This need of the Church, due to its growing control of the world's affairs, was the origin of Canon law. With the development of Canon law the whole field of the regulation of the sexual relationships, and the control of its aberrations, became an exclusively ecclesiastical matter. The secular law could take no more direct cognizance of adultery than of fornication or masturbation; bigamy, incest, and sodomy were not temporal crimes; the Church was supreme in the whole sphere of sex.

It was during the twelfth century that Canon law developed, and Gratian was the master mind who first moulded it. He belonged to the Bolognese school of jurisprudence which had inherited the sane traditions of Roman law. The Canons which Gratian compiled were, however, no more the mere result of legal traditions than they were the outcome of cloistered theological speculation. They were the result of a response to thepractical needs of the day before those needs had had time to form a foundation for fine-spun subtleties. At a somewhat later period, before the close of the century, the Italian jurists were vanquished by the Gallic theologians of Paris as represented by Peter Lombard. The result was the introduction of mischievous complexities which went far to rob Canon law alike of its certainty and its adaptation to human necessities.

Notwithstanding, however, all the parasitic accretions which swiftly began to form around the Canon law and to entangle its practical activity, that legislation embodied—predominantly at the outset and more obscurely throughout its whole period of vital activity—a sound core of real value. The Canon law recognized at the outset that the essential fact of marriage is the actual sexual union, accomplished with the intention of inaugurating a permanent relationship. Thecopula carnalis, the making of two "one flesh," according to the Scriptural phrase, a mystic symbol of the union of the Church to Christ, was the essence of marriage, and the mutual consent of the couple alone sufficed to constitute marriage, even without any religious benediction, or without any ceremony at all. The formless and unblessed union was still a real and binding marriage if the two parties had willed it so to be.[328]

Whatever hard things may be said about the Canon law, it must never be forgotten that it carried through the Middle Ages until the middle of the sixteenth century the great truth that the essence of marriage lies not in rites and forms, but in the mutual consent of the two persons who marry each other. When the Catholic Church, in its growing rigidity, lost that conception, it was taken up by the Protestants and Puritans in their first stage of ardent vital activity, though it was more or less dropped as they fell back into a state of subservience to forms. It continued to be maintained by moralists and poets. Thus George Chapman, the dramatist, who was both moralist and poet, inThe Gentleman Usher(1606), represents the riteless marriage of his hero and heroine, which the latter thus introduces:—

"May not we nowOur contract make and marry before Heaven?Are not the laws of God and Nature moreThan formal laws of men? Are outward ritesMore virtuous than the very substance isOf holy nuptials solemnized within?.... The eternal acts of our pure soulsKnit us with God, the soul of all the world,He shall be priest to us; and with such ritesAs we can here devise we will expressAnd strongly ratify our hearts' true vows,Which no external violence shall dissolve."

And to-day, Ellen Key, the distinguished prophet of marriage reform, declares at the end of herLiebe und Ehethat the true marriage law contains only the paragraph: "They who love each other are husband and wife."

The establishment of marriage on this sound and naturalistic basis had the further excellent result that it placed the man and the woman, who could thus constitute marriage by their consent in entire disregard of the wishes of their parents or families, on the same moral level. Here the Church was following alike the later Romans and the early Christians like Lactantius and Jerome who had declared that what was licit for a man was licit for a woman. The Penitentials also attempted to set up this same moral law for both sexes. The Canonists finally allowed a certain supremacy to the husband, though, on the other hand, they sometimes seemed to assign even the chief part in marriage to the wife, and the attempt was made to derive the wordmatrimoniumfrommatris munium, thereby declaring the maternal function to be the essential fact of marriage.[329]

The sound elements in the Canon law conception of marriage were, however, from a very early period largely if not altogether neutralized by the verbal subtleties by which they were overlaid, and even by its own fundamental original defects. Even in the thirteenth century it began to be possible to attach a superior force to marriage verbally formedper verba de præsentithan toone constituted by sexual union, while so many impediments to marriage were set up that it became difficult to know what marriages were valid, an important point since a marriage even innocently contracted within the prohibited degrees was only a putative marriage. The most serious and the most profoundly unnatural feature of this ecclesiastical conception of marriage was the flagrant contradiction between the extreme facility with which the gate of marriage was flung open to the young couple, even if they were little more than children, and the extreme rigor with which it was locked and bolted when they were inside. That is still the defect of the marriage system we have inherited from the Church, but in the hands of the Canonists it was emphasized both on the side of its facility for entrance and of its difficulty for exit.[330]Alike from the standpoint of reason and of humanity the gate that is easy of ingress must be easy of egress; or if the exit is necessarily difficult then extreme care must be taken in admission. But neither of these necessary precautions was possible to the Canonists. Matrimony was a sacrament and all must be welcome to a sacrament, the more so since otherwise they may be thrust into the mortal sin of fornication. On the other side, since matrimony was a sacrament, when once truly formed, beyond the permissible power of verbal quibbles to invalidate, it could never be abrogated. The very institution that, in the view of the Church, had been set up as a bulwark against license became itself an instrument for artificially creating license. So that the net result of the Canon law in the long run was the production of a state of things which—in theeyes of a large part of Christendom—more than neutralized the soundness of its original conception.[331]

In England, where from the ninth century, marriage was generally accepted by the ecclesiastical and temporal powers as indissoluble, Canon law was, in the main, established as in the rest of Christendom. There were, however, certain points in which Canon law was not accepted by the law of England. By English law a ceremony before a priest was necessary to the validity of a marriage, though in Scotland the Canon law doctrine was accepted that simple consent of the parties, even exchanged secretly, sufficed to constitute marriage. Again, the issue of a void marriage contracted in innocence, and the issue of persons who subsequently marry each other, are legitimate by Canon law, but not by the common law of England (Geary,Marriage and Family Relations, p. 3; Pollock and Maitland,loc. cit.). The Canonists regarded the disabilities attaching to bastardy as a punishment inflicted on the offending parents, and considered, therefore, that no burden should fall on the children when there had been a ceremony in good faith on the part of one at least of the parents. In this respect the English law is less reasonable and humane. It was at the Council of Merton, in 1236, that the barons of England rejected the proposal to make the laws of England harmonize with the Canon law, that is, with the ecclesiastical law of Christendom generally, in allowing children born before wedlock to be legitimated by subsequent marriage. Grosseteste poured forth his eloquence and his arguments in favor of the change, but in vain, and the law of England has ever since stood alone in this respect (Freeman, "Merton Priory,"English Towns and Districts). The proposal was rejected in the famous formula, "Nolumus leges Angliæ mutare," a formula which merely stood for an unreasonable and inhumane obstinacy.In the United States, while by common law subsequent marriage fails to legitimate children born before marriage, in many of the States the subsequent marriage of the parents effects by statute the legitimacy of the child, sometimes (as in Maine) automatically, more usually (as in Massachusetts) through special acknowledgment by the father.

In the United States, while by common law subsequent marriage fails to legitimate children born before marriage, in many of the States the subsequent marriage of the parents effects by statute the legitimacy of the child, sometimes (as in Maine) automatically, more usually (as in Massachusetts) through special acknowledgment by the father.

The appearance of Luther and the Reformation involved the decay of the Canon law system so far as Europe as a whole was concerned. It was for many reasons impossible for theProtestant reformers to retain formally either the Catholic conception of matrimony or the precariously elaborate legal structure which the Church had built up on that conception. It can scarcely be said, indeed, that the Protestant attitude towards the Catholic idea of matrimony was altogether a clear, logical, or consistent attitude. It was a revolt, an emotional impulse, rather than a matter of reasoned principle. In its inevitable necessity, under the circumstances of the rise of Protestantism, lies its justification, and, on the whole, its wholesome soundness. It took the form, which may seem strange in a religious movement, of proclaiming that marriage is not a religious but a secular matter. Marriage is, said Luther, "a worldly thing," and Calvin put it on the same level as house-building, farming, or shoe-making. But while this secularization of marriage represents the general and final drift of Protestantism, the leaders of Protestantism were themselves not altogether confident and clear-sighted in the matter. Even Luther was a little confused on this point; sometimes he seems to call marriage "a sacrament," sometimes "a temporal business," to be left to the state.[332]It was the latter view which tended to prevail. But at first there was a period of confusion, if not of chaos, in the minds of the Reformers; not only were they not always convinced in their own minds; they were at variance with each other, especially on the very practical question of divorce. Luther on the whole belonged to the more rigid party, including Calvin and Beza, which would grant divorce only for adultery and malicious desertion; some, including many of the early English Protestants, were in favor of allowing the husband to divorce for adultery but not the wife. Another party, including Zwingli, were influenced by Erasmus in a more liberal direction, and—moving towards the standpoint of Roman Imperial legislation—admitted various causes of divorce. Some, like Bucer, anticipating Milton, would even allow divorce when the husband was unable to love his wife.At the beginning some of the Reformers adopted the principle of self-divorce, as it prevailed among the Jews and was accepted by some early Church Councils. In this way Luther held that the cause for the divorce itself effected the divorce without any judicial decree, though a magisterial permission was needed for remarriage. This question of remarriage, and the treatment of the adulterer, were also matters of dispute. The remarriage of the innocent party was generally accepted; in England it began in the middle of the sixteenth century, was pronounced valid by the Archbishop of Canterbury, and confirmed by Parliament. Many Reformers were opposed, however, to the remarriage of the adulterous party. Beust, Beza, and Melancthon would have him hanged and so settle the question of remarriage; Luther and Calvin would like to kill him, but since the civil rulers were slack in adopting that measure they allowed him to remarry, if possible in some other part of the country.[333]

The final outcome was that Protestantism framed a conception of marriage mainly on the legal and economic factor—a factor not ignored but strictly subordinated by the Canonists—and regarded it as essentially a contract. In so doing they were on the negative side effecting a real progress, for they broke the power of an antiquated and artificial system, but on the positive side they were merely returning to a conception which prevails in barbarous societies, and is most pronounced when marriage is most assimilable to purchase. The steps taken by Protestantism involved a considerable change in the nature of marriage, but not necessarily any great changes in its form. Marriage was no longer a sacrament, but it was still a public and not a private function and was still, however inconsistently, solemnized in Church. And as Protestantism had no rival code to set up, both in Germany and England it fell back on the general principles of Canon law, modifying them to suit its own special attitude and needs.[334]It was the later Puritanic movement, first in theNetherlands (1580), then in England (1653), and afterwards in New England, which introduced a serious and coherent conception of Protestant marriage, and began to establish it on a civil base.

The English Reformers under Edward VI and his enlightened advisers, including Archbishop Cranmer, took liberal views of marriage, and were prepared to carry through many admirable reforms. The early death of that King exerted a profound influence on the legal history of English marriage. The Catholic reaction under Queen Mary killed off the more radical Reformers, while the subsequent accession of Queen Elizabeth, whose attitude towards marriage was grudging, illiberal, and old-fashioned, approximating to that of her father, Henry VIII (as witnessed, for instance, in her decided opposition to the marriage of the clergy), permanently affected English marriage law. It became less liberal than that of other Protestant countries, and closer to that of Catholic countries.The reform of marriage attempted by the Puritans began in England in 1644, when an Act was passed asserting "marriage to be no sacrament, nor peculiar to the Church of God, but common to mankind and of public interest to every Commonwealth." The Act added, notwithstanding, that it was expedient marriage should be solemnized by "a lawful minister of the Word." The more radical Act of 1653 swept away this provision, and made marriage purely secular. The banns were to be published (by registrars specially appointed) in the Church, or (if the parties desired) the market-place. The marriage was to be performed by a Justice of the Peace; the age of consent to marriage for a man was made sixteen, for a woman fourteen (Scobell'sActs and Ordinances, pp. 86, 236). The Restoration abolished this sensible Act, and reintroduced Canon-law traditions, but the Puritan conception of marriage was carried over to America, where it took root and flourished.

The reform of marriage attempted by the Puritans began in England in 1644, when an Act was passed asserting "marriage to be no sacrament, nor peculiar to the Church of God, but common to mankind and of public interest to every Commonwealth." The Act added, notwithstanding, that it was expedient marriage should be solemnized by "a lawful minister of the Word." The more radical Act of 1653 swept away this provision, and made marriage purely secular. The banns were to be published (by registrars specially appointed) in the Church, or (if the parties desired) the market-place. The marriage was to be performed by a Justice of the Peace; the age of consent to marriage for a man was made sixteen, for a woman fourteen (Scobell'sActs and Ordinances, pp. 86, 236). The Restoration abolished this sensible Act, and reintroduced Canon-law traditions, but the Puritan conception of marriage was carried over to America, where it took root and flourished.

It was out of Puritanism, moreover, as represented by Milton, that the first genuinely modern though as yet still imperfect conception of the marriage relationship was destined to emerge. The early Reformers in this matter acted mainly from an obscure instinct of natural revolt in an environment of plebeian materialism. The Puritans were moved by their feeling for simplicity and civil order as the conditions for religious freedom. Milton, in hisDoctrine and Discipline of Divorce, published in 1643, when he was thirty-five years of age, proclaimed the supremacy of the substance of marriage over the form of it,and the spiritual autonomy of the individual in the regulation of that form. He had grasped the meaning of that conception of personal responsibility which is the foundation of sexual relationships as they are beginning to appear to men to-day. If Milton had left behind him only his writings on marriage and divorce they would have sufficed to stamp him with the seal of genius. Christendom had to wait a century and a half before another man of genius of the first rank, Wilhelm von Humboldt, spoke out with equal authority and clearness in favor of free marriage and free divorce.

It is to the honor of Milton, and one of his chief claims on our gratitude, that he is the first great protagonist in Christendom of the doctrine that marriage is a private matter, and that, therefore, it should be freely dissoluble by mutual consent, or even at the desire of one of the parties. We owe to him, says Howard, "the boldest defence of the liberty of divorce which had yet appeared. If taken in the abstract, and applied to both sexes alike, it is perhaps the strongest defence which can be made through an appeal to mere authority;" though his arguments, being based on reason and experience, are often ill sustained by his authority; he is really speaking the language of the modern social reformer, and Milton's writings on this subject are now sometimes ranked in importance above all his other work (Masson,Life of Milton, vol. iii; Howard,op. cit., vol. ii, p. 86, vol. iii, p. 251; C. B. Wheeler, "Milton's Doctrine and Discipline of Divorce,"Nineteenth Century, Jan., 1907).Marriage, said Milton, "is not a mere carnal coition, but a human society; where that cannot be had there can be no true marriage" (Doctrine of Divorce, Bk. i, Ch. XIII); it is "a covenant, the very being whereof consists not in a forced cohabitation, and counterfeit performance of duties, but in unfeigned love and peace" (Ib., Ch. VI). Any marriage that is less than this is "an idol, nothing in the world." The weak point in Milton's presentation of the matter is that he never explicitly accords to the wife the same power of initiative in marriage and divorce as to the husband. There is, however, nothing in his argument to prevent its equal application to the wife, an application which, while never asserting he never denies; and it has been pointed out that he assumes that women are the equals of men and demands from them intellectual and spiritual companionship; however ready Milton may have been to grant complete equality of divorce to the wife, it would have been impossible for a seventeenth century Puritan to have obtained any hearing for such a doctrine; his arguments would have been received with, if that were possible, even more neglect than they actually met.(Milton's scornful sonnet concerning the reception of his book is well known.)Milton insists that in the conventional Christian marriage exclusive importance is attached to carnal connection. So long as that connection is possible, no matter what antipathy may exist between the couple, no matter how mistaken they may have been "through any error, concealment, or misadventure," no matter if it is impossible for them to "live in any union or contentment all their days," yet the marriage still holds good, the two must "fadge together" (op. cit., Bk. i). It is the Canon law, he says, which is at fault, "doubtless by the policy of the devil," for the Canon law leads to licentiousness (op. cit.). It is, he argues, the absence of reasonable liberty which causes license, and it is the men who desire to retain the privileges of license who oppose the introduction of reasonable liberty.The just ground for divorce is "indisposition, unfitness, or contrariety of mind, arising from a cause in nature unchangeable, hindering, and ever likely to hinder, the main benefits of conjugal society, which are solace and peace." Without the "deep and serious verity" of mutual love, wedlock is "nothing but the empty husks of a mere outside matrimony," a mere hypocrisy, and must be dissolved (op. cit.).Milton goes beyond the usual Puritan standpoint, and not only rejects courts and magistrates, but approves of self-divorce; for divorce cannot rightly belong to any civil or earthly power, since "ofttimes the causes of seeking divorce reside so deeply in the radical and innocent affections of nature, as is not within the diocese of law to tamper with." He adds that, for the prevention of injustice, special points may be referred to the magistrate, who should not, however, in any case, be able to forbid divorce (op. cit., Bk. ii, Ch. XXI). Speaking from a standpoint which we have not even yet attained, he protests against the absurdity of "authorizing a judicial court to toss about and divulge the unaccountable and secret reason of disaffection between man and wife."In modern times Hinton was accustomed to compare the marriage law to the law of the Sabbath as broken by Jesus. We find exactly the same comparison in Milton. The Sabbath, he believes, was made for God. "Yet when the good of man comes into the scales, we have that voice of infinite goodness and benignity, that 'Sabbath was made for man and not man for Sabbath.' What thing ever was made more for man alone, and less for God, than marriage?" (op. cit., Bk. i, Ch. XI). "If man be lord of the Sabbath, can he be less than lord of marriage?"

Marriage, said Milton, "is not a mere carnal coition, but a human society; where that cannot be had there can be no true marriage" (Doctrine of Divorce, Bk. i, Ch. XIII); it is "a covenant, the very being whereof consists not in a forced cohabitation, and counterfeit performance of duties, but in unfeigned love and peace" (Ib., Ch. VI). Any marriage that is less than this is "an idol, nothing in the world." The weak point in Milton's presentation of the matter is that he never explicitly accords to the wife the same power of initiative in marriage and divorce as to the husband. There is, however, nothing in his argument to prevent its equal application to the wife, an application which, while never asserting he never denies; and it has been pointed out that he assumes that women are the equals of men and demands from them intellectual and spiritual companionship; however ready Milton may have been to grant complete equality of divorce to the wife, it would have been impossible for a seventeenth century Puritan to have obtained any hearing for such a doctrine; his arguments would have been received with, if that were possible, even more neglect than they actually met.(Milton's scornful sonnet concerning the reception of his book is well known.)

Milton insists that in the conventional Christian marriage exclusive importance is attached to carnal connection. So long as that connection is possible, no matter what antipathy may exist between the couple, no matter how mistaken they may have been "through any error, concealment, or misadventure," no matter if it is impossible for them to "live in any union or contentment all their days," yet the marriage still holds good, the two must "fadge together" (op. cit., Bk. i). It is the Canon law, he says, which is at fault, "doubtless by the policy of the devil," for the Canon law leads to licentiousness (op. cit.). It is, he argues, the absence of reasonable liberty which causes license, and it is the men who desire to retain the privileges of license who oppose the introduction of reasonable liberty.

The just ground for divorce is "indisposition, unfitness, or contrariety of mind, arising from a cause in nature unchangeable, hindering, and ever likely to hinder, the main benefits of conjugal society, which are solace and peace." Without the "deep and serious verity" of mutual love, wedlock is "nothing but the empty husks of a mere outside matrimony," a mere hypocrisy, and must be dissolved (op. cit.).

Milton goes beyond the usual Puritan standpoint, and not only rejects courts and magistrates, but approves of self-divorce; for divorce cannot rightly belong to any civil or earthly power, since "ofttimes the causes of seeking divorce reside so deeply in the radical and innocent affections of nature, as is not within the diocese of law to tamper with." He adds that, for the prevention of injustice, special points may be referred to the magistrate, who should not, however, in any case, be able to forbid divorce (op. cit., Bk. ii, Ch. XXI). Speaking from a standpoint which we have not even yet attained, he protests against the absurdity of "authorizing a judicial court to toss about and divulge the unaccountable and secret reason of disaffection between man and wife."

In modern times Hinton was accustomed to compare the marriage law to the law of the Sabbath as broken by Jesus. We find exactly the same comparison in Milton. The Sabbath, he believes, was made for God. "Yet when the good of man comes into the scales, we have that voice of infinite goodness and benignity, that 'Sabbath was made for man and not man for Sabbath.' What thing ever was made more for man alone, and less for God, than marriage?" (op. cit., Bk. i, Ch. XI). "If man be lord of the Sabbath, can he be less than lord of marriage?"

Milton, in this matter as in others, stood outside the currents of his age. His conception of marriage made no more impression on contemporary life than hisParadise Lost. Even hisown Puritan party who had passed the Act of 1653 had strangely failed to transfer divorce and nullity cases to the temporal courts, which would at least have been a step on the right road. The Puritan influence was transferred to America and constituted the leaven which still works in producing the liberal though too minutely detailed divorce laws of many States. The American secular marriage procedure followed that set up by the English Commonwealth, and the dictum of the great Quaker, George Fox, "We marry none, but are witnesses of it,"[335](which was really the sound kernel in the Canon law) is regarded as the spirit of the marriage law of the conservative but liberal State of Pennsylvania, where, as recently as 1885, a statute was passed expressly authorizing a man and woman to solemnize their own marriage.[336]

In England itself the reforms in marriage law effected by the Puritans were at the Restoration largely submerged. For two and a half centuries longer the English spiritual courts administered what was substantially the old Canon law. Divorce had, indeed, become more difficult than before the Reformation, and the married woman's lot was in consequence harder. From the sixteenth century to the second half of the nineteenth, English marriage law was peculiarly harsh and rigid, much less liberal than that of any other Protestant country. Divorce was unknown to the ordinary English law, and a special act of Parliament, at enormous expense, was necessary to procure it in individual cases.[337]There was even an attitude of self-righteousness in the maintenance of this system. It was regarded as moral. There was complete failure to realize that nothing is more immoral than the existence of unreal sexual unions, notonly from the point of view of theoretical but also of practical morality, for no community could tolerate a majority of such unions.[338]In 1857 an act for reforming the system was at last passed with great difficulty. It was a somewhat incoherent and make-shift measure, and was avowedly put forward only as a step towards further reform; but it still substantially governs English procedure, and in the eyes of many has set a permanent standard of morality. The spirit of blind conservatism,—Nolumus leges Angliæ mutare,—which in this sphere had reasserted itself after the vital movement of Reform and Puritanism, still persists. In questions of marriage and divorce English legislation and English public feeling are behind alike both the Latin land of France and the Puritanically moulded land of the United States.

The author of an able and temperate essay onThe Question of English Divorce, summing up the characteristics of the English divorce law, concludes that it is: (1) unequal, (2) immoral, (3) contradictory, (4) illogical, (5) uncertain, and (6) unsuited to present requirements. It was only grudgingly introduced in a bill, presented to Parliament in 1857, which was stubbornly resisted during a whole session, not only on religious grounds by the opponents of divorce, but also by the friends of divorce, who desired a more liberal measure. It dealt with the sexes unequally, granting the husband but not the wife divorce for adultery alone. In introducing the bill the Attorney-General apologized for this defect, stating that the measure was not intended to be final, but merely as a step towards further legislation. That was more than half a century ago, but the further step has not yet been taken. Incomplete and unsatisfactory as the measure was, it seems to have been regarded by many as revolutionary and dangerous in the highest degree. The author of an article on "Modern Divorce" in theUniversal Reviewfor July, 1859, while approving in principle of the establishment of a special Divorce Court, yet declared that the new court was "tending to destroy marriage as a social institution and to sap female chastity," and that "everyone now is a husband and wife at will." "No one," he adds, "can now justly quibble at a deficiency of matrimonial vomitories."Yet, according to this law, it is not even possible for a wife to obtain a divorce for her husband's adultery, unless he is also cruel or deserts her. At first "cruelty" meant physical cruelty and of a serious kind. But in course of time the meaning of the word was extended to pain inflicted on the mind, and now coldness and neglect may almost of themselves constitute cruelty, though the English court has sometimes had the greatest hesitation in accepting the most atrocious forms of refined cruelty, because it involved no "physical" element. "The time may very reasonably be looked forward to, however," a legal writer has stated (Montmorency, "The Changing Status of a Married Woman,"Law Quarterly Review, April, 1897), "when almost any act of misconduct will, in itself, be considered to convey such mental agony to the innocent party as to constitute the cruelty requisite under the Act of 1857." (The question of cruelty is fully discussed in J. R. Bishop'sCommentaries on Marriage, Divorce and Separation, 1891, vol. i, Ch. XLIX;cf.Howard,op. cit., vol. ii, p. 111).There can be little doubt, however, that cruelty alone is a reasonable cause for divorce. In many American States, where the facilities for divorce are much greater than in England, cruelty is recognized as itself sufficient cause, whether the wife or the husband is the complainant. The acts of cruelty alleged have sometimes been seemingly very trivial. Thus divorces have been pronounced in America on the ground of the "cruel and inhuman conduct" of a wife who failed to sew her husband's buttons on, or because a wife "struck plaintiff a violent blow with her bustle," or because a husband does not cut his toe-nails, or because "during our whole married life my husband has never offered to take me out riding. This has been a source of great mental suffering and injury." In many other cases, it must be added, the cruelty inflicted by the husband, even by the wife—for though usually, it is not always, the husband who is the brute—is of an atrocious and heart-rending character (Report on Marriage and Divorce in the United States, issued by Hon. Carroll D. Wright, Commissioner of Labor, 1889). But even in many of the apparently trivial cases—as of a husband who will not wash, and a wife who is constantly evincing a hasty temper—it must be admitted that circumstances which, in the more ordinary relationships of life may be tolerated, become intolerable in the intimate relationship of sexual union. As a matter of fact, it has been found by careful investigation that the American courts weigh well the cases that come before them, and are not careless in the granting of decrees of divorce.In 1859 an exaggerated importance was attached to the gross reasons for divorce, to the neglect of subtle but equally fatal impediments to the continuance of marriage. This was pointed out by Gladstone, who was opposed to making adultery a cause of divorce at all. "We have many causes," he said, "more fatal to the great obligation of marriage,as disease, idiocy, crime involving punishment for life." Nowadays we are beginning to recognize not only such causes as these, but others of a far more intimate character which, as Milton long ago realized, cannot be embodied in statutes, or pleaded in law courts. The matrimonial bond is not merely a physical union, and we have to learn that, as the author ofThe Question of English Divorce(p. 49) remarks, "other than physical divergencies are, in fact, by far the most important of the originating causes of matrimonial disaster."In England and Wales more husbands than wives petition for divorce, the wives who petition being about 40 per cent, of the whole. Divorces are increasing, though the number is not large, in 1907 about 1,300, of whom less than half remarried. The inadequacy of the divorce law is shown by the fact that during the same year about 7,000 orders for judicial separation were issued by magistrates. These separation orders not only do not give the right to remarry, but they make it impossible to obtain divorce. They are, in effect, an official permission to form relationships outside State marriage.In the United States during the years 1887-1906 nearly 40 per cent, of the divorces granted were for "desertion," which is variously interpreted in different States, and must often mean a separation by mutual consent. Of the remainder, 19 per cent, were for unfaithfulness, and the same proportion for cruelty; but while the divorces granted to husbands for the infidelity of their wives are nearly three times as great proportionately as those granted to wives for their husband's adultery, with regard to cruelty it is the reverse, wives obtaining 27 per cent, of their divorces on that ground and husbands only 10 per cent.In Prussia divorce is increasing. In 1907 there were eight thousand divorces, the cause in half the cases being adultery, and in about a thousand cases malicious desertion. In cases of desertion the husbands were the guilty parties nearly twice as often as the wives, in cases of adultery only a fifth to an eighth part.

Yet, according to this law, it is not even possible for a wife to obtain a divorce for her husband's adultery, unless he is also cruel or deserts her. At first "cruelty" meant physical cruelty and of a serious kind. But in course of time the meaning of the word was extended to pain inflicted on the mind, and now coldness and neglect may almost of themselves constitute cruelty, though the English court has sometimes had the greatest hesitation in accepting the most atrocious forms of refined cruelty, because it involved no "physical" element. "The time may very reasonably be looked forward to, however," a legal writer has stated (Montmorency, "The Changing Status of a Married Woman,"Law Quarterly Review, April, 1897), "when almost any act of misconduct will, in itself, be considered to convey such mental agony to the innocent party as to constitute the cruelty requisite under the Act of 1857." (The question of cruelty is fully discussed in J. R. Bishop'sCommentaries on Marriage, Divorce and Separation, 1891, vol. i, Ch. XLIX;cf.Howard,op. cit., vol. ii, p. 111).

There can be little doubt, however, that cruelty alone is a reasonable cause for divorce. In many American States, where the facilities for divorce are much greater than in England, cruelty is recognized as itself sufficient cause, whether the wife or the husband is the complainant. The acts of cruelty alleged have sometimes been seemingly very trivial. Thus divorces have been pronounced in America on the ground of the "cruel and inhuman conduct" of a wife who failed to sew her husband's buttons on, or because a wife "struck plaintiff a violent blow with her bustle," or because a husband does not cut his toe-nails, or because "during our whole married life my husband has never offered to take me out riding. This has been a source of great mental suffering and injury." In many other cases, it must be added, the cruelty inflicted by the husband, even by the wife—for though usually, it is not always, the husband who is the brute—is of an atrocious and heart-rending character (Report on Marriage and Divorce in the United States, issued by Hon. Carroll D. Wright, Commissioner of Labor, 1889). But even in many of the apparently trivial cases—as of a husband who will not wash, and a wife who is constantly evincing a hasty temper—it must be admitted that circumstances which, in the more ordinary relationships of life may be tolerated, become intolerable in the intimate relationship of sexual union. As a matter of fact, it has been found by careful investigation that the American courts weigh well the cases that come before them, and are not careless in the granting of decrees of divorce.

In 1859 an exaggerated importance was attached to the gross reasons for divorce, to the neglect of subtle but equally fatal impediments to the continuance of marriage. This was pointed out by Gladstone, who was opposed to making adultery a cause of divorce at all. "We have many causes," he said, "more fatal to the great obligation of marriage,as disease, idiocy, crime involving punishment for life." Nowadays we are beginning to recognize not only such causes as these, but others of a far more intimate character which, as Milton long ago realized, cannot be embodied in statutes, or pleaded in law courts. The matrimonial bond is not merely a physical union, and we have to learn that, as the author ofThe Question of English Divorce(p. 49) remarks, "other than physical divergencies are, in fact, by far the most important of the originating causes of matrimonial disaster."

In England and Wales more husbands than wives petition for divorce, the wives who petition being about 40 per cent, of the whole. Divorces are increasing, though the number is not large, in 1907 about 1,300, of whom less than half remarried. The inadequacy of the divorce law is shown by the fact that during the same year about 7,000 orders for judicial separation were issued by magistrates. These separation orders not only do not give the right to remarry, but they make it impossible to obtain divorce. They are, in effect, an official permission to form relationships outside State marriage.

In the United States during the years 1887-1906 nearly 40 per cent, of the divorces granted were for "desertion," which is variously interpreted in different States, and must often mean a separation by mutual consent. Of the remainder, 19 per cent, were for unfaithfulness, and the same proportion for cruelty; but while the divorces granted to husbands for the infidelity of their wives are nearly three times as great proportionately as those granted to wives for their husband's adultery, with regard to cruelty it is the reverse, wives obtaining 27 per cent, of their divorces on that ground and husbands only 10 per cent.

In Prussia divorce is increasing. In 1907 there were eight thousand divorces, the cause in half the cases being adultery, and in about a thousand cases malicious desertion. In cases of desertion the husbands were the guilty parties nearly twice as often as the wives, in cases of adultery only a fifth to an eighth part.

There cannot be the slightest doubt that the difficulty, the confusion, the inconsistency, and the flagrant indecency which surround divorce and the methods of securing it are due solely and entirely to the subtle persistence of traditions based, on the one hand, on the Canon law doctrines of the indissolubility of marriage and the sin of sexual intercourse outside marriage, and, on the other hand, on the primitive idea of marriage as a contract which economically subordinates the wife to the husband and renders her person, or at all events her guardianship, his property. It is only when we realize how deeply these traditions havebecome embedded in the religious, legal, social and sentimental life of Europe that we can understand how it is that barbaric notions of marriage and divorce can to-day subsist in a stage of civilization which has, in many respects, advanced beyond such notions.

The Canon law conception of the abstract religious sanctity of matrimony, when transferred to the moral sphere, makes a breach of the marriage relationship seem a public wrong; the conception of the contractive subordination of the wife makes such a breach on her part, and even, by transference of ideas, on his part, seem a private wrong. These two ideas of wrong incoherently flourish side by side in the vulgar mind, even to-day.

The economic subordination of the wife as a species of property significantly comes into view when we find that a husband can claim, and often secure, large sums of money from the man who sexually approaches his property, by such trespass damaging it in its master's eyes.[339]To a psychologist it would be obvious that a husband who has lacked the skill so to gain and to hold his wife's love and respect that it is not perfectly easy and natural to her to reject the advances of any other man owes at least as much damages to her as she or her partner owes to him; while if the failure is really on her side, if she is so incapable of responding to love and trust and so easy a prey to an outsider, then surely the husband, far from wishing for any money compensation, should consider himself more than fully compensated by being delivered from the necessity of supporting such a woman. In the absence of any false traditions that would be obvious. It might not, indeed, be unreasonable that a husband should pay heavily in order to free himself from a wife whom, evidently, he has made a serious mistake in choosing. But to ordain that a man should actually be indemnified because he hasshown himself incapable of winning a woman's love is an idea that could not occur in a civilized society that was not twisted by inherited prejudice.[340]Yet as matters are to-day there are civilized countries in which it is legally possible for a husband to enter a prayer for damages against his wife's paramour in combination with either a petition for judicial separation or for dissolution of wedlock. In this way adultery is not a crime but a private injury.[341]

At the same time, however, the influence of Canon law comes inconsistently to the surface and asserts that a breach of matrimony is a public wrong, a sin transformed by the State into something almost or quite like a crime. This is clearly indicated by the fact that in some countries the adulterer is liable to imprisonment, a liability scarcely nowadays carried into practice. But exactly the same idea is beautifully illustrated by the doctrine of "collusion," which, in theory, is still strictly observed in many countries. According to the doctrine of "collusion" the conditions necessary to make the divorce possible must on no account be secured by mutual agreement. In practice it is impossible to prevent more or less collusion, but if proved in court it constitutes an absolute impediment to the granting of a divorce, however just and imperative the demand for divorce may be.

The English Divorce Act of 1857 refused divorce when there was collusion, as well as when there was any countercharge against the petitioner, and the Matrimonial Causes Act of 1860 provided the machinery for guaranteeing these bars to divorce. This question of collusion isdiscussed by G. P. Bishop (op. cit., vol. ii, Ch. IX). "However just a cause may be," Bishop remarks, "if parties collude in its management, so that in real fact both parties are plaintiffs, while by the record the one appears as plaintiff and the other as defendant, it cannot go forward. All conduct of this sort, disturbing to the course of justice, falls within the general idea of fraud on the court. Such is the doctrine in principle everywhere."

It is quite evident that from the social or the moral point of view, it is best that when a husband and wife can no longer live together, they should part amicably, and in harmonious agreement effect all the arrangements rendered necessary by their separation. The law ridiculously forbids them to do so, and declares that they must not part at all unless they are willing to part as enemies. In order to reach a still lower depth of absurdity and immorality the law goes on to say that if as a matter of fact they have succeeded in becoming enemies to each other to such an extent that each has wrongs to plead against the other party they cannot be divorced at all![342]That is to say that when a married couple have reached a degree of separation which makes it imperatively necessary, not merely in their own interests but in the moral interests of society, that they should be separated and their relations to other parties concerned regularized, then they must on no account be separated.

It is clear how these provisions of the law are totally opposed to the demands of reason and morality. Yet at the same time it is equally clear how no efforts of the lawyers, however skilful or humane those efforts may be, can bring the present law into harmony with the demands of modern civilization. It is notthe lawyers who are at fault; they have done their best, and, in England, it is entirely owing to the skilful and cautious way in which the judges have so far as possible pressed the law into harmony with modern needs, that our antiquated divorce laws have survived at all. It is the system which is wrong. That system is the illegitimate outgrowth of the Canon law which grew up around conceptions long since dead. It involves the placing of the person who imperils the theoretical indissolubility of the matrimonial bond in the position of a criminal, now that he can no longer be publicly condemned as a sinner. To aid and abet that criminal is itself an offence, and the aider and abettor of the criminal must, therefore, be inconsequently punished by the curious method of refraining from punishing the criminal. We do not openly assert that the defendant in a divorce case is a criminal; that would be to render the absurdity of it too obvious, and, moreover, would be hardly consistent with the permission to claim damages which is based on a different idea. We hover uncertainly between two conceptions of divorce, both of them bad, each inconsistent with the other, and neither of them capable of being pushed to its logical conclusions.

The result is that if a perfectly virtuous married couple comes forward to claim divorce, they are told that it is out of the question, for in such a case there must be a "defendant." They are to be punished for their virtue. If each commits adultery and they again come forward to claim divorce, they are told that it is still out of the question, for there must be a "plaintiff." Before they were punished for their virtue; now they are to be punished in exactly the same way for their lack of it. The couple must humor the law by adopting a course of action which may be utterly repugnant to both. If only the wife alone will commit adultery, if only the husband will commit adultery and also inflict some act of cruelty upon his wife, if the innocent party will descend to the degradation of employing detectives and hunting up witnesses, the law is at their feet and hastens to accord to both parties the permission to remarry. Provided, of course, that the parties have arranged this without "collusion." That is to say that our law, with its ecclesiasticaltraditions behind it, says to the wife: Be a sinner, or to the husband: Be a sinner and a criminal—then we will do all you wish. The law puts a premium on sin and on crime. In order to pile absurdity on absurdity it claims that this is done in the cause of "public morality." To those who accept this point of view it seems that the sweeping away of divorce laws would undermine the bases of morality. Yet there can be little doubt that the sooner such "morality" is undermined, and indeed utterly destroyed, the better it will be for true morality.

There is an influential movement in England for the reform of divorce, on the grounds that the present law is unjust, illogical, and immoral, represented by the Divorce Law Reform Union. Even the former president of the Divorce Court, Lord Gorell, declared from the bench in 1906 that the English law produces deplorable results, and is "full of inconsistencies, anomalies and inequalities, amounting almost to absurdities." The points in the law which have aroused most protest, as being most behind the law of other nations, are the great expense of divorce, the inequality of the sexes, the failure to grant divorces for desertion and in cases of hopeless insanity, and the failure of separation orders to enable the separated parties to marry again. Separation orders are granted by magistrates for cruelty, adultery, and desertion. This "separation" is really the direct descendant of the Canon law divorcea mensa et thoro, and the inability to marry which it involves is merely a survival of the Canon law tradition. At the present time magistrates—exercising their discretion, it is admitted, in a careful and prudent manner—issue some 7,000 separation orders annually, so that every year the population is increased by 14,000 individuals mostly in the age of sexual vigor, and some little more than children, who are forbidden by law to form legal marriages. They contribute powerfully to the great forward movement which, as was shown in the previous chapter, marks the morality of our age. But it is highly undesirable that free marriages should be formed, helplessly, by couples who have no choice in the matter, for it is unlikely that under such circumstances any high level of personal responsibility can be reached. The matter could be easily remedied by dropping altogether a Canon law tradition which no longer has any vitality or meaning, and giving to the magistrate's separation order the force of a decree of divorce.New Zealand and the Australian colonies, led by Victoria in 1889, have passed divorce laws which, while more or less framed on the English model, represent a distinct advance. Thus in New Zealand the grounds for divorce are adultery on either side, wilful desertion, habitual drunkenness, and conviction to imprisonment for a term of years.

New Zealand and the Australian colonies, led by Victoria in 1889, have passed divorce laws which, while more or less framed on the English model, represent a distinct advance. Thus in New Zealand the grounds for divorce are adultery on either side, wilful desertion, habitual drunkenness, and conviction to imprisonment for a term of years.

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