It is an encouraging sign of advancing culture that history is gaining a deeper and broader meaning. We are really becoming interested, not merely in our political, but also in our entire biological, psychological, and social evolution. Although such phrase-making is nearly always misleading, there would perhaps be more truth in saying that “history is past sociology and sociology present history” than in Freeman’s well-known epigram. In particular, the human family, with all that the word connotes, is commanding greater attention. Yet there is urgent need that its rise and social function should have far more earnest study than they now receive. The family and its cognate institutions ought to enter more fully into popular thought; and they should have much larger relative space in the educational program. From the home circle to the university seminar they are worthy to become a vital part of systematic social training. In the hope of aiding somewhat in winning for them due scientific recognition, this book is written. It seems not impossible that a sustained history of the matrimonial institutions of the English race in its “three homes” may prove a positive advantage, especially in gathering the materials and planning the work for more detailed investigations. Moreover, a thorough understanding of the social evolution of any people must rest upon the broader experience of mankind. Accordingly, in Part I the attempt is made to present a comprehensive and systematic analysis of the literature and the theories of primitive matrimonial institutions.

Buy on Amazon or register with Enshumanitas to access this book online

PART II

MATRIMONIAL INSTITUTIONS IN ENGLAND
Continued

[3]


CHAPTER XI
HISTORY OF SEPARATION AND DIVORCE UNDER ENGLISH AND ECCLESIASTICAL LAW

[Bibliographical Note XI.—For divorce among the Athenians Meier and Schömann’s Der attische Process (Berlin, 1883-87) is important. Assistance has also been given by Hruza, Ehebegründung nach att. Rechte (Leipzig, 1892); idemPolygamie und Pellikat (Leipzig, 1894); and Müller and Bauer, “Die griech. Privat- und Kriegsalterthümer” (1893), in Müller’s Handbuch. The Hebrew law on the subject is well treated by Mielziner, The Jewish Law of Marriage and Divorce(Cincinnati, 1884); and especially by Amram, in his excellent Jewish Law of Divorce (Philadelphia, 1896). In his “Divorce on Condition,” in the Green Bag, III, August, 1891, the last-named writer has described a curious device for escaping marriage with a brother-in-law and employed also in cases of long absence. Besides the works of Stubbe, Duschak, Döllinger, and Lichtschein, elsewhere noticed, see Selden, Uxor ebraica (Frankfort, 1673), or the same in his Opera, II (London, 1726); Fraenkel, Grundlinien des mosaisch-talmud. Eherechts (Breslau, 1860); Saalschuetz, Das mosaische Recht (2d ed., Berlin, 1853); and Meyer, Die Rechte der Israeliten, Athener, und Römer (Leipzig, 1862-66).

The leading work on Roman divorce is Wächter’s Ueber die Ehescheidungen (Stuttgart, 1821). There is also a good account in the seventh and eighth chapters of Hasse’s Das Gütterrecht der Ehegatten nach röm. Recht (Berlin, 1824). Savigny has an article on “Die erste Ehescheidung in Rom,” in Abhandlungen der könig. Akad. der Wiss. in Berlin, 1814-16 (Berlin, 1818). Very important also is Rein, Das röm. Privatrecht (Leipzig, 1836); and on divorce in connection with the alleged depravation of morals at the close of the republic there is a fine passage in Lecky, European Morals (3d ed., New York, 1881). The subject is treated by Marche, Historia juris civilis de divortiis (Leipzig, 1764); Langeron, Du divorce en droit romain (Paris, 1857); Morael, Droit romain: du divorce (Paris, 1888); and Combier, Du divorce en droit romain (Paris, 1880). Esmein, Mélanges (Paris, 1886), has a chapter dealing in part with Roman divorce; and in the same volume may be found the best existing treatment of adultery in connection with the Lex Julia de adulteriis. With other matter this law is also considered by Gessert, Ad leg. Jul. de adult. coerc. (Würtemberg,[4] 1795); Haupt, De poena adulterii ex leg. Jul. (Leipzig, 1797); Jörs, Die Ehegesetze des Augustus (Marburg, 1894); and Bennecke in his able monograph Die strafrechtliche Lehre vom Ehebruch (Marburg, 1884), bringing the general history of his subject down to the middle of the fifteenth century. In this connection have likewise been of service Sohm’s Institutes and the works of Fustel de Coulanges, Hölder, Rossbach, Karlowa, Unger, Maine, Marquardt, and Zhishman elsewhere described. The ground of the chapter is mainly covered by Woolsey, Divorce and Divorce Legislation (2d ed., New York, 1882); and Glasson, Le mariage civil et le divorce (2d ed., Paris, 1880); as also by the general works of Popp, Ehescheidung (Amberg and Sulzbach, 1800); Tissot, Le mariage, la séparation et le divorce (Paris, 1868); Thwing, The Family (Boston, 1887); Gide, La femme (2d ed., Paris, 1885); Scheurl, Das gemeine deutsche Eherecht (Erlangen, 1882); and there is a concise historical account by Friedericus, De divortio meditationes (Leipzig, 1842).

For the origin and early development of the Christian doctrine, besides the Scriptures, the principle sources are, of course, the writings of the Fathers and the provisions of the first ecclesiastical councils. The most important monograph is Geffcken’s Zur Geschichte der Ehescheidung vor Gratian (Leipzig, 1894). The subject is treated in Moy, Das Eherecht der Christen (Regensburg, 1833). There is a good account by Loening, Geschichte des deutschen Kirchenrechts(Strassburg, 1878); and another by Meyrick in his article “Marriage,” in the second volume of the Dict. of Christ. Antiquities. The rigid theological point of view is taken by Watkins, Holy Matrimony (London, 1895); and Luckock, History of Marriage (London, 1894). Among similar works, mainly controversial, may be consulted Ap Richard, Marriage and Divorce (London, 1888); Caverno, Treatise on Divorce (Madison, 1889); Hovey, The Scriptural Law of Divorce(Philadelphia, 1866); Greve, Die Ehescheidung nach der Lehre des Neuen Testamentes (Leipzig, 1873); and the anonymous Ueber den einzig wahren Ehescheidungsgrund in der christ. Kirche (Bayreuth, 1838). Standard Catholic treatises are Cigoi, Die Unauflösbarkeit der christ. Ehe (Paderborn, 1895); Didon, Indissolubilité et divorce (4th ed., Paris, 1880); or the German translation of the same by Schneider (Regensburg, 1893); Roskovány, De matrimonio in eccle. cath.(Augustae Vindelicorum, 1837); Scheicher-Binder, Praktisches Handbuch des kath. Eherechts (4th ed., Freiburg, 1891); and especially Perrone, De matrimonio christ. (Leodii, 1861). Pompen has a special Tractatus de dispensationibus et de revalidatione mat. (2d ed., Amsterdam, 1897).

On Germanic law and custom see Tacitus’s Germania; the Monumenta Germaniae Historica; and the collections of Thorpe, Schmid,[5] and Liebermann. Heussler’s Institutionen, Weinhold’s Deutsche Frauen, Grimm’s Rechtsalterthümer, Brunner’s Rechtsgeschichte, and the similar works of Schroeder, Zoepfl, and Walter have all been consulted. The penitentials, containing evidence of compromise between Teutonic usage and the strict dogmas of the church, may be found in Thorpe, Ancient Laws; Haddan and Stubbs, Councils; Wasserschleben, Bussordnungen (Halle, 1851); and Schmitz, Bussbücher (Mayence, 1883). These have largely superseded the older works of Kuntsmann, Die lateinischen Poenitentialbücher der Angelsachsen (Mayence, 1844); and Hildebrand, Untersuchungen über die germ. Poenitentialbücher (Würzburg, 1851). The penitentials are analyzed by Bennecke, Esmein, and Freisen; also by Hinschius, “Das Ehescheidungsrecht nach den angelsäch. und frank. Bussordnungen,” in Zeitschrift für deutsches Recht, XX; and Rosenthal, Die Rechtsfolgen des Ehebruchs nach kan. und deutsch. Recht(Würzburg, 1880). In this connection may also be read Heller, Ueber die Strafe des Ehebruchs (Ulm, 1773); Wächter, Abhandlungen aus dem Strafrechte (Leipzig, 1835), I, dealing with Entführung and Nothzucht; Wilda, Strafrecht (Halle, 1842); and Pollen, Fatal Consequences of Adultery (London, 1772), giving literary and other curiosities of the subject. A useful book is Boehmer’s Ueber die Ehegesetze im Zeitalter Karls des Grossen (Göttingen, 1826), discussing the inconsistency of temporal and ecclesiastical legislation regarding divorce; as is also Sdralek’s Hinkmars Gutachten über die Ehescheidung des Königs Lothar II. (Freiburg, 1881).

Primary sources for the settlement of the canon law on the subject of divorce are the Decretum of Gratian and the other materials comprised in Richter-Friedberg’s Corpus juris canonici. For England Johnson’s Canons and Godolphin’s Repartorium canonicum (3d ed., London, 1687) are serviceable. The state of the law in the age of the decretalists may be learned from Wunderlich’s edition of Tancred’s Summa de matrimonio (Göttingen, 1841); and for its historical development the great works of Esmein and Freisen, elsewhere mentioned, are indispensable. Schulte’s Lehrbuch and the Lehrbuch of Friedberg cover the subject. In connection with the rise of the jurisdiction of the church should be read Sohm, “Die geist. Gerichtsbarkeit im frank. Reich,” in ZKR., IX (Tübingen, 1870). For the matrimonial experiences of Margaret of Scotland, illustrating the facility of divorce by indirect methods under the canon law, see Tait’s article in the Dict. of Nat. Biog., XXXVI; and similar material in the Reports of the Historical Manuscripts Commission. For the literature relating to the Council of Trent consult Bibliographical Note VII.

The foundation of the Protestant doctrine of divorce was laid by Martin Luther. His writings on the subject may, of course, be found[6] in his collected works mentioned in Bibliographical Note IX; or in the source-book of Strampff, Luther: Ueber die Ehe (Berlin, 1857); while the more important papers are reprinted in Vol. II of the Kleinere Schriften Dr. Martin Luthers: von Ehe- und Klostersachen (Bielefeld and Leipzig, 1877). An earlier book of a somewhat similar character is Froböse’s Dr. Martin Luther’s ernste, kräftige Worte über Ehe und eheliche Verhältnisse (Hanover, 1825). In the sixteenth century Luther’s relatively conservative teaching regarding the scriptural grounds of divorce is adopted in the main by the theologians Brenz, Wie yn Ehesachen … zu Handeln (1530); Bugenhagen, Von Ehebruch und Weglaufen (1539); also in the collections of Sarcerius, below mentioned; Chemnitz, Examen concilii tridentini (Frankfort, 1615); Beza, Tractatio de repudiis et divortiis (Geneva, 1569); the jurists Kling, Matrimonialium causarum tractatus (1st ed., Frankfort, 1553; 3d ed., here cited, 1577), being a reprint of the title “De nuptiis” of his Enarrationes in Institutiones (1542); Beust, Tractatus de jure connubiorum (3d ed., Leipzig, 1592); idemTractatus de sponsalibus et matrimoniis (Wittenberg, 1586); Schneidewin, Commentarius in Institutiones (1st ed., Wittenberg, 1571); and idemDe nuptiis (Jena, 1585), being a part of the earlier work published by the heirs after the author’s death. In the seventeenth century the more stringent tendency is represented by the theologians Bidembach, De causis matrimonialibus tractatus (Frankfort, 1608); Mentzer, De conjugio tractatus (Wittenberg, 1612); and by the jurists Cypräus, De connubiorum jure(Frankfort, 1605); Nicolai, Tractatus de repudiis et divortiis (Dresden, 1685); and Brouwer, De jure connubiorum (Amsterdam, 1665), whose book has the distinction of being placed on the Index. On the other hand, in the age of Luther a more liberal direction is taken by Erasmus, Annat. in Nov. Testam. (Basel, 1515); whose influence, according to Richter, is felt by Zwingli, “Ordnung wie zu Zürich … über eelich sachen gericht soll werden” (1525): in Richter, Kirchordnungen, I, 21, 22; and his “Commentary on Matthew xix, 9,” in Richter, Beiträge, 7; and by Zwingli’s disciple Bullinger, Der christlich Ehestand (1579). The laxer tendency is also represented by Lambert of Avignon, De sacro conjugio (Strasburg, 1524); Melanchthon, “De conjugio” (1551), in Opera, I (Erlangen, 1828); Bucer, whose work is mentioned in connection with the English Reformation; the jurist Monner, Tract. de matrimonio et clandestinis conjugiis (Jena, 1561); and in the seventeenth century especially by Hülsemann, Extensio breviarii theologici (3d ed., Leipzig, 1655); and the jurist Forster, De nuptiis (Wittenberg, 1617). The more essential parts of the works of Luther, Brenz, Bugenhagen, Bullinger, and Melanchthon may also be found in that remarkable treasury of materials gathered by Sarcerius, Ein Buch vom heiligen Ehestande (1553); enlarged under title Corpus juris matrimonialis (Frankfort, 1569).

[7]

Heading the modern literature is Richter’s able Beiträge zur Geschichte des Ehescheidungsrechts in der evang. Kirche (Berlin, 1858), which has the special merit of first classifying the post-Reformation writers on divorce according to their more rigid or more liberal tendencies. The subject is also treated with the usual precision and thoroughness in his Lehrbuch des kath. und evang. Kirchenrechts (8th ed., Leipzig, 1886). Important likewise are Strippelmann, Das Ehescheidungsrecht (Cassel, 1854); Goeschen, “Ehe,” in Herzog’s Encyclopaedie, III, 666-707 (Stuttgart and Hamburg, 1855); Hauber, “Ehescheidung im Reformations-Jahrhundert,” in Jahrbücher für deutsche Theologie (1857), II; Hubrich, Das Recht der Ehescheidung (Berlin, 1891); Buchka, Das mecklenburgische Ehescheidungsrecht (Wismar, 1885); Gräbner, Ueber Desertion und Quasidesertion (Colberg, 1882); and Friedberg, “Beiträge zur Geschichte des brand.-preuss. Eherechts,” in ZKR., VIII (Tübingen, 1886-87). Weydmann, Luther (Hamburg and Gotha, 1850), has two chapters on Luther’s views and his matrimonial life. The second and third parts of Vol. III of Schulte’s Geschichte der Quellen und Litteratur des can. Rechts (Stuttgart, 1880) provide a mass of valuable biographical and bibliographical material for the whole post-Reformation period.

Richter’s well-edited and now exceedingly scarce Kirchenordnungen des sechszehnten Jahrhunderts (Weimar, 1846) contains the legislation of the Evangelical churches on marriage and divorce. Especially important for the seventeenth century is the very rare Des Herzogthums Wirtemberg ernuerte Ehe- und Ehe-Gerichts-Ordnung (Stuttgart, 1687), marking the beginning of a more liberal treatment of the divorce problem. The ecclesiastical ordinances are analyzed by Goeschen, Doctrina de matrimonio (Halle, 1848); and by Dietrich, Evangelisches Ehescheidungsrecht (Erlangen, 1892). Original divorce decrees and opinions are collected in Bruckner’s Decisiones juris matrimonialis, II (Gotha, 1724); and several cases are published by Schleusner, “Anfänge des protest. Eherechts,” in ZKG., XIII (Gotha, 1892). The best monographs on the evolution of jurisdiction and process in such causes, aside from the work of Dietrich just mentioned, are Geffcken, “Zur ältesten Geschichte und ehegericht. Praxis des Leipzig. Konsist.,” in ZKR., 3. Folge, IV (Freiburg and Leipzig, 1894); Hinschius, “Beiträge zur Geschichte des Desertionsprocesses,” ibid., II (Berlin, 1862); and especially Stölzel, Ueber das landesherrliche Ehescheidungsrecht (Berlin, 1891), the first part of which having already appeared in ZKR., XVIII (Freiburg and Tübingen, 1883). Stölzel holds that the authority of the chief magistrate to grant divorce is originally a right of episcopal dispensation, and that his authority is not superseded by the imperial law of 1875. On the controversy growing out of this dual question see Meurer, Das landesherrliche Ehescheidungsrecht[8] (Freiburg, 1891); and compare Scheurl, “Die Ablösung des Eherechts von dem Kirchenrecht,” in ZKR., XIII (Tübingen, 1876); Buchka, “Das Eheschliessungsrecht,” ibid., XVI; Sicherer, Personnenstand und Eheschliessung (Erlangen, 1879); the two dissertations of Wasserschleben, each entitled Das Ehescheidungsrecht kraft landesh. Machtvollkommenheit (Giessen, 1877; Berlin, 1880); and Hinschius, Das Reichsgesetz (3d ed., 1890). On the rise of the early consistorial courts see especially Mejer, “Anfänge des Wittenberger Consistoriums,” in ZKR., XIII (Tübingen, 1876); idem, “Zur Geschichte des ältesten protest. Eherechts,” ibid., XVI (Tübingen, 1881); both articles being reprinted with other matter in his Zum Kirchenrecht des Reformationsjahrhunderts(Hanover, 1891).

Since the Reformation the questions of the proper grounds of divorce and of the remarriage of divorced persons have given rise to perennial discussion. Among the many writings so produced may be mentioned Gerlach, Kirchenrechtliche Untersuchung (Erlangen, 1839); Savigny, “Darstellung der in den preuss. Gesetzen über die Ehescheidung unternommenen Reform,” in Vermischte Schriften, V (Berlin, 1850); Müller, Ueber Ehescheidung und Wiederverehlichung geschiedener Gatten (Berlin, 1855); Hundrich, Ueber Ehen und Scheidungen (Breslau, 1855); Seidler, Beiträge zur Reform der preuss. Gesetzgebung (Nordhausen, 1861); Hoyer, Die Ehescheidungsfrage (Berlin, 1859); Scheurl, Zur praktischen Lösung der Ehescheidungsfrage (Nürnberg, 1861); Harless, Die Ehescheidungsfrage(Stuttgart, 1861); Bräunig, Das Recht der Ehescheidung (Zwickau, 1861); Huschke, Was lehrt Gottes Wort über die Ehescheidung? (Leipzig and Dresden, 1860); idemBeleuchtung der Einwürfe gegen meine Schrift (Leipzig and Dresden, 1861). Among the many Latin dissertations on the subject are Majer, De separatione cohabitationis (Tübingen, 1675); Eckstein, De divortio ex causa desertionis (Tübingen, 1675); Wagner, De divortio, et convictus conjugalis separatione(Magdeburg, 1723); Memminger, De divortio propter insidias vitae structas (Halle, 1738); Struvvius, De jure divortiorum (Jena, 1735); Seiff, De divortio totali(Giessen, 1740); Mossheim, De divortio (Jena, 1737, 1773); Scopp, Tractatus, de jure divortiorum (Frankfort and Leipzig, 1756); Wunderlich, De separatione a thoro et mensa (Jena, 1774); and especially the Controversiae circa jura divortiorum (2d ed., Halle, 1729), being a reprint of tracts of Kayser, Lange, and Michaelis. For the more recent development of the law in German lands see Schilling, Der Ehescheidungsprocess in den sächsischen Gerichten (Leipzig, 1831); Ehegerichts-Ordnung für den Kanton Basel-Stadtheil (Basel, 1857); Lauenstein, Hannoverisches Eherecht und Process-Verfahren (Hanover, 1869); Peters, Die Ehescheidung (Berlin, 1881); Wasserschleben, Das Ehescheidungsrecht (Berlin, 1887); Hergenhahn, Das Eheschliessungs- und Ehescheidungs-Recht (Hanover, 1890-93);[9] Ney, Das Kirchenrecht (Berlin, 1895); Part II of Lehr, Le mariage, le divorce, et la séparation (Paris, 1899); Erles, Ehescheidungsrecht und Ehescheidungsprozess (2d ed., Berlin, 1900); and Dedekind, Das protest. Ehescheidungsrecht und Verwandtes (Braunschweig, 1872), containing decisions extending over many years with full bibliographical citations.

Of primary importance for the Reformation in England are the writings of Becon, Hooper, Tyndale, and Whitgift, all, with the Original Letters, comprised in the publications of the Parker Society and described in Bibliographical Note IX. The radical doctrines of Bucer’s De regno Christi (1557) were supported by Milton, who published an English version under title of “The Judgment of Martin Bucer,” in Prose Works, III. Pocock’s Records of the Reformation: The Divorce, 1527-1533 (Oxford, 1870), has placed within easy reach a fine collection of original materials relating to Henry VIII.’s famous cause; and Huth, The Marriage of Near Kin (2d ed., London, 1887), has provided a bibliography of the extensive literature to which it has given rise. For the whole period Burnet’s History of the Reformation (London, 1850) is of service. The state of public sentiment is reflected in Raynold’s Defence of the Judgment of the Reformed Churches (1609, 1610); the opposing work of Bunny, Of Divorce for Adultery, And Marrying againe: that there is no sufficient warrant so to do (Oxford, 1610; prepared for publication in 1595); and the curious Lawes Resolutions of Womens Rights (London, 1632). The corruption and injustice often attending the proceedings of the old spiritual courts in actions for annulment of wedlock are revealed in Archbishop Abbot’s The Case of Impotency As Debated in England, In that Remarkable Tryal An. 1613, between Robert, Earl of Essex, and the Lady Frances Howard (London, 1715), in which King James I. appears in the rôle of pander to the lust of his guilty favorite. The publication of this book, a century after it was written, appears to have been suggested by the similar Pleadings for the Marquis de Gesvres against the Marchioness (London, 1714). In this connection may also be mentioned as illustrative material the Cases of Divorce for Several Causes (London, 1715); and the Crim. Con. Actions and Trials and other Legal Proceedings relating to Marriage before the passing of the present Divorce Act (London, n. d.). With these may be compared the modern case Ehescheidungs-Process Colin-Campbell (London, 1886). For the Stuart period have also been used Barrington, Observations Upon the Statutes (2d ed., London, 1766); Hale, History of the Pleas of the Crown (London, 1800); Coke, Reports (London, 1826); his Institutes; and the Reports of Croke, Kelyng, and Marche.

Milton’s “Doctrine and Discipline of Divorce,” “Tetrachordon,” and “Colasterion” may be found in Vols. III and IV of his Prose Works[10] (London, 1889-90). The only special work on parliamentary divorce is that contained in Macqueen’s Practical Treatise on the Appellate Jurisdiction of the House of Lords and Privy Council (London, 1842). There are a number of papers relating to the early cases in the Reports of the Historical Manuscripts Commission. Morgan, Marriage, Adultery, and Divorce (Oxford, 1826), has a long account; and the Lord Roos suit gave rise to The Case of Divorce and Re-Marriage (London, 1673). The proceedings in the Northampton case may be found in Howell’s State Trials, XII.

The Statutes at Large and Hansard’s Parliamentary Debates are, of course, in frequent requisition. For the reform of the laws relating to affinity and divorce important sources are the “First Report of the Commissioners” (affinity), in Brit. Documents, 1847-8, XXVIII (London, 1848); “First Report of the Commissioners” (divorce), ibid.1852-3, XL (London, 1853); “Evidence before the Select Committee of the House of Lords, 1844” (divorce), reprinted ibid.A Return giving an Outline of Marriage Laws, and the State of the Law of Divorce, in three parts (London, 1894); Return of the Number of Divorces, Part I, “Foreign Countries;” Part II, “Brit. Colonies”(London, 1895-96); and the Report of the Upper House of the Convocation of Canterbury, 1885 (divorce).

The development of a liberal sentiment in contemporary literature may be traced in A Treatise Concerning Adultery and Divorce (London, 1700); Two Cases: The First of Adultery and Divorce (London, 1702); the anonymous Essay upon Divorcement (London, 1715), replying to Milton; Salmon, A Critical Essay Concerning Marriage (London, 1824), accepting Milton’s views; Cri d’une honnête femme qui réclame le divorce (London, 1770); Observations on the Marriage Laws particularly in reference to the Case of Desertion (London, 1815); and Plea for an Alteration of the Divorce Laws (London, 1831). With these writers may be compared Ireland, Nuptiae sacrae (London, 1801, 1821, 1830), opposing Bishop Horsley’s argument that in case of divorce the Scriptures directly prohibit the marriage of the adulterer with the adulteress; Tebbs, Essay on the Scripture Doctrines of Adultery and Divorce (London, 1822), too harshly accused of plagiarism by the author of the preceding book; Keble, Sequel of the Argument against immediately repealing the Laws which treat the Nuptial Bond as indissoluble (Oxford, 1857), opposing the proposed divorce law; and Browne, The Marriage of Divorced Persons in Church (London and New York, 1896), taking a reactionary position.

Important for the chapter are Glasson, Histoire du droit et des institutions … de l’Angleterre (Paris, 1882-83); Cleveland, Woman under the English Law(London, 1896); Barclay, La femme anglaise (Paris, 1896); Lehr, Le mariage, le divorce, et la séparation (Paris,[11] 1899); Lecky, Democracy and Liberty (New York, 1896); Neubauer, “Ehescheidung im Auslande,” in ZVR., VII (Stuttgart, 1887); Swinderen, “Ueber das Gütterrecht der Ehefrau in England,” ibid., V (Stuttgart, 1884); Hirschfeld, “The Law of Divorce in England and in Germany,” in Law Quarterly Review, XIII, October (London, 1897); Montmorency, “The Changing Status of a Married Woman,” ibid., April (London, 1897); and the able article “Divorce,” in Law Review (English), I (London, 1845). The absurd conflicts of English and Scottish law, as illustrated especially by Lolley’s case, are discussed in Brougham’s “Discourse on the Law of Marriage, Divorce, and Legitimacy” (1835) and his “Speech on the Scotch Marriage and Divorce Bills” (1835), both in Speeches, III (London, 1838); Fraser, Conflict of the Laws in Case of Divorce(Edinburgh, 1860); and Fergusson, Reports of Some Decisions (Edinburgh, 1817); while the proceedings in divorce under the old law are treated by Poynter, Doctrine and Practice of the Ecclesiastical Courts in Doctors Commons (London, 1822). Besides the technical treatises of Bishop, Geary, Ernst, and Hammick may be consulted Spence, Equitable Jurisdiction (Philadelphia, 1846); Baker, Husband and Wife and the Married Women’s Property Act, 1882 (London, 1882); Barrett-Leonard, The Position in Law of Woman (London, 1883); Shelford, Marriage and Divorce (London, 1841); Browne, Divorce and Alimony (Philadelphia, 1890); Browning, Practice and Procedure of the Court for Divorce (London, 1862); idemExposition of the Laws of Marriage and Divorce (London, 1872); and Harrison, Probate and Divorce (4th ed., London, 1891). Among the works elsewhere described from which aid has been derived are those of Bracton, Blackstone, Reeves, Burn, Jeaffreson, Lingard, Wharton, Pollock and Maitland, and Haggard, Reports of Cases in the Consistory Court of London (London, 1822).

For the literature relating to marriage with a deceased wife’s sister and other kindred see a footnote below and the elaborate bibliography by Huth in the work already mentioned.]

I. THE EARLY CHRISTIAN DOCTRINE AND THE THEORY OF THE CANON LAW

aHistorical elements of the Christian teaching.—According to the spirit of the earliest Christian teaching divorce, properly so called, is strongly condemned, though by a strict interpretation of its letter it may not be entirely forbidden. Between the first assertion of the new doctrine and the final triumph of the canonical theory of absolute indissolubility of the marriage bond intervenes a struggle of twelve hundred[12] years, whose more salient features may now be sketched in rapid outline.

To understand the influences which aided in molding the conceptions of the founders of the Christian church relative to marriage and divorce, one must first of all notice the legal and social environment. By each of the three systems of law with which originally the Christians were most acquainted marriage was treated as a private or lay contract, and its dissolution was therefore freely allowed. Among the early Greeks, at any rate in the Homeric age, divorce is thought, on slender evidence, to have been entirely unknown,[1] although the practice arose later. By the Athenian law, which probably was not entirely supplanted by the Roman until 212 A.D.,[2] it was freely granted to either spouse. The benefit inured, however, mainly to the husband, since to begin proceedings for a divorce the wife was required to present in person to the archon a written statement of her desire; and this, in a society where popular sentiment relegated woman to a seclusion truly oriental, it was in practice exceedingly hard to do.[3]

By the Jewish law, as it still existed at the dawn of the present era, divorce was the one-sided privilege of the man.[4][13] At most there was only a faint trace of the woman’s later right, sanctioned by the Talmud, of demanding a separation.[5] Legally, for the slightest reason, as the school of Hillel justly maintained, the husband could put away the wife by simply handing her a “get” or bill of divorce.[6] By the written law only in two cases, for grave misconduct, was he deprived of this power;[7] though in practice there were several ameliorating conditions which tended to put a check upon arbitrary action. Thus, while divorce was a private transaction, certain formalities had to be observed in connection with the “get” which secured the restraining influence of publicity;[8] and in case the wife was unjustly repudiated the[14] dower, representing the ancient mohar, or purchase price of the bride, had to be paid to her from the husband’s property.[9] Moreover, some of the limitations of the husband’s despotic power recognized by the Mishnah or oral law may already have been in force; and the highest ethical sentiment among the Jews had long been decidedly against too great freedom of divorce. It was the rabbi’s duty as much as possible to discourage it and to effect reconciliations between husband and wife.[10]

Negatively, however, it was the later law of Rome which had most to do with shaping the ideas of the Christian Fathers relative to the nature of marriage and the doctrine of divorce.[11] By each of the three ancient forms of marriage the wife came or might come under the power of the husband, in manu viri. In the family she was legally regarded as being in a daughter’s place, in loco filiae;[12] and in each[15] case divorce was solely the husband’s prerogative.[13] But by the beginning of our era all these older and stricter forms, with their consequent one-sided right of separation, had been practically superseded by free contract in which the husband and wife were placed on an equal footing.[14] By this form marriage became a simple private agreement. The wife did not pass under the manu of the husband. She retained full control of her property, being in this regard, as it were, temporarily deposited at her husband’s side;[15] while divorce became a formless private transaction to which the woman was as freely entitled as was the man.[16][16] No intervention of court or magistrate was essential. So far, indeed, was carried the theory of absolute liberty of either spouse to dissolve the contract that, according to Cicero, the jurists in one case were in doubt whether a divorce did not legally arise ipso facto through the consummation of a second marriage by one of the parties during the lifetime of the other.[17] Augustus, however, introduced an important change in the interest of publicity, requiring the party wishing a divorce to declare to the other his purpose in the presence of seven witnesses, who must be Roman citizens of full age; otherwise the divorce to be null and void.[18] But there was no intention through this condition of establishing the jurisdiction of the state in the matter of divorce, which remained, as before, a private legal act of the interested persons. “Still less was it the purpose of the state to put any material restriction upon the freedom of divorce.”[19] To this liberty there was but one exception. The freedwoman might not repudiate her patron, her former master, who had taken her in marriage.[20] In all other cases the divorce, however arbitrary or unjust, was legally effective. There was no action for the restitution of conjugal[17] rights; though the responsible party might in certain cases suffer pecuniary damage.[21]

What were the moral and social results of this excessive freedom of divorce? To many the answer seems easy enough; for during the later republic and the early empire the laxity of the nuptial bond became a notorious scandal. At the capital, and especially in the imperial circle, wives as well as husbands gave free rein to their licentious passions. Marriage became unpopular. A recent historian even declares that “almost always” it was ended by divorce.[22] Already in the age of the Gracchi, Metellus the Macedonian cynically exclaimed: “Romans, if we could get along without wives, assuredly none of us would accept so grievous a burden; but since nature has ordained that one cannot live easily with them, nor live without them, let us sacrifice the happiness of our short life to the perpetuity of our nation.”[23] Later even the most distinguished and reputable men, as if in mockery of wedlock, put away their wives on purely selfish or absurdly trivial grounds.[24]To believe the exaggerations[18] of the satirists, one changed his partner almost as often as the cut of his garment.[25] “Seneca denounced this evil with especial vehemence, declaring that divorce in Rome no longer brought with it any shame, and there were women who reckoned their years rather by their husbands than by the consuls.”[26] Nevertheless, the abuse was more a result than a cause of the gradual decline of Roman morals during the two centuries following the conquest of Carthage.[27] Doubtless, the state in neglecting to exercise a proper jurisdiction in this field had abrogated a function important for her own stability. Proper restraints would have lessened the evil. But the character of the law was very far from being its sole, or even its primary, cause. “In a purer state of public opinion,” well observes Lecky, “a very wide latitude of divorce might probably have been allowed to both parties, without any serious consequences. The right of repudiation which the husband had always possessed was, as we have seen, in the Republic never or very rarely exercised. Of those who scandalised good men by the rapid recurrence of their marriages, probably most, if marriage had been indissoluble, would have refrained from entering into it…. A vast wave of corruption had flowed in upon Rome, and under any system of law it would[19] have penetrated into domestic life. Laws prohibiting all divorce have never secured the purity of married life in ages of great corruption, nor did the latitude which was accorded in imperial Rome prevent the existence of a very large amount of female virtue.”[28] Nor, it may be added, does it appear that the family life of the people at large, notably that of the middle classes in the provinces, was seriously tainted by the social corruption of the capital, where all the causes of moral degeneration were especially active.

It is, however, not surprising that the founders of the Christian church should have regarded the laxity of the marriage bond as a sign, if not the primary cause, of the degradation of Roman society. From the beginning an earnest effort is made so far as possible to restrict the liberty of separation and to prohibit the persons separated on proper grounds from contracting further marriage. The various passages of the New Testament relating to the subject are disjointed and confusing in their details.[29] Many vital questions are either completely ignored or left in such obscurity as to open the way for wide divergence of doctrine and the bitter controversies of future ages, especially those of the Reformation period. According to the fundamental teaching of Jesus, as reported by Matthew, the[20] husband is forbidden to put away the wife except for unfaithfulness.[30] Divinely created as male and female, “they twain shall be one flesh;” and “what therefore God hath joined together, let not man put asunder.”[31] Whether for the same reason the woman may put away the man, or whether either the innocent or the guilty party may contract a second marriage, we are here not expressly informed. Inferences may, of course, be drawn by assuming that Jesus had the principles of the Jewish law in mind; but this mode of procedure is scarcely satisfying.[32] Nor do the other sacred writers throw any clear light on these important questions. Rather do they deepen the obscurity; for both Mark and Luke appear absolutely to prohibit divorce, not expressly admitting even the one ground of separation[21] granted on the authority of Matthew. Moreover, Mark sets up a new stumbling-block. In the presence of the Pharisees, who sought to tempt him, Jesus is made to put aside as morally wrong and born of hardness of heart the harsh freedom of divorce secured to the man alone by the Mosaic code; while “in the house” he tells his disciples that “whosoever shall put away his wife, and marry another, committeth adultery against her,” and “if a woman shall put away her husband, and be married to another, she committeth adultery;” so leaving us in doubt whether legal separation without the privilege of a further marriage is sanctioned—in effect thus anticipating the later distinction between divorce quoad thorum and quoad vinculum; or, if such separation be sanctioned, whether, in sharp contrast to the spirit of Jewish law, the wife is placed on a level with the husband in this regard.

The utterances of Paul on this subject,[33] as on all questions connected with marriage and the family, are of the highest importance in view of their historical consequences. Referring directly to the teaching of Jesus, he first seemingly denies the right of divorce to either party. With Mark and Luke he omits the exception mentioned by Matthew; and with Mark he expressly forbids the wife to “depart from her husband,” adding, however, the inconsequent and bewildering command, “if she depart, let her remain unmarried, or be reconciled to her husband.” Here apparently, where both persons are believers, separation a mensa et thoro is approved. Whether in such case this is the only Christian form of divorce allowed either party, however grave the cause of separation;[34] or whether his rule[22] applies to the woman only, and then merely when some lesser ground of action exists, the Apostle to the Gentiles fails entirely to place beyond the field of debate.

Thus far Paul has spoken professedly on the authority of “the Lord.” Next he contemplates the case of an existing union between a Christian and an unbeliever; and on his own judgment he admits a new ground of separation. “But to the rest speak I, not the Lord.” The Christian may not put away or abandon his spouse on account of difference in religious faith. “For the unbelieving husband is sanctified by the wife, and the unbelieving wife is sanctified by the husband: else were your children unclean; but now are they holy. But if the unbelieving depart, let him depart. A brother or a sister is not under bondage in such cases.”[35] Again, through this last remark, the seeds of dissension are planted; for it is not clear whether the “bondage” from which the brother or sister is freed is that of the existing marriage or the irksome necessity of perpetual single life after separation.

Upon these Bible passages, often vague and puzzling in the extreme,[36] was eventually erected the whole doctrine of the mediæval church relating to divorce. It is not surprising that harmony was reached only after many centuries of struggle. With the exact processes of argument by which ingenious theologians have in all ages sought to reconcile or interpret the scriptural teaching we are here but little concerned. At present we are mainly interested in the[23] general results of thought as they find expression in the law and practice of the church previous to the Reformation. The subject presents four phases or aspects of development, each of which will be briefly considered: the views of the early Fathers; the legislation of the Christian emperors; the compromise with Germanic custom; and the final settlement of doctrine in the canon law.

bViews of the early Fathers.—During the first four centuries of our era the so-called “strict” construction of the utterances of Jesus and Paul relating to the twofold question of separation and second marriage was formulated by the Fathers of the church; and the principles then agreed upon were in the end, after an intervening period of vacillation and compromise, to be accepted and elaborated into a complete system of law by the canonists. The literature of this early debate may be regarded as reaching from the Pastor of Hermas, a writer in the first half of the second century, highly respected in Christian antiquity,[37] to Augustine, late in the fourth century (died 430), who towers above all the other Fathers in his influence for good or evil in the history of European thought. At first the Pauline interdict of further marriage after separation receives more attention perhaps than the question of divorce itself, with its assigned cause as laid down by Jesus; for it is strongly urged that the chief evil of a too lax divorce system, such as the[24] Roman, is the facility of second marriage regardless of the guilt or innocence of the parties.[38] Setting aside for the present the case of the Christian whose unbelieving spouse voluntarily departs—the casus apostoli or privilegium Paulinum, as it is later styled by the canonists[39]—nearly all are agreed that divorce is forbidden except for the one cause mentioned by Matthew. There is, however, a divergence of view in two important particulars. On the one hand, certain writers, such as Tertullian and pseudo-Ambrose, following the principle of the Jewish law, admit this ground of repudiation to the advantage of the man, but not to that of the woman; while others, like Epiphanius, maintain the equal right of the sexes in this regard. On the other hand, in a few instances the word “adultery”[40] is accepted in an allegorical or spiritual sense, thus greatly widening the field of divorce. In this way, for example, Hermas, Hieronymus, and, for a time, Augustine anticipate the mode of interpretation adopted by some of the Reformation Fathers, admitting idolatry, apostasy, and covetousness, equally with carnal transgression, as proper grounds of separation.[41]

The case is similar with respect to second marriage. Apparently there is a strong tendency from the beginning to treat marriage as indissoluble, but, “intentionally or unintentionally,” the utterances of the Fathers on this vital question are unclear. Frequently they content themselves, as Geffcken observes, with a “paraphrase of the scriptural[25] texts relating to the matter.”[42] Seemingly, according to the common or prevailing opinion, neither party whether innocent or guilty is allowed to form a new marriage during the lifetime of the other; but there is on this point a great lack of precision.[43] Tertullian, after yielding to Montanism, even goes so far as to reject all second marriage as un-Christian; and the same position is taken by Minutius Felix.[44] There are, however, less rigid constructions. By some Fathers the right of remarriage is conceded to the man repudiating a guilty wife, while they deny it to the woman under like conditions. Others, actuated by a livelier sense of justice, like Epiphanius, concede it to both consorts alike; but these opinions are rejected by the majority.[45] More and more, in theory if not always in practice, the antagonism of the church to the second marriage of a divorced man or woman becomes apparent as we approach the close of the period under consideration. This is proved even by the action of the provincial assemblies. Thus the Spanish Council of Elvira of the year 306 decrees that the woman who puts away a guilty husband and marries another shall be excommunicated;[26] and, save in case of mortal sickness, she shall not be admitted again to communion until after her first husband’s death. If, however, she have left her husband without cause and contracted another marriage, she shall not be admitted to communion even on the death-bed; but nothing is said concerning a dissolution of the later marriage.[46] Similar in spirit are the canons of the Council of Arles held in the year 314. The general principle of the indissolubility of the matrimonial relation is positively asserted,[47] but in connection with a concession which illustrates the practical difficulty of consistently enforcing the new doctrine in all parts of the Roman world. The youthful husband[48] who puts away a guilty wife is to be “advised” not to marry again during her lifetime; thus dealing far more gently with the man than did the Council of Elvira with the woman for the same offense.[49]

Finally, with Augustine, the strict doctrine of the early church takes a definite form, to which the masters of later times look back as to an authoritative canon of interpretation. He gave to the theory of indissolubility, declares Esmein, a “basis solid, in a measure scientific. He gave it a consistency[27] forced from the sacrament of marriage. He set aside at one stroke all the causes of divorce admitted by the secular law: sickness, captivity, or prolonged absence. He was, one may say, the artisan who gave the final touch to the theory of indissolubility.”[50] According to Augustine, adultery is the only scriptural ground of separation; but even this does not dissolve the nuptial bond. Moreover, those who, following the letter of Matthew’s text, would for this offense allow the man, but not the woman, the right of repudiation, he “justly reproaches with violating one of the great principles of Christian law—the equality of the wedded pair.”[51] Similar views are held by Hieronymus, Ambrose, Jerome, Chrysostom, and other contemporaries of Augustine;[52] and it is probably due to his influence mainly that in 407 the strict theory of indissolubility was proclaimed by the Council of Carthage;[53] as already in 405 it had been accepted in a decree of Pope Innocent I. addressed to the bishop of Toulouse.[54]

In practical life the strict theory of the Fathers came very far short of realization. Hermas, who strongly favors the rigid view, allows the man to marry again whose wife[28] sins a second time after once being reconciled.[55] Basil goes farther, declaring that the husband abandoned by his wife is worthy of pardon, and that the woman who then marries him is not condemned.[56] Even Jerome excuses Fabiola, a young Christian woman of high position who had repudiated a licentious husband and contracted a new marriage, saying, “if she is blamed because when her husband was divorced she did not remain unmarried, I will readily admit her fault, while I admit her necessity.”[57] Origen shows that some rulers of the church in such a case permit a woman to marry again while the first husband is living;[58]and Augustine confesses that the women who abstain from remarriage after divorce are extremely few.[59]

cThe legislation of the Christian emperors.—Where the most severe teachers of the early church, and even the ecclesiastical councils themselves, as we have seen, were thus led to temporize, it is not surprising that an enlightened secular policy should be compelled to take intermediate ground. The legislation of the first Christian emperors goes far beyond the narrow limits which Tertullian, Clement, or Augustine would have drawn. For centuries, through[29] every change in the statutes, the Roman principles of one-sided divorce and divorce by mutual consent were maintained, though it was precisely these principles against which primitive Christianity took its firmest stand. “It was a maxim of Roman law far down beyond the time when the emperors became Christian, that no obstacle ought to be put in the way of a dissolution of marriage caused by the free consent of the partners, liberty of marrying again being in this case equally unrestricted. The lawyer Paulus says, that it has been thought improper that marriages, whether already contracted or about to take place, should be secured by the force of penalty (poenae vinculo obstringi), that is that two parties ought not to be forced by fear of penalty either to enter into a state of wedlock to which they were pledged, or to keep up such a state if they were agreed to the contrary. And it was laid down that marriage was so free, according to ancient opinion, that even agreements between the parties not to separate from one another could have no validity (pacta ne liceret divertere non valere).”[60] One-sided divorce was equally free, except in the cases and under the conditions fixed by Augustus,[61] “saving that here, if the woman had caused the divorce by her conduct, a large share of her dower was withheld from her, and if the man had caused it, he might be liable to pay over the whole of the dower, and that within a short term. The parties were subjected until the time of Justinian to a judicium morum, which might be instituted on a complaint of either consort. The fear, then, of losing a portion or the whole of the dower, and the dread of a loss of reputation, when the conduct of the parties in their married life should be investigated, seem[30] to have been the only inducements to prevent one-sided divorces. But what if no misconduct could be alleged on the part of the man, what if he dismissed his wife to marry a richer woman, the law in this case had no restraining power. And where the wife brought no dower, as might happen in the lower classes, there could be no operation of the law at all.”[62]

Accordingly, the legislation of the early Christian emperors shows no radical departure from the principles of the existing civil law. Divorce ex consensu was not prohibited until Justinian, who decreed that only when both partners are about to enter the cloister shall a separation by mutual agreement be permitted.[63] But this prohibition was short-lived; for in consequence of it the number of suits growing out of “poisoning or other attempts upon life among married people increased in so frightful a manner”[64] that the provision was abrogated by Justin II., the immediate successor of Justinian.[65] On the other hand, the efforts of Constantine and later rulers are directed mainly toward checking the evils of one-sided divorce. This is done chiefly through restricting the number of legal grounds of separation and sharpening the penalties for their disregard. Thus in 331 Constantine ordains that trifling causes (exquisitae causae) shall no longer suffice for a repudium justum or legal divorce at the will of one party. The woman may put away her husband only when he is a murderer, poisoner, or violator of sepulchers; and the man is allowed to repudiate his wife only when she is guilty of poisoning, procuring, or adultery. If the divorce takes place for any other reason, the woman so violating the statute shall forfeit all claim to restitution of dower and suffer transportation to an island;[31] while the man in like case must at once surrender the entire dos, being prohibited also from contracting another marriage.[66] “Still further, if he thus married, his repudiated wife ‘could invade his house,’ as the law expresses it, and acquire possession of the entire dower of her successor.”[67] It should be noted, however, that the Roman principle of divorce bona gratia, or one-sided separation for a legal cause not implying any guilt or offense, was still retained.[68]

In 363 Julian repealed the divorce law of Constantine;[69] but the principle of restricting the grounds of arbitrary repudiation was again adopted in 421 by Honorius and Constantius; though, like Julian, they allowed arbitrary separation for lesser faults, with retention of some portion of the dower.[70] Theodosius II., in 439, abrogating previous legislation, restored the law of the early empire; but “after ten years of experiment, in which divorces had alarmingly increased, gave out another law,[71] which laid down the causes for which one party might lawfully separate from the other. The woman was authorized to do this if the man had been guilty of certain crimes, among which are murder, poisoning, plotting against the government, fraud, and various sorts of[32] robbery, cruelty toward or attempts on the life of his wife, intimacy with prostitutes, and adultery. The causes for which a man could without penalty put away his wife were for the most part of the same description with those just mentioned. But peculiar to her are the offenses of passing the night out of his house, or visiting the theatre, circus, or other public place against his will.”[72] If the divorce occurs for any reason other than those mentioned in the statute, the penalty for either person is loss or surrender of the dower and the ante-nuptial gift; while in addition the woman, under penalty of “infamy,” is prohibited from marrying again within five years.[73] This is a severe discrimination against the wife; but in one important matter, it will be noted, the law of Theodosius is strikingly impartial; for separation is permitted on account of adultery of the man as well as for that of the woman. In this regard the measure is far more liberal than the earlier Roman law, according to which adultery is not a crime which a husband can commit against his wife.[74] Moreover, while this offense is not always mentioned in the constitutions of the Christian emperors as legal ground for divorcing the husband, it is punished with extreme rigor. Sometimes both offenders are condemned to death. Sometimes a discrimination is made, the woman usually suffering the harsher penalty.[75]

[33]

The legislation of Justinian, except in abolishing divorce by common consent, does not differ essentially in principle or detail from that of Theodosius II. The causes assigned for a reasonable divorce (ex rationabili causa) are much the same as in the former law. For disregard of the statute the woman loses her dower and is condemned to lifelong imprisonment in a cloister; while the man forfeits the nuptial gift (donatio propter nuptias), and besides must pay a fine equal to one-third of that donation.[76]

Thus it appears that during the two centuries between Constantine and Justinian the legislation of the state relative to the vital question of divorce is practically untouched by the influence of Christianity. Informal divorce bona gratia[77] and divorce by mutual consent, both contrary to Christian teaching, are freely allowed. The principle of further marriage after separation is fully maintained for the innocent party, and usually under restrictions for the guilty person as well. The causes of legal divorce are, indeed, limited and the penalties for unjust repudiation made more severe; but the strict principle of indissolubility of the marriage bond, as already conceived by Augustine and his contemporaries, is completely ignored.[78]

dThe compromise with German custom.—Far more important in its results is the contact of the Christian doctrine with Germanic customs and ideas. To the newly converted nations of Teutonic stock came the western empire as a proper[34] heritage. It would be their task to make the history of the future; to construct a new civilization by blending the best elements of their own culture with the maturer results of Roman experience. But this could be accomplished only through ages of struggle and compromise; through a slow and painful process of amalgamation in religion, language, and jurisprudence. For the Germans were relatively young in social progress. In law and institutions at the time of conversion they stood about where the Romans were when Roman legendary history begins. With respect to the customs of marriage and divorce they stood even lower; for the earliest collections of folk-laws, some of which were made after the acceptance of Christianity, disclose marriage as a real contract of sale through which the wife in theory, and no doubt often in practice, becomes the husband’s chattel. With regard to the primitive law of divorce there is scarcely any direct information. But it seems probable that originally the right of repudiation was the sole privilege of the man, though in practice the arbitrary use of his power must have been restrained by dread of the blood-feud and the fear of pecuniary sacrifice.[79] In the historical period, however, and long after the conversion divorce by mutual agreement seems to have prevailed very widely among the Germanic peoples; but with the exception of the Lex romana Burgundionum, it does not appear to be sanctioned in the folk-laws until the seventh[80] century, which fact has led to[35] the conjecture that this form of separation, “originally alien to the German legal consciousness,” was gradually adopted under Roman influence.[81] The folk-laws show that, side by side with divorce by free consent of the parties, the husband still possessed the right to put away his wife for certain specified crimes;[82] or, indeed, without assigning any cause whatever, though in that case he might suffer serious disadvantage with respect to property.[83]

Another principle of the ancient German law it is necessary to mention in order to obtain a starting-point for the measure of Christian influence. Originally, according to Wilda,[84] by the strict legal theory adultery is not a crime which a man can commit against his wife. He may be punished: indeed very generally in the folk-laws both the guilty persons may be slain when surprised by the aggrieved; but if he be punished “it is not for unfaithfulness to his wife, but for violating the rights of another husband.”[85] On the[36] other hand, for similar misconduct the woman is put to death. So “in Saxony, where the old heathen ideas survived until the forcible conversion under Charles the Great, as Boniface reports, the adulteress, stripped to the girdle, was driven out of her husband’s house and whipped through the streets of the village until she died.”[86]

To analyze the secular laws or ecclesiastical canons relating to divorce, as they were slowly developed on Germanic territory after the conversion, is not an easy task; for they reveal a striving to harmonize in various ways the often irreconcilable elements of Roman, Teutonic, and Christian ideas. In the first place, the imperial legislation remained in force for the Roman population, though in the compilations made under the barbarian kings various changes are made to satisfy new and complex relations.[87] Next, the German folk-laws show in many ways the evidences of compromise with Christian doctrine under the exigencies of practical life.[88] National sentiment will not suffer the absolute interdict of further marriage after separation; but the penalties for unjust action may be made so severe as to prepare the way for the strict theory of the church. In the Burgundian code, for example, the man who puts away his wife for any cause other than those named in the statute must surrender to her his house and all his possessions;[37] whereas in the West Gothic Interpretation of the Theodosian code the chapter on which this provision is modeled prescribes a similar penalty, not for the illegal divorce itself, but for contracting a second marriage after the unjust repudiation of the first wife.[89] Accordingly, in these laws one-sided divorce on the part of the husband is not entirely taken away; but the grounds on which he may act are more or less restricted in harmony with the scriptural rules; and the wife is herself given a rudimentary right of one-sided repudiation when the husband is guilty of very grave crimes. In the law of the West Goths, for instance, where Christian influence is more marked than in any of the other codes before the close of the eighth century,[90] the right of the man to put away his wife is restricted to the one cause mentioned by Matthew; while for two scandalous wrongs the woman may repudiate the husband and contract another marriage if she likes.[91] On the other hand, the ancient rule that a man cannot be guilty of adultery against his wife yields very slightly to the Christian principle of equality of the sexes with respect to the punishment of carnal sins. Generally,[38] according to the harsh sanction of the ancient law, the guilty woman as well as her paramour may be slain by the aggrieved.[92] In theory, as Geffcken insists, a husband in similar case is still merely responsible for violating the rights of another man; the only concessions to the Christian teaching being a tendency to check concubinage and the privilege of the woman, already mentioned, of repudiating her husband for certain offenses, among which, it may be noted, intimacy with other women is not found.[93]

Such are the salient features of secular legislation on German territory following the migration and settlement of the new nations. Let us now look at the question from the opposite point of view—that of the decrees and practice of the church itself. For more than three hundred years after the strict theory of Augustine had been proclaimed by the Council of Carthage and by Innocent I. in the beginning of the fifth century, there is more or less wavering on the part of ecclesiastical authorities. In general, it may be said there is a tendency to uphold the rigid doctrine of indissolubility; but the evidences of compromise with popular sentiment are by no means wanting. Almost always in the papal letters divorce with remarriage is absolutely forbidden.[94] Yet in 726 Gregory II., in a letter addressed to St. Boniface, permits a man to contract a new marriage because his wife by reason of infirmity is unable to perform her conjugal duty; and this opinion has proved a sore puzzle to[39] canonists and theologians, for it is utterly inconsistent with an earlier decision of the same pontiff.[95] A similar inconsistency exists in the conciliar decrees. The doctrine of indissolubility is rigidly enforced by the Council of Angers in 453; the two Councils of Orleans in 533; the Council of Nantes in 658; that of Friuli in 796; and generally by those of the ninth century.[96] On the other hand, several decrees are much more tolerant. In 465 the Council of Vannes “expressly exempts from anathema those men who marry again after putting away their wives for adultery proved;”[97] and, still more liberal, the Council of Agde, 505, while expressly allowing more than one cause of separation a vinculo, threatens with excommunication only those who repudiate their wives for the sake of remarriage without “establishing in advance before the bishops of the province the causes of their divorce.”[98]

At the time of the conversion the old English laws on this subject were probably much the same in character as those of their Teutonic kinsmen across the channel. From the code of Æthelberht it may perhaps be inferred that divorce is allowed at the will of either spouse. Apparently in all cases of arbitrary separation the responsible party suffers a severe penalty. The man loses all claim to repayment of the purchase price of the wife; while the woman or her guardian has to restore the same to the husband or his family.[99] The penitentials, as will presently be seen, afford[40] abundant evidence that in practice the spirit of ancient custom yielded but stubbornly to ecclesiastical influence. But, so far as it could be done by legislation, the century following the conversion of Kent saw the strict doctrine of the Roman see established in the daughter-church of England. At the Council of Hertford in 673 it is decreed that divorce shall not be permitted except on the ground assigned by the “holy evangel;” but should a man “put away the wife united to him in lawful wedlock, if he wish to be rightly a Christian, let him not be joined to another, but remain as he is or else be reconciled to his wife.”[100] After nearly two centuries, during which the records are silent on this subject, the same rule is laid down in the so-called Law of the Northumbrian Priests, by which anathema is invoked on one in holy orders who shall “forsake a woman and take another;” while the layman guilty of the same offense shall want “God’s mercy, unless he make bot;” everyone being required to “lawfully keep his wife, as long as she lives, unless … they both choose, with the bishop’s consent, to separate, and will thenceforth observe chastity.”[101] From this time onward, as clearly shown by the canons of Dunstan,[102] those issued under Æthelred at the Council of Eanham (ca. 1009),[103] and later decrees, the theory of indissolubility[41] was unswervingly accepted by the English church under sanction of the temporal power.[104]

Already in the Carolingian empire, through co-operation of the secular authority, the teachings of Augustine had gained a similar triumph. The ecclesiastical capitularies of the Frankish kings, from the ascendency of the house of Charles Martel to the consolidation of the state under Charles the Great, are of especial interest in this connection, for they prepare the way for the synthetic work of the canonists. During the dark period of the Merovingian line any attempt through legislation to deal seriously with divorce or any similar social or moral problem could scarcely arise; for it would have meant some restriction of the prevailing licentiousness, to which all classes were committed. Civil rulers were steeped in debauchery. The church was apathetic and corrupt. “With the advent of the Carolingian major domus, the level of morality begins to rise.”[105] Already[42] in 744, at the Synod of Soissons, a royal capitulary clearly forbids divorce to each spouse, except that a husband may put away a guilty wife on the scriptural ground; but in that case whether the innocent person may contract a new marriage we are not informed.[106] This attempt to enforce the rigid doctrine of the ancient church seems to have been premature; for a few years later, at the synods of Verberie (753) and Compiègne (757), rules much more tolerant are proclaimed.[107] These capitularies possess more than usual historical interest in view of their “profound and durable influence” on the final settlement of the law by Gratian and his successors.[108] Several grounds of divorce with remarriage are admitted. According to the decree of Verberie, the man whose wife plots against his life may put her away and take another spouse; but the divorced woman may not remarry. So also, by the same decree, the man may form a new marriage, if his wife through love of her parents or some selfish interest refuses to accompany him when he flees from danger or is constrained to follow his lord into another duchy or province. In this case, the woman must remain unmarried while her husband lives.[109] Again, the Synod of Verberie provides that if either person in course of the wedded life shall fall into slavery, the one remaining free is at liberty to marry again when he likes. “A single exception is admitted which throws a sombre light on the[43] society of that epoch: if a spouse under pressure of misery has sold himself as a slave, the partner remaining free, who has shared the bread thus gained and whom the sale has saved from hunger, is not entitled to a divorce.”[110]

Even more striking is the decree of Compiègne regarding the effect of religious vows. When by agreement either partner enters the cloister, the spouse remaining in the world has the right of remarriage. To this decision, so sharply in contrast with the mature doctrine of the canon law, it is significant that a papal delegate to the synod, Bishop George of Ostia, gave his consent. The severer and more orthodox principle had been followed by the Synod of Verberie, which prohibits the man from remarriage when he suffers his wife to take the veil.[111] Both decrees permit separation on various other grounds, such as error of condition and certain degrees of affinity, which, under the dangerous guise of nullity, “constitute veritable exceptions to the rule” that the nuptial tie cannot be dissolved.[112]

Finally there is a singular omission which has called forth an instructive comment from a modern scholar. “It is remarkable that neither of these decrees mentions adultery as a cause of divorce. This is so without doubt because the capitulary of Soissons already gave that quality to the sin of the woman who alone was considered. Besides, in that rude society, this cause of divorce in most cases was probably superfluous. The deceived husband had no need to invoke it. Not merely when he surprised his wife flagrante delicto, but also when he had grave suspicion against her, did he[44] take justice into his own hands, killing the guilty woman; and the deed probably went unpunished. In this regard the church appears to have shown ample indulgence. No doubt she entirely forbade a new marriage to the spouse who slew a partner; but that was never more than a prohibitive impediment for which dispensation was granted with sufficient ease. Here a means was admitted by law and custom for evading the rule of indissolubility of the conjugal bond. St. Augustine had already contemplated it; and various passages of Hincmar of Rheims show clearly that more than one husband had recourse to it in his time.”[113]

It is strange that so wide a relaxation of the principle accepted by the early church, in part under the sanction of Rome itself, should have preceded by so few years its complete triumph in the capitularies of Charles the Great. From 774 onward, with slight wavering, the rigid doctrine is maintained both by imperial and papal authority; as likewise it is expounded in the canonical literature of Gratian’s predecessors, notably by Benedict Levita and Hincmar of Rheims.[114]

But there is other testimony of a most convincing nature that the practice of the church could not keep pace with her theory. It is afforded by the penitentials. These are private manuals designed for the practical guidance of priests in their daily ministrations, one of the oldest and most interesting of which is that bearing the name of Theodore of Tarsus,[115] the reorganizer of the English church and president[45] of the Council of Hertford, where the orthodox rule relating to divorce was proclaimed. On this penitential and the somewhat older one of the Irish Columban the earlier Frankish penitentials are modeled, sometimes with literal exactness. Divorce with remarriage is allowed to one or both persons on various grounds. In case of adultery a discrimination is made in favor of the husband. He is given the right of repudiating the guilty woman; and, in case it be a dissolution of the first marriage, he may take a new spouse without delay. Even the divorced woman may remarry after a penance of five years. For the like sin, however, the wife is forbidden to send the husband away, except to enter a monastery.[116]

Again, for malicious desertion on the part of the wife, the man may contract a new marriage after five years, if the bishop gives his consent;[117] and a woman whose husband loses his liberty for crime committed has the right to wed another man after a single year, if it be the first marriage which is thus dissolved.[118]Remarriage is allowed either spouse when the other is made captive in war;[119] and in case of conversion each spouse has the right of one-sided divorce, if the other[46]remains in paganism.[120] Several other grounds of repudiation are recognized, as, for instance, when anyone has ignorantly married a person of servile condition;[121]or when a husband or wife is raised in rank and the consort remains in servitude.[122] But perhaps the most striking proof that in practice the church was obliged to compromise with popular sentiment is the repeated recognition of divorce by mutual consent.[123]

Such laxity seems to have marked the practice of the Frankish, and probably also that of the Anglo-Saxon, church during a period of a hundred and fifty years (650-800). With the beginning of the ninth century, however, a turning-point is reached. More stringent rules are prescribed by the councils; and new penitentials are prepared under ecclesiastical authority much more in harmony with the teachings of Rome. But even now, seemingly, the clergy shrank from the attempt fully to carry out the reactionary discipline. As a result a third class of manuals for a time appeared, occupying medial ground, and better fitted to satisfy the needs of populations not yet entirely able to give up the liberty which their ancient laws secured.[124]

[47]

eFinal settlement of the Christian doctrine in the canon law.—From the age of Charles the Great the ultimate triumph of the strict ecclesiastical theory of divorce was entirely assured. But there yet remained a twofold task which it would still require centuries to accomplish. On the one hand, the discordant utterances of the Fathers, the popes, and the councils had to be harmonized or explained away; while, at the same time, the results thus gained had to be exactly formulated and wrought into the intricate system of matrimonial jurisprudence. This was the work reserved for the canonists, and especially for the two great “masters,” Gratian and Peter Lombard. On the other hand, the practice of the church must be made more thoroughly to coincide with her theory. A means must be found by which the people could be constrained, so far indeed as that was ever to be realized, to accept the canon law as a guide in the affairs of actual life. This end the church was destined to win by gaining exclusive control of divorce procedure as a part of her general competence in matrimonial causes.

Under the Roman law, as also by that of the Jews, divorce was a private transaction. The intention of the person repudiating his spouse was declared orally[125]before seven witnesses. The state might, indeed, punish the crimes causing the separation or enforce the penalties for unjust action, thus incidentally passing on the legality of the divorce itself; but if the proper forms were observed, the private divorce, whether one-sided or by mutual consent, was valid, and the state gave no action either for enforcing the separation or for the restitution of conjugal life.[126]

The same principle obtains among the German nations after the conversion. Divorce is a private act, and there is[48] no proper divorce process in the temporal courts. Separation by free consent is usually effected merely through exchange of duplicate copies of a written agreement, or libellus repudii;[127] and if sometimes the intention of the parties must be declared before judicial authority, it does not follow that there is any examination of the grounds of action or any judgment admitting or refusing the separation. The “function of the court can have only the purpose of establishing the formal correctness of the act of self-divorce.”[128] In the case of one-sided divorce the same general rule prevails. There may be judicial action; but it is an action to punish the crime of the guilty person or to enforce the penalty for unjust repudiation. “The form of one-sided divorce in the Teutonic folk-laws rests upon the same fundamental principles as that of the leges Romanae. Self-divorce is in equal degree true Roman and true German. In each case justifiable separation may be preceded by a penal action to determine the guilt of the accused. In each case, moreover, it is not the divorce which the sentence directly decrees, but its justification. It still rests with the aggrieved spouse whether he will make use of his right of separation, or whether he will allow a reconciliation to take place.”[129]

The church was ambitious to take the matter of divorce procedure entirely into her own hands; to establish a real jurisdiction which would enable her effectually to forbid separation except on the grounds which she herself approved, and to compel the restitution of married life when separation[49] occurred for any other cause.[130] It was long before this ambition was realized. The council of Agde as early as the year 505 did indeed declare, in effect, that, besides the penal sentence of the temporal court, a recognition of the grounds of divorce by the ecclesiastical authority shall be required for a separation; and whoever puts away his wife without first satisfying these conditions shall be excommunicated.[131] To this decree, so emphatic in its demands, the origin of spiritual jurisdiction in divorce questions is commonly traced;[132] but this seems far from being the truth. The decree must rather be accepted as an early but “isolated” expression of an ideal toward which the church for ages was striving; and as such it became of more and more importance as the great doctors of the canon law found themselves in a position to give it meaning.[133]

Even during the Carolingian era theoretically the state still maintained the old position. The judgment in a penal action neither nullified nor enforced self-divorce. In reality,[50] however, the power of the church in this field was vastly increased at the expense of the state.[134] For the state then undertook as never before to enforce the discipline through which hitherto the church had striven in vain to realize her doctrine.[135] Backed by the state, the church thereafter had the power to compel a restitution of conjugal life when a divorce was attempted against her will—a power which the secular judge had never possessed. Accordingly, “the temporal divorce jurisdiction of the Frankish empire, so far indeed as one is justified in speaking of such a jurisdiction, was not abolished by a legislative act; but it gradually perished through the contradiction to its own laws in which the state of the Carolings involved itself when it made the unqualified support of the disciplinary jurisdiction of the church one of its cardinal principles of government.”[136] Already by the beginning of the tenth century this process[51] was practically complete.[137] In German lands the diocesan court of the bishop had become the ordinary tribunal for divorce causes; and for annulment of the uncanonical separation an exact formula, the oath of reconciliation, had been devised.[138]

A powerful instrument was thus provided for the development and enforcement of a complete system of divorce jurisprudence. Little by little the canonists, in tedious succession from Hincmar of Rheims to the decretalist Tancred,[139] brought order out of confusion and agreement out of contradiction. Through special pleading and violent assumption, unscrupulous twisting and suppressing of texts, earnest argument and childish allegory, the law of divorce was gradually brought into some degree of harmony with the sacramental theory of marriage.[140] The middle of the tenth[52] century saw the task virtually accomplished at the hands of Gratian and Peter Lombard,[141] the master-builders of the canon law;[142] although their teachings are still “on the surface obscured by reminiscences” of earlier theories, and after them the Decretals show certain aberrations from the strict doctrine, like “sporadic cases after a great epidemic.”[143]

Theoretically, as commonly stated, divorce proper is entirely eliminated from the mature law of the western church; but inconsistently the name “divorce” is retained as a rubric in the collections of canons; and it is used in two[53] senses, neither of which corresponds with its ancient and proper meaning as a complete dissolution of the bond of true wedlock. First, the term divortium a vinculo matrimonii is commonly employed to designate, not the dissolution of a lawful union, but the judicial declaration of nullity of a spurious marriage which on account of some impediment is void, or at least voidable, from the beginning. Secondly, the term divortium a mensa et thoro means a judicial separation of husband and wife which does not touch the marriage tie. In each case, therefore, the use of the word “divorce” is loose and very misleading.[144]

As finally settled, the canon law permits a separation from bed and board on three grounds. First is adultery. For this offense the woman as well as the man is given an action for divorce, which, however, may be defeated by pleading various exceptions, such as the like guilt of the accusing party.[145] The second cause is “spiritual adultery,”[146] being historically an enlargement of the first cause through allegorical interpretation. Originally under this head separation was allowed for various offenses;[147] but in the end it is restricted to the heresy or apostasy of one of the persons, and perhaps to the case of one spouse compelling the other to commit a wrong,[148] although on this point the authorities[54] are by no means agreed. A third cause for which separation may be demanded is cruelty committed by one partner against the other. Whether in this case blows alone will suffice, especially as concerns the woman, is not settled by the laws; but the “dominant opinion inclines to leave the determination of this point to the discretion of the judge.”[149]

It thus appears that theological subtlety, partly under stress of the needs of actual life, has found a way to pass far beyond the limits which any reasonable interpretation of the scriptural precepts will permit. In dealing with the question of divorce a vinculo an inconsistency even greater is shown, and the results are far more disastrous; for the door is thereby opened for manifold hardships and corruption. In the first place, two exceptions to the rule that a genuine marriage cannot be dissolved are sanctioned by the law and practice of the Church. The privilegium Paulinum is thus freely admitted.[150] If the Christian convert is abandoned by his infidel spouse, he is allowed to contract a new marriage. Only by an ingenious assumption can this liberty be harmonized with the prevailing dogma. The case is no exception, we are told, for it is the infidel, not the believer, who dissolves the marriage; and the rule of the church does not apply when the unbeliever “renounces his right” to maintain that relation, in order to “make use of his own heathen law.”[151] In England, where the canon law of[55] divorce was in full force, the casus apostoli had a practical application to the advantage of the faithful in their dealings with the Jews. “In 1234 a Jewish widow was refused her dower on the ground that her husband had been converted and that she had refused to adhere to him and be converted with him. An Essex jury even doubted whether if two Jews married under the ‘Lex Judaica’ but afterwards turned to the ‘Lex Christiana’ and then had a son, that son could be legitimate;”[152] but this finding is not in harmony with the teaching of the canon law. Moreover, in modern times, with the spread of Catholic missions into many new lands, this privilege has been of increasing importance.[153]

By the second exception the church found herself entangled in the subtle theory accepted after Peter Lombard that a contract de praesenti constitutes a valid marriage whether followed by actual wedded life or not.[154] The mature doctrine of the canon law, which is still obeyed by the Roman church, permits the unconsummate marriage de praesenti to be dissolved through papal dispensation or ipso facto by taking holy orders.[155] Here in effect the older[56] theory of Gratian, that only the consummate marriage is a real marriage, is adopted for a practical end, although it is absolutely irreconcilable with the still accepted orthodox theory of Lombard, whose enforcement in the ecclesiastical courts has been the cause of so much evil in western Christendom.[156]

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[57] 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]

The marvelous resources of the church in the binding and unbinding of wedlock are strikingly exhibited in the matrimonial adventures of Margaret Tudor, daughter of Henry VII. To enable her to marry King James IV. of Scotland a papal dispensation was requisite, as they were related within the fourth degree. After he was slain at the battle of Flodden (1513), Margaret espoused Archibald Douglas, sixth earl of Angus; and from him in 1527 she obtained by papal authority a divorce “on the desperate[58] plea first brought forward in 1525, that James IV. had lived for three years after Flodden,” and so was alive at the time of her second nuptials.[162] Her next experiment in the spiritual courts was less successful. In vain she tried to rid herself of her third consort, Henry Stuart, on the pretext that her previous cohabitation with her husband’s fourth cousin, the earl of Angus, had created a bar to their marriage through affinity.[163]

Long before this, in the days of Edward II., a satirist describes the “prodigious traffic” in divorces. Any husband having “selver among the clerkes to send” could rid himself of his wife by “bringing her to the constery” or consistory court, with two false witnesses to support his declarations.[164] A case is mentioned by Coke “in which a[59] marriage was pronounced null because the husband had stood god-father to the cousin of his wife.”[165] Before the Reformation the voidance of alleged false wedlock on the ground of pre-contract or forbidden degrees of affinity, spiritual relationship, consanguinity, or on some other canonical pretext, had become an intolerable scandal. “Marriages have been brought into such an uncertainty thereby,” complains a statute of Henry VIII., “that no marriage could be so surely knit or bounden but it should lie in either of the parties’ power … to prove a pre-contract, a kindred and alliance, or a carnal knowledge to defeat the same.”[166]

Nevertheless, the Council of Trent introduced no essential change in the divorce law of the Catholic church.[167] A vain attempt was made to remedy the evils arising in the confusion of terms.[168] Anathema was pronounced against[60] those who should deny the indissolubility of wedlock as a necessary consequence of its sacramental nature; and a like curse was fulminated against any who shall dare to say that the church errs in allowing divorce quoad torum et cohabitationem, temporarily or perpetually, for any cause besides unfaithfulness.[169] But neither at the council nor since has there ever been made any essential change in the law relating to the papal power of dispensation.[170]

II. THE PROTESTANT DOCTRINE OF DIVORCE

aOpinions of Luther and the continental reformers.—With the rejection of the sacramental theory of marriage at the Reformation it was inevitable that more liberal ideas respecting divorce should arise. The mother-church was accused of fostering vice by professing a doctrine too severe;[171] while at the same time she was bitterly reproached with a scandalous abuse of her own jurisdiction through which in[61] effect the forbidden degrees had become an open door to divorce for the use of the rich and powerful. Accordingly, the leaders of Protestantism took intermediate ground. On the one hand, while Luther and some other reformers sanctioned temporary separations[172] of husband and wife, there was a strong tendency to reject entirely perpetual divorce a mensa et thoro as being a “relatively modern invention” unknown to the ancient church; and a condition of life incompatible with the true ideal of wedlock.[173] On the other hand, they generally favored complete divorce a vinculo, admitting two or more grounds according as they interpreted strictly or more liberally the scriptural texts. For they still appealed to authority rather than to reason and experience in their attempts to solve a great social problem. They were thus often sorely embarrassed. Their writings, indeed, reveal not a little of the casuistry and self-deception which so often vitiate the reasoning of the canonists and their predecessors.[174]

From the outset the continental reformers took a bold stand;[175] for the Protestant doctrine of divorce, like the Protestant conception of the form and nature of marriage, was shaped mainly by the thought of Martin Luther. Yet revolutionary as were his teachings, he did not go so far in his departure from the orthodox rule as did some of his contemporaries and successors. The analysis of Richter has disclosed two distinct tendencies in the doctrine and practice[62] of the Reformation period.[176] In the sixteenth century the more rigid or conservative direction is taken by Luther and the more influential Protestant leaders, among whom are the theologians Brenz, Bugenhagen, Chemnitz, Calvin, and Beza, with the jurists Kling, Beust, and Schneidewin.[177] All are agreed that absolute divorce should be granted for adultery, although some of them, like Chemnitz, appear to discriminate against the woman in this regard.[178] Malicious desertion is also generally admitted as a second cause for the full dissolution of wedlock, following the same Bible text which gave rise to the casus apostoli of the canonists.[179] It is characteristic of Luther and the representatives of the more rigid tendency that, rather than multiply the number of admissible grounds of divorce, an effort was made by hard logic to broaden the definition of desertion so as to give to it a wide range without seeming to transgress the letter of scriptural[63] authority.[180] In this way, for instance, saevitia, or cruelty, was included, as was also refusal of conjugal duty, eventually giving rise to the doctrine of “quasi-desertion.” But for this last cause a marriage must not be dissolved except on failure of all prescribed means, however cruel, to induce reconciliation or submission. For it was a natural result of the carnal theory of wedlock that theological dogma and church ordinance alike in effect permitted a brutal husband, through the aid of fine, exile, or imprisonment, to force an unwilling wife to render him her “conjugal duty.”[181]

Only two general causes of full divorce on alleged scriptural authority were thus admitted by Luther and his immediate followers. Other offenses, except as by logical fiction brought under the definition of desertion or adultery, were merely accepted as grounds of temporary separation[64] from bed and board, subject to reconciliation.[182] On the other hand, the representatives of the more liberal tendency anticipated in many ways modern ideas as to the grounds of absolute dissolution of the marriage bond. Avoiding to some extent the indirect method of attaining practical ends by juggling with definitions, they were inclined to appeal for authority directly to Roman imperial legislation; and so, “since the other direction is connected with the canon law, we have here a phase of the struggle” between that system and the Roman jurisprudence.[183] The first step in the liberal direction is taken by Erasmus, who sustains a rational method of dealing with the divorce problem through appeal to the teachings of the early Fathers, notably those of Origen; and this brought him in contact with the principles of the old Roman law.[184] His influence, as Richter strongly urges, seems to have been felt by Zwingli, who, with his disciple Bullinger, argues that in admitting adultery as a cause of divorce the Scriptures sanction as such all equal or graver offenses.[185] Accordingly, in the Zurich marriage ordinance of 1525, “adultery, malicious desertion, and plotting against the life of a consort are not regarded as[65] the only causes, but rather as the standard causes of divorce, and to the judge it is left to decide what others shall be put by their side. And not only this, but cruelty, madness, leprosy, are mentioned as causes which the judge can take into account.”[186] Lambert of Avignon is likewise conspicuous for liberal ideas regarding the causes of divorce. Anticipating the principle so often enforced by modern legislation, he holds that when a wife is forced by intolerable suffering to leave the husband who mistreats her and denies her proper support, this should be counted as repudiation by the man, and not as desertion by the woman, who should therefore be allowed to contract another marriage.[187] Similar views are held by Bucer,[188] Melanchthon,[189] and the jurist Monner.[190] All accept the two general causes, and each admits several other grounds.

With no exception in case of divorce, the continental reformers appear to sanction the remarriage of the innocent man or woman without any delay or other condition.[191] The[66] earliest church ordinances confer the same privilege;[192] but regarding the question whether an adulterous spouse should be suffered to contract further wedlock the Protestant leaders are not agreed. The majority would have the magistrate deal with the offender according to the harsh principle of the Jewish law. Such is the view of Bugenhagen, who opens his discussion with the curt remark that were the adulterer hanged there would be small need of further parley.[193]Lambert of Avignon insists that the culprit ought to be stoned, warning the sluggish magistrates that they themselves perish even because they do not administer this punishment.[194] Beust, on the contrary, prides himself that in the land of the Saxons there is no flinching in this regard, and so the divorce question in that country is solved. Beza and Brenz are both eager for the death penalty.[195] Melanchthon appears to favor the same treatment, or else exile of the guilty spouse in case the political magistrate is unwilling to proceed with such rigor; for he says the “condemned is as one dead” to his innocent spouse.[196][67] Similar is the position of Luther, who “insists with great energy that death ought to be the penalty for adultery, but since the civil rulers are slack and indulgent in this respect, he would permit the criminal, if he must live, to go away to some remote place and there marry again. So Calvin, in several places, declares that death ought to be inflicted for this crime, as it was by the Mosaic code, but if the law of the territory stop short of this righteous penalty, the smallest evil is to grant liberty of remarriage in such cases.”[197]

Thus far we have dealt with doctrine and opinion as disclosed by the legal and theological writings of the century of Luther. The legislation of this period reveals a like difference of view regarding the grounds of divorce and the privilege of remarriage; although the majority of the church ordinances contained in the collection of Richter appear to follow the more rigid direction.[198] Usually the two general causes, adultery and desertion, are allowed; but in a few instances only the first-named ground is admitted.[199] On the other hand, as Goeschen has pointed out,[200] the number of causes is sometimes increased, either by adding new grounds,[201] by appeal to common imperial law,[202] or by leaving the decision[68] to the judge’s discretion.[203] Furthermore, during the seventeenth century, under influence of such writers as Bidembach and Mentzer,[204] divorce legislation follows the conservative lines laid down in the Würtemberg ordinances of 1534 and 1553.[205] The beginning of a new and more liberal treatment of the subject is first seen in the Würtemberg ordinance of 1687, which, besides adultery, desertion, and quasi-desertion, sanctions several other grounds of absolute divorce.[206] This change in the tone of the law-maker is mainly due to the rise of more generous doctrinal views, especially those of Hülsemann, who taught that marriage is dissolved by every offense which, like adultery and desertion, destroys the physical unity of the wedded pair or violates the conjugal troth constituting the safeguard of that unity.[207]

The acceptance of Luther’s teaching that marriage is not a sacrament, but a “worldly thing,” led at once to the rejection of the jurisdiction of the existing ecclesiastical courts. A dual problem thus arose for solution: Is marriage dissolved ipso facto through the commission of the offenses recognized as grounds of divorce; or, if any intervention of public authority is requisite, what is that authority, and what[69] is its exact function? The researches of Stölzel have clearly established that in the beginning the reformers returned to the principle of self-divorce prevailing among the ancient Romans and Hebrews, and accepted by some of the early church councils. According to the modern conception, he declares, a marriage may normally be dissolved during the lifetime of the parties by the sentence of a judge in a legally constituted court after due process of law. Only in exceptional cases is a resort to a political magistrate allowed. The judicial decree is the medium of the dissolution; and it implies, without express permission, the right of each of the divorced persons to remarry, unless the statute has otherwise provided. The divorce law of the Reformation starts from a different, almost an opposite, conception. When an adequate cause exists, a marriage is thereby dissolved in favor of the innocent person without any magisterial authority whatsoever. If in certain cases, in order to establish the existence of the grounds of dissolution, any action is needful, it is regarded as extra-judicial; and when gradually such informal proceedings have grown into an orderly process dealing directly with the question of divorce, this process concludes with a decree; not that the marriage is thereby dissolved, but that it has already been dissolved in consequence of the grounds now established. Nor did the divorce of itself involve the right of remarriage. That privilege was always in practice, if not in theory, denied to the guilty spouse; and after a regular process arose it was usual, even as late as the eighteenth century, to grant it to the innocent person only by special magisterial permission or “toleramus.”[208] From the beginning in some German lands the only purpose of the judicial action was to determine the fact that the marriage was already dissolved in order to justify this license.[209][70] Luther and other Protestant leaders accepted the theory just explained that a marriage is “broken” or dissolved when a proper cause intervenes; and if without exception[210] they insisted that the married persons should not separate themselves, but appeal to public authority, they had in mind, as Luther plainly shows, the establishment of the fact of wedlock already broken in order, where it was desired, to grant the permission of marrying again.[211]

The seeds from which would eventually spring a new public jurisdiction in matrimonial causes were nevertheless in this way planted by Luther. For a time the practice was uncertain and informal. Cases were taken before various officials or bodies, with the prince or sovereign as final authority. The Pfarrer or parish priest, who is especially commended by Luther[212] for such business, was often called in; and on hard questions opinions were solicited from jurists and theologians, those of Luther having all the weight of the decisions of a court of last resort. As a result, during this early period jurisdiction came more and more into the hands of the church. Only gradually, following the example of Wittenberg in 1539, were consistorial courts[213] created under[71] sanction of the civil power; and these bodies were composed of both lay and ecclesiastical members.[214]

A true idea of the position of German Protestantism regarding the divorce problem cannot be obtained merely from an examination of its doctrines or its legislation. These were supplemented in several ways. Their severity regarding the grounds of separation can only be appreciated at its real value by keeping in mind, as already suggested, that the sword of the judge often cut the marriage tie on account of adultery or other crimes; and that some of the reformers, notably Luther, Brenz, and Melanchthon, were inclined in certain cases to tolerate concubinage or even bigamy, in preference to full divorce.[215] But it is especially noteworthy that the judicial decisions in divorce suits, whether consisting in the opinions of the learned or the decrees of the magistrates or consistories, were in general somewhat more liberal and more practical than either the ordinances or the dogmas of the church.[216]

bOpinions of the English reformers.—The Fathers of English Protestantism as a body are more conservative than their brethren across the channel.[217] By the chiefs of[72] the really reforming or Puritan party among them, however, ideas scarcely less bold than those of Luther or Calvin are advanced. The same arguments are used and the same causes of separation are admitted. But these ideas ultimately find no place in the canons of the established church. Under Edward VI. the leaders of the Protestant movement defend their position. “Strongly disapproving the excessive liberty of divorce which the ecclesiastical tribunals had for generations afforded to society, they were not less unanimous in condemning the doctrine of the absolute indissolubility of wedlock. If it was wrong on the one hand to allow husbands and wives the liberty of separating on frivolous pretexts, and to provide the fortress of marriage with numerous gates of egress, whose double locks obeyed the pass-keys of perjury and corruption; it was on the other hand no less hurtful to society and impious to God to constrain a pair of human creatures in the name of religion, to persevere in an association, that could not accomplish the highest purposes of matrimony, and debarred the ill-assorted couple from the serene and wholesome pleasures of Christian life.”[218]

The average sentiment of the age is quaintly expressed in Bullinger’s The Christen State of Matrimonye, translated by Bishop Miles Coverdale in 1541. “That is called iuste diuorce, when as nether partye maye take the tother agene, so it is in the lybertye of the fawtlesse partye to mary another.” Such a “divorce is permitted of god for the welth and medicine of man and for amendment in wedlok. And like as all maner of medicynes and specially some as they that go nyest death as to cut of whole membres … are very terrible. So is divorce indede a medicyne, but a perilous and pitefull…. The papistes haue forbydden the innocent and vnguiltye parte to marye after the diuorce[73] made: Which yt was no thinge els but euen violently to cast a snare about poore peoples neckes, and to drawe them vnto vyce and synne. For the diuorced coulde not refrayne, and mary they were not permitted, therfore with violence were they forced into whordome.”[219]

The favorite metaphor of the reformers is also employed by Master Henry Smith. In his Preparation to Marriage, written in the reign of Elizabeth, divorce is described as the “rod of mariage” and the “medicine of adultery.” If duty be done, he says, “then I need not speake of divorcement, which is the rod of mariage and divideth them which were one flesh, as if the bodie and soul were parted asunder. But because all performe not their wedlocke vowes, therefore He which appointed mariage hath appointed divorcement, as it were, taking a privilege from us when we abuse it. As God hath ordained remedies for every disease, so He hath ordained a remedie for the disease of mariage. The disease of marriage is adultery, and the medicine thereof is divorcement.”[220]

Nearly all the English reformers of the sixteenth century agree in rejecting separation from bed and board as a “papist” innovation; and they are equally unanimous in allowing the man for unfaithfulness to put away his wife and contract another marriage.[221] Prevailing opinion appears also to have accorded the same privilege to the woman on like provocation; but there were undoubtedly some in the Protestant ranks who were not so liberal in her behalf. In particular this seems to be the correct inference to be drawn from the antagonism and excitement caused by the bold[74] position of Hooper,[222] who won a perilous distinction through his sensible demand for even justice to the sexes in this regard.[223] According to the common view, malicious desertion on the part of either spouse is a second scriptural ground for the complete dissolution of wedlock. The singular logic through which the words of Paul are made to sustain this distinctively Protestant doctrine may be illustrated by a typical example. “But to our purpose,” exclaims Tyndale, “what if a man run from his wife and leave her desolate? Verily, the rulers ought to make a law, if any do so and come not again by a certain day, as within the space of a year or so, that then he be banished the country; and if he come again, to come on his head, and let the wife be free to marry when she will.” But how is this liberty to be reconciled with the words of Paul who allows a brother or sister a divorce when deserted by an unbelieving spouse? Easily; for elsewhere “he saith, ‘If there be any man that provideth not for his, and namely for them of his own household, the same denieth the faith, and is worse than an infidel.’ And even so is this man much worse to be interpreted for an infidel, that causeless runneth from his wife.”[224]

[75]

Far more daring than any of the English writers before Milton is Martin Bucer, of Strassburg, whose doctrines of divorce comprised in the book dedicated to Edward VI. are almost as bold as those of Zwingli. According to this famous theologian, for two years professor at Cambridge, and greatly venerated by his contemporaries, divorce is a divine institution; and it ought to be granted not merely for unfaithfulness and desertion, but for many other reasons as well. It is curious, but thoroughly in keeping with the mental habits of his age, to see how he persuaded himself that the causes of divorce sanctioned by the decrees of the “pious emperors” from Constantine to Justinian are not “contrary to the word of God;” may therefore “be recalled into use by any Christian prince or commonwealth;” and are thus “by divine approbation” valid among Christians at the present hour.[225] Usually in his treatise he advocates equal liberty of[76] divorce for both consorts; but, in contradiction to the spirit of his own teaching, in one chapter he sets forth a doctrine which would place the wife absolutely at the mercy of a licentious or despotic lord. A passage from the prophet Malachi Bucer renders: “‘Take heed to your spirit, and let none deal injuriously against the wife of his youth. If he hate, let him put away, saith the Lord God of Israel. And he shall hide thy violence with his garment’—that marries her divorced by thee.”[226] On this authority he concludes that “by these testimonies of the divine law … the Lord did not only permit, but also expressly and earnestly commanded his people, by whom he would that all holiness and faith of marriage covenant should be observed, that he who could not induce his mind to love his wife with a true conjugal love, might dismiss her, that she might marry to another.”[227] Verily this is naïve morality. Such singular care for the wife’s happiness finds scarcely a parallel, unless indeed it be in the ethics of John Milton, to which we must presently recur.

But positive evidence of the views of the Reformation Fathers has been preserved for the time of Edward VI. Under Henry VIII. the principles of the canon law touching divorce remained in full force, except that by restricting the number of forbidden degrees to those recognized by the Levitical code, and through the abolition of pre-contracts, the chances for escaping the ties of marriage by crooked[77] ways were somewhat lessened.[228] The restoration of pre-contracts[229] under Edward VI., however, caused the reformers to fear lest the old evils growing out of clandestine unions and nullification of false wedlock on the pretext of previoussponsalia de praesenti would also be revived; and this quickened their desire for a formal settlement of the law of divorce in harmony with the altered views of the English church. Accordingly, an act of Parliament authorized the appointment of a commission of thirty-two persons to prepare a “complete code of ecclesiastical laws.”[230] The commission selected in pursuance of this statute comprised the most learned divines and lawyers of the Protestant party. Their task was well performed; and their report, drafted mainly by Cranmer and translated into Latin by Dr. Haddon and Sir John Cheke, was submitted in 1552 under the title of Reformatio Legum Ecclesiasticarum.[231]

This code, though it was never put in force, perhaps in consequence of the king’s death, is regarded as a faithful index of Protestant opinion. Before referring to its treatment[78] of the question of divorce, some of its general provisions may be mentioned. These often show the strong common-sense and lofty moral purpose of its framers. The consent of the parent or guardian is made necessary to a valid marriage. Children whose reasonable desires in matrimony are hindered by the caprice or unkindness of those having authority over them are granted the right of appeal to the ecclesiastical magistrate, who may give redress. Aged women are advised to forbear from wedlock with young men. A marriage secured through fear or violence is rendered void. An attempt is also made through severe penalties to check those crimes against women which, as elsewhere shown, were first effectively dealt with during the Puritan Commonwealth.[232] “They ordered that the betrayer of a virgin should be excommunicated until he had married his victim, if it was in his power to wed her; or until he had assigned to her a third of his property, or made some other sufficient arrangement for the support of her offspring,” if on account of legal impediment he could not make her his wife.[233]

Hereafter, according to the report, spiritual affinity is not to count as an impediment to matrimony. Separation a mensa et thoro is not recognized; but complete divorce a vinculo matrimonii is granted “in cases of extreme conjugal faithlessness; in case of conjugal desertion or cruelty; in cases where a husband, not guilty of deserting his wife, had been for several years absent from her,” provided there be reason to believe him dead; “and in cases of such violent hatred as rendered it in the highest degree improbable that the husband and wife would survive their animosities and again love one another;”[234] but separation is not permitted[79] for frequent, though not incessant or vehement, quarrels.[235] Divorce is denied where both partners are guilty of unfaithfulness; and when one is guilty, only the innocent spouse is permitted to contract another marriage. Self-divorce is forbidden. In all cases it is the province of the ecclesiastical court to determine whether there exists a just cause for separation.[236] Finally, it may be noted that adultery as a crime is severely dealt with, though the commissioners do not go to the length of prescribing capital punishment, as some of the English reformers would have desired. The guilty husband, if a layman, shall “restore to his injured wife whatever possessions she had brought him, and also surrender to her one-half of all his other property. He was, moreover, sentenced to exile or imprisonment for life. Convicted of the same offence, the wife lost her dower and all interest in her husband’s property, and was consigned to life-long imprisonment or banishment.” For this crime and similar offenses “clerical delinquents” are treated with even greater severity.[237]

The report prepared by the commission never received the sanction of the king; nor does it appear that any authoritative change in the canon law relating to divorce was ever made until the present century. Nevertheless the Reformatio Legum “is a work of great authority, showing the recognized opinion and sentiment of the church of England at that time and containing the views of the first reformers.”[238] The principle represented by it was carried out in practice, though it may well be doubted whether, as is sometimes urged,[239] the[80] decrees of the ecclesiastical court ever went so far as expressly to grant dissolution of wedlock. According to the ancient form of judgment, divorce was probably still pronounced only a mensa et thoro; but, whatever the shape of the decrees, there is strong evidence that from about 1548 to 1602, except for the short period of Mary’s reign, “the community, in cases of adultery, relied upon them as justifying a second act of matrimony.”[240] For already in 1548—four years before Edward’s commission had completed its report—the new doctrine had been in a measure sustained by the well-known case of Lord Northampton, brother of Queen Catherine Parr. After obtaining a decision of an ecclesiastical court separating him from his wife, Anne Bourchier, the marquis had contracted another union with Elizabeth Brooke, daughter of Lord Cobham. Subsequently a commission of delegates, headed by the archbishop of Canterbury, declared the second marriage valid, “because the former contract had been absolutely destroyed” by Anne Bourchier’s infidelity;[241] and in 1552 this decision was confirmed by an act of Parliament[242] which declares the marriage valid “by the law of God,—any decretal, canon ecclesiastical, law, or usage to the contrary notwithstanding.”[243]

 

[81]

This is, indeed, convincing evidence of the changed opinion of the English church. Nor can it be questioned that throughout nearly the whole of Elizabeth’s reign popular practice was in harmony with the doctrine thus proclaimed.[244] New marriages were freely contracted after obtaining divorce from unfaithful partners.[245]Clear evidence of this fact is afforded by Bunny, himself strongly opposed to the liberal tendency.[246] As a matter of fact, popular custom, sustained by the profound sentiment of the Reformed clergy, was fast ripening into a law as valid as any which a legislature could enact. Such a tendency, however, could not fail to become more and more obnoxious to many of the leaders of the established clergy, as Elizabeth’s reign progressed. Archbishop Whitgift defends the ancient divorce jurisdiction of the spiritual courts against Cartwright,[247] and the Puritan party is treated with ever-increasing rigor. Still the reactionary canons passed by the Chamber of Convocation in[82] 1597, doubtless designed to check what was already looked upon as a dangerous abuse, bear witness to its continued existence; if indeed by implication, as is powerfully argued, they do not directly sanction the dissolution of marriage through divorce.[248]

Similar testimony is afforded by the celebrated Foljambe case in 1602, when a court sitting in the Star Chamber incidentally pronounced invalid a marriage which had been contracted after separation from bed and board by decree of an ecclesiastical judge; and this decision follows the advice of a council of the “most sage divines and civilians assembled by Archbishop Whitgift at Lambeth, declaring in harmony with the ancient law that remarriage after judicial separation is null and void.”[249]

[83]

Strictly speaking, it may not be correct to say, as is commonly done by law writers, that the Foljambe case marks a change in the law of divorce by requiring a return to the doctrine of the ancient church; but from it, at any rate, two important inferences may be drawn. On the one hand, it shows that the custom of remarriage after separation a mensa et thoro was continued to the very end of Elizabeth’s reign. On the other hand, it constitutes a stage in the development of a more conservative policy. As such it may have had something to do with the legislation of about a year later. By royal authority in 1603 the canons of 1597 were re-enacted “word for word,” and consequently, as already suggested, they incidentally bear witness to the Reformation theory and practice as to divorce and remarriage, while seeming to admit the possibility of a valid dissolution of wedlock by judicial decree.[250] For the first time in English history a statute of 1604 makes bigamy[251] in the modern sense[84] a felony punishable with death; but there are exceptions to the operation of the act which tell strongly in favor of the view that the custom of remarriage after judicial separation had been something more than tolerated. It is expressly provided that the penalty fixed by the act shall not extend to a man or woman who has contracted a new marriage after seven years’ desertion; nor to “any person or persons that are or shall be at the time of such marriage divorced by any sentence had or hereafter to be had in the ecclesiastical court.”[252] Here it is clear that dissolution of wedlock by[85] sentence of nullity is not intended; for this is provided for by another exception in the act itself. It is equally clear that all cases of divorce by judicial decree are comprehended, whatever the cause of separation assigned. The law as then interpreted seems to have remained unchallenged until 1637, when in Porter’s case the court of King’s Bench, without squarely deciding the point, expressed a doubt whether a woman remarrying after divorce for cruelty was exempt from punishment under the proviso of King James’s statute; because, “if this should be suffered, many would be divorced upon such pretence, and instantly marry again, whereby many inconveniences would arise. Whereupon she was advised not to insist upon the law, but to procure a pardon to avoid the danger; for it was clearly agreed by all the civilians and others, that the second marriage was unlawful.”[253] Nevertheless, the hesitation of the court does not appear to be justified either by the plain words of the act or by the weight of legal authority.[254]

III. LAW AND THEORY DURING THREE CENTURIES

aThe views of Milton.—With the opening of the Stuart era, therefore, a reactionary policy with respect to divorce was established. For two centuries and a half thereafter the principles of the ancient canon law were administered by the English spiritual courts. In fact, it was now more difficult than before the Reformation to escape the marriage[86] tie;[255] for the papal dispensation could grant no relief, and in consequence of the decrease in the number of restraints to a valid marriage, the decree of nullity was not so often a convenient subterfuge. Only the rich or noble were able to afford the costly remedy of a special act of Parliament to cure their matrimonial ills. Hence it is not a little surprising that the Puritan Revolution brought with it no change in this regard. One would naturally expect the Independents under Cromwell’s leadership, by whom the remarkable civil-marriage law of 1653 was conceived, to relegate the whole matter of divorce and nullity to the temporal courts under proper legal conditions; yet there seems to be no record of such a course.

But if the Puritan statute-book was silent, Puritan thought produced the boldest defense 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 defense which can be made through an appeal to mere authority. For, in spite of their casuistry, their inconsistencies, and their injustice to woman, the writings of John Milton may be said to have about exhausted the resources of theological argument and the learning of his age on this subject.[256] He goes farther than Zwingli, Bucer, or any other reformer in admitting grounds for the absolute dissolution of marriage. According to Milton, divorce is a “law[87] of moral equity,” a “pure moral economical law … so clear in nature and reason, that it was left to a man’s own arbitrement to be determined between God and his own conscience;” and “the restraint whereof, who is not too thick-sighted, may see how hurtful and distractive it is to the house, the church, and the commonwealth.”[257] It is lawful to Christians “for many other causes equal to adultery,” such as cruelty, idolatry, and “headstrong behaviour” on the part of the woman, as also for desertion.[258] For “what are these two cases [adultery and desertion] to many other, which afflict the state of marriage as bad, and yet find no redress?” Hence he spurns a narrow construction as contrary to reason. “What hath the soul of man deserved, if it be in the way of salvation, that it should be mortgaged thus, and may not redeem itself according to conscience out of the hands of such ignorant and slothful teachers as these, who are neither able nor mindful to give due tendance to that precious cure which they rashly undertake; nor have in them the noble goodness, to consider these distresses and accidents of man’s life, but are bent rather to fill their mouths with tithe and oblation?”[259] Nor is this the only time when Milton speaks the language of the modern social reformer, though sometimes his strongest arguments from the standpoint of reason are ill sustained by the authority upon which he relies. From the law of Moses, with which he insists that the law of Jesus must agree, he thus reaches the conclusion that just ground of 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[88] peace.”[260] To this ideal of the true end of wedlock he returns again and again. Rejecting the gross and carnal conception of the Fathers and canonists, their glaring contradiction between marriage as a “defilement” and a sacrament,[261] he urges that matrimony is a society “more than human,” centering “in the soul rather than in the body;” a companionship resting upon the “deep and serious verity” of “mutual love,” without which wedlock is “nothing but the empty husks of an outside matrimony, as undelightful and unpleasing to God as any other kind of hypocrisy.”[262] Hence, where such society does not exist, where mutual affection has given place to deceit, the legal bond of the sham wedlock ought to be dissolved.

Unfortunately, there is another and less pleasing aspect of Milton’s teaching. Beyond question saturated as he is in the sentiments of the Hebrew law, Milton has a very low ideal of womanhood. Almost invariably it is the husband’s grievances which excite his compassion. Scarcely by implication does he ever admit that the wife may initiate proceedings, private or public, to rid herself of an unwelcome spouse. It is not quite clear whether he would allow her to put away even the unfaithful husband against his will;[263] while repudiation for lack of sympathy, for “loneliness,” on account of[89] failure to realize that comfort and full spiritual society upon which he so fondly dwells, is apparently the sole privilege of the man. In his opinion the man is emphatically the head of the woman, who was created by God expressly “to comfort and refresh him against the evil of solitary life.”[264] No disciple of Hillel was ever more thoroughly persuaded that mere dislike is adequate cause for putting away a wife at the sole command of the husband than was he. “No libertine, for the sake of wickedness and gratification of low desire, ever demanded greater license in marriage than Milton in the name of religion demanded for Christian men, in order that they might find meet-helps, and escape the grievances of uncongenial wedlock,” though doubtless his sole aim was the attainment of domestic purity and happiness.[265]

 

That this judgment is scarcely too severe is clearly proved by Milton’s theory of proper divorce procedure.[266] Rejecting all aid of court or magistrate, he goes back to the[90] ancient principle of self-divorce.[267] For it was an “act of papal encroachment” to “pluck the power and arbitrement of divorce from the master of the family, into whose hands God and the law of all nations had put it, and Christ so left it, preaching only to the conscience, and not authorizing a judicial court to toss about and divulge the unaccountable and secret reason of disaffection between man and wife, as a thing most improperly answerable to any such kind of trial.” For the sake of “revenue and high authority” the “popes of Rome” have “subjected that ancient and naturally domestic prerogative to an external and unbefitting judicature.” Differences “in divorce about dowries, jointures, and the like, besides the punishing of adultery,” ought indeed to be referred to the magistrate; yet “against the will and consent of both parties, or of the husband alone,” the “absolute and final hindering of divorce” cannot rightly “belong to any civil or earthly power.” For “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.” Among such “deep and serious regresses of nature” is hate, “of all things the mightiest divider.” Moreover, the lord of the family cannot go wrong in acting from such motive; “for although a man may often be unjust in seeking that which he loves, yet he can never be unjust or blamable in retiring from his endless trouble and distaste, whenas his tarrying can redound to no true content on either side.”[268] All this despotic power is placed[91] in the husband’s hands for the woman’s good; for it is “an unseemly affront to the sequestered and veiled modesty of that sex, to have her unpleasingness and other concealments bandied up and down, and aggravated in open court by those hired masters of tongue-fence…. It is true an adulteress cannot be shamed enough by any public proceeding; but the woman whose honour is not appeached is less injured by a silent dimission, being otherwise not illiberally dealt with, than to endure a clamouring debate of utterless things.” Whether it would be well to shame the adulterer by publicity we are not informed. Power would thus be restored to the “master of the family,” where it was divinely placed. For its exercise there is but one condition needful among Christian men. The repudiation should take place in “the presence of the minister and other grave selected elders.” These are to “admonish” him; and he in turn is to declare solemnly by “the hope he has of happy resurrection, that otherwise than thus he cannot do, and thinks himself and this his case not contained in that prohibition of divorce which Christ pronounced, the matter not being of malice, but nature, and so not capable of reconciling.” He must not be restrained further. To do so “were to unchristian him, to unman him, to throw the whole mountain of Sinai upon him, with the weight of the whole law to boot, flat against the liberty and essence of the gospel.” The procedure thus provided for by Milton, remarks Jeaffreson, is a “strictly private trial in which the husband discharged the function of prosecutor, furnished the evidence, and played the part of a judge.” But Milton is conscious that the denial of a reciprocal liberty to the wife may require some defense. This he supplies by a singular piece of logic, which in its effect would sanction and encourage the basest tyranny for even the vilest purposes, though he does not appear to see it.[269] “The law can only appoint the just[92] and equal conditions of divorce,” he declares, “and is to look how it is an injury to the divorced,” that is to say, to the repudiated wife. But in truth, he hastens to add, “as a mere separation” it can be no injury to her; “for if she consent, wherein has the law to right her? or consent not, then is it either just, and so deserved; or if unjust, such in all likelihood was the divorcer: and to part from an unjust man is a happiness and no injury to be lamented. But suppose it be an injury, the law is not able to amend it, unless she think it other than a miserable redress, to return back from whence she was expelled, or but entreated to be gone;” or else, if not formally separated, “to live apart still married without marriage, a married widow.” The circular argument is thus complete. “The poet, whose Adam prayed the Almighty to give him an equal inferior for his companion in the happy garden, does not appear to have conceived it possible for a woman in her right mind to wish to put away her lord and master.”[270]

bVoid and voidable contracts.—It is a striking illustration of the completeness with which in social questions the English mind was dominated by theological modes of thought that no change in the law of divorce was effected until the present century. Yet there was crying need of reform. The rigid tightening of the bonds of wedlock seems to have produced its natural fruit. Immorality grew apace.[271] The lot of the married woman became harder even than before the Reformation. To the anomalies of the mediæval system, some of which survived, were added others not less harmful. Chief among them were those arising in the dualism, amounting sometimes to antagonism, subsisting[93] between the civil and the spiritual law. Theoretically, of course, the temporal judge had no divorce competence at all. Still where dower or inheritance was involved a policy had to be defined. “Ultimately the common lawyers came to the doctrine that while the divorce a vinculo matrimonii did, the divorce a mensa et toro did not deprive the widow of dower, even though she was the guilty person.”[272] Such was the law onward from the days of Edward III.[273] Earlier, according to Glanville, and apparently also according to Bracton, the woman “divorced for her misconduct can claim no dower;”[274] and even at a time when she was not deprived of dower through the fact of divorce, she might have the right to claim it taken away as a punishment for her crime, if she “eloped and abode” with her paramour.[275]

Especially disastrous in its effects was the absurd distinction, maintained after as well as before the Reformation, between void and voidable marriages.[276] This had its origin[94] in the canonical doctrine of “putative” wedlock.[277] A union unlawful on account of some diriment impediment, such as affinity or consanguinity, was held not to be ipso facto void, but only voidable, if it had been solemnized with the proper rites of the church; and the temporal courts assumed the validity of all such marriages until they were declared null by an ecclesiastical decree. The happiness of an innocent family was thus put in jeopardy. At any moment a fatal flaw in the union might be discovered or for money invented, when pro salute animarum a separation of the parties would be enforced. In that case the canonists declared that the issue should not suffer. If one or both of the parents were ignorant of the impediment at the time the children were born, these were held to be legitimate. This rule was adopted by the secular courts in determining questions of inheritance. “As late as 1337 English lawyers still maintained that the issue of a de facto marriage, which was invalid because of the consanguinity of the parties, were not bastards if born before divorce.[278] Later, however, they developed a different doctrine which was enforced after the Reformation. Taking “no heed of good or bad faith,” the temporal law even in Protestant times made the “legitimacy of the children depend on the fact that their parents while living were never divorced.”[279] The persons separated for spurious wedlock were permitted to contract new marriages; but in that event they were exposed to one of the innumerable hardships caused by the fine-spun theories of the canonists. The “validity of the first marriage was always an[95] open question, and new evidence might at any time reverse the decree. In this case the second marriage would be a nullity and the first would recover its obligatory force, so that now two separations, it might be, would be demanded by canonical law.”[280] But from the reign of James I., through intercession of the temporal courts, the action for voidance of false wedlock had to be brought during the joint lives of the consorts.[281] After the death of either spouse the spiritual judge was prevented from issuing a decree. For all practical purposes the spurious marriage then became a valid marriage, and the unlawful issue became legitimate;[282] though, absurdly enough, the surviving consort might be punished for the sin of wedding within the forbidden degrees.[283]

Such remained the state of the law until the appearance of Lord Lyndhurst’s act in 1835.[284] This statute declares, because “it is unreasonable that the state and condition of the children of marriages between persons within the prohibited[96] degrees of affinity should remain unsettled during so long a period” as the joint lives of the parents, therefore “all marriages which may hereafter be celebrated between persons within the prohibited degrees of consanguinity or affinity” ought to “be ipso facto void, and not merely voidable;” and accordingly it is so enacted. With respect to existing unions of this kind a distinction is made between “affinity” and “consanguinity.” Marriages within the forbidden degrees of affinity already celebrated may not “hereafter be annulled for that cause by any sentence of the ecclesiastical court,” unless pronounced in a pending suit; while existing marriages within the prohibited degrees of consanguinity are not so exempt.[285] Voidable wedlock in the sense here employed[286] thus disappears from the English law, except in those minor cases where “canonical” impediments are still recognized.[287]

Lord Lyndhurst’s act was especially designed to put an end to marriage with a deceased wife’s sister.[288] Such unions, clearly unlawful, appear to have become very common since the age of the Stuarts.[289] For where no property or other[97] interests were at stake a man’s marriage with his sister-in-law was likely to go unchallenged until the death of husband or wife made it perfectly valid. Doubtless in such cases, through delay in “collusive suits,” greedy relatives may sometimes have been prevented from securing estates which by natural justice, if not by law, belonged to the children or other heirs; for “no fresh proceedings could be initiated so long as any suit of a similar kind was pending.”[290] But the avowed purpose of the act is its best justification, if the times were not ripe for a more liberal remedy. If this class of marriages could not be legalized in harmony with the practice of most other civilized peoples, it was perhaps well in this way to make an attempt to relieve their innocent offspring from the uncertainty which “hung over them sometimes for years like a sword of Damocles.”[291] The attempt, however, did not prove successful. “In 1847 a Royal Commission was appointed to inquire into the state and operation of the law of marriage as relating to the prohibited degrees of affinity. In their report the commissioners state that of marriages within the prohibited degrees by far the most frequent class was that of marriage of a widower with a sister of his deceased wife, so that in fact it formed the most important consideration in the whole subject; and that as these so-called marriages will take place, especially among the middle and poorer classes, when a concurrence of circumstances gives rise to mutual attachment, the commissioners were of opinion” that Lord Lyndhurst’s act “had failed to attain its object.” They furthermore declare, even at this early date, that such unions are permitted, “by dispensation or otherwise, in nearly all the[98] continental states of Europe,” as well as in most of the states of the American Union.[292]

No legislation followed the commissioners’ report. Nor, despite repeated efforts, has the perennial “deceased wife’s sister’s bill” ever yet become a law. It is, indeed, curious to see a noble senate capable of accepting the liberal civil marriage law of 1836 still stubbornly resisting in this particular the secularizing of marriage which a recent writer observes “is an evident accompaniment, if it is not a consequence, of the progress of democracy.”[293] There “can be little doubt,”[99]adds the same author, “that the opposition to these marriages rests mainly upon theological grounds.”[294] Yet even on such grounds it is hard to see why the Protestant theologian or lawgiver should retain them in the table of degrees of affinity prohibited by the code of Moses, while other provisions of that law far more clearly enjoined are rejected or ignored. “The Jews themselves maintain that this kind of marriage is not forbidden in the Old Testament, and great numbers of the most eminent Christian divines concur in their opinion.”[295][100] The Catholic is far more consistent and liberal in this respect; for he “regards the prohibition as resting, not on direct Divine or natural law, but merely on an ecclesiastical command, and his Church therefore claims and constantly exercises the right of dispensing with it.”[296] The arguments on either side of the controversy need not here be summarized. Those in favor of the prohibition rest almost wholly upon authority. Only secondarily is an attempt made to defend it on social, political, or moral grounds. For most people of the civilized world[297] the subject is already “ancient history.” Hence the modern student who first takes this controversial literature in hand is amazed to find men of high repute still earnestly speaking the language of the Middle Ages; still juggling with the casuistry and quibbles which satisfied Tancred and his predecessors.[298]

The nature of the problem and the way it is conceived by the English theological mind are thus strongly stated by Lecky in the fine paragraph with which he closes his interesting discussion of these marriages: “It would be difficult to overstate the extravagance of the language which has been sometimes employed in England by their opponents. One gentleman, who had been Lord Chancellor of England, more[101] than once declared that if marriage with a deceased wife’s sister ever became legal ‘the decadence of England was inevitable,’ and that, for his part, he would rather see 300,000 Frenchmen landed on the English coasts.[299] Pictures have been drawn of the moral anarchy such marriages must produce, which are read by American, colonial, and continental observers with a bewilderment that is not unmixed with disgust, and are, indeed, a curious illustration of the extreme insularity of the English mind. The truth seems to be that there are cases in which the presence of a young and attractive sister-in-law in a widower’s house would, under any system of law, produce scandal. There are others where, in all countries, a sister-in-law’s care and presence would seem natural. There are cases where every murmur is silenced by the simple consideration that the two parties are at perfect liberty to marry if they please. Experience—the one sure guide in politics—conclusively shows how quickly the best public opinion of a country accommodates itself to these marriages; how easy, natural, and beneficent they prove; how little disturbance of any kind they introduce into domestic relations. They will long be opposed on the ground of ecclesiastical traditions, and apart from all considerations of consequences, by a section of theologians in England, in America, and in the Colonies. Those who consider them wrong should abstain from contracting them, and a wise legislature will deal gently with the scruples of objecting clergymen, as it has done in the case of the marriage of divorced persons. But the law of the land should rest on other than ecclesiastical grounds, and a prohibition that has[102] no foundation in nature or in reason is both unjust and oppressive. It is not for the true interests of morals or of family life that the law should brand as immoral, unions which those who contract them feel and know to be perfectly innocent, and which are fully sanctioned by the general voice of the civilised world, by an overwhelming majority of the English race, by a great and steadily increasing weight of public opinion at home, and by repeated majorities in the House of Commons. In an age when most wise and patriotic men desire that the influence and character of the Upper House should be upheld and strengthened, few things can be more deplorable than that this House should have suffered itself to be made the representative of a swiftly vanishing superstition, the chief instrument in perpetuating a paltry and an ignoble persecution.”[300]

cParliamentary divorce.—More than twenty years were yet to pass before the appearance of the first English statute providing for divorce through regular civil process. Proximately the act of 1857 owes its origin to the anomaly of parliamentary divorce, whose glaring inconsistency but served to accent the evils fostered by the canons of 1603. In theory marriage continued to be absolutely indissoluble. Only by giving bond not to marry again could a person secure even a judicial separation. No matter how grave the offense, or how notorious the breach of the nuptial vow, the parties in most legal respects were chained for life. At most they might be suffered to dwell apart. Obviously the proper remedy would have been a general law of civil divorce whose benefits should be placed within the easy reach of rich and poor alike. Instead, a resort was had to special acts of Parliament whose advantages could be enjoyed only by a fortunate class.[301] The practice originated in[103] the last years of the seventeenth century, though it may have been suggested by prior instances of legislative intervention in matrimonial questions. As early as 1436 a marriage obtained by force was declared void.[302] More clearly analogous is the opposite case of Lord Northampton, already mentioned, whose second marriage after decree of separation was pronounced valid in 1552. This, however, is not an instance of parliamentary divorce.[303] Nor, strictly speaking, is that of Lord Roos in 1670, which Macqueen regards as the first “genuine example;” for the bill is entitled merely “an act for John Manners, called Lord Roos, to marry again;” and does not as alleged expressly effect a “rescission of the contract.”[304] The earliest clear precedents are the case[104] of the Earl of Macclesfield in 1698 and that of the Duke of Norfolk, two years later, in each of which the act provides for a dissolution of marriage.[305] Ultimately (1798) a standing order of the House of Lords requires that “all bills of divorce shall be preceded by a sentence of separation a mensa, issuing out of the ecclesiastical court;”[306] and usually such bills must be preceded also by the action at law against the guilty paramour for damage.[307] Thus a vast power was placed in the hands of the spiritual courts to hinder an aggrieved husband or wife from resorting to Parliament for redress. This fact is illustrated in the history of the cases already cited. Lord Roos had previously secured a decree of separation, no mention being made of an action for damage. In Lord Macclesfield’s case the bill for divorce was sustained neither by a judgment at law nor by an ecclesiastical sentence. For “in consequence of the skilful opposition set up by the countess in the spiritual courts, and the narrow antiquated maxims which there prevailed, she contrived to baffle all her husband’s efforts to obtain a sentence of divorce à mensâ et thoro. The circumstances of the case, however, were so scandalous and flagrant, that it would have been an outrage upon every principle of justice to withhold relief.” In like manner for seven years the[105] Duke of Norfolk tried in vain to obtain a decree of separation, although he “recovered damage at law from the adulterer, Sir John Jermayne.”[308] But in no other case save these two has there been a successful resort to Parliament without first obtaining the sentence of an ecclesiastical judge;[309] and the clumsy, almost farcical, nature of the procedure in divorce suits may be more fully appreciated when it is borne in mind that an aggrieved spouse desirous of securing a divorce from a guilty partner through an act of Parliament was compelled, before he could “get through the ecclesiastical courts, to pledge himself not to remarry.”[310]

In consequence of the standing order of the House of Lords, Parliament was unable to grant relief, except on the one ground of conjugal infidelity; for the spiritual court declined to issue a decree of separation for malicious desertion, unless in connection with acts of cruelty.[311] “On a retrospect of one hundred and seventy years, since the establishment of the system of parliamentary divorce a vinculo,” says Macqueen, writing in 1842, “I find no case in which that remedy has been awarded or sought, without a charge of adultery. There is no example of a bill of divorce for malicious desertion,” although from the Reformation onward this has been a clearly recognized ground for dissolution of wedlock in other Protestant lands.[312] Furthermore, with respect to the rights of the wife Parliament was more illiberal than the spiritual courts themselves, refusing, even after the ecclesiastical sentence of separation, to free her from a dissolute husband, unless his offense were attended by “aggravating” conduct, such as cruelty. In no case was the woman granted relief merely for the husband’s[106] unfaithfulness, however flagrant and shameless his conduct might be. Indeed, for the entire period during which the practice existed, there were but three or four examples of legislative divorce at the instance of a woman, and in each case the man’s infidelity was attended by other offenses.[313] In two other cases the bill of the wife was rejected by the Lords, although the grievous wrong which she had suffered was established by the clearest proof.[314] Parliament appears to have accepted the view of Dr. Johnson that there is a “boundless” difference between the infidelity of the man and that of the woman. In the husband’s case, according to that philosopher, there is no danger of a “confusion of progeny;” and this, he says, “constitutes the essence of the crime.”[315] Therefore, “wise married women don’t trouble themselves” about such mere peccadilloes.[316]

The sphere of parliamentary divorce was greatly narrowed in still other ways. As a matter of fact, for the century and a half during which the practice prevailed perhaps not more[107] than two hundred such separations were granted.[317] In the first place, the rules of evidence observed in the spiritual courts tended to thwart justice even in cases of the most cruel and scandalous wrongs. Two witnesses were invariably required; whereas in the lay tribunals one witness is accepted as sufficient when no more can be had.[318] On such testimony, for instance, damage may be awarded in the suit at law for adultery, when the same evidence is rejected as insufficient in the ecclesiastical action for separation. Yet it is precisely in cases of adultery that a “penuria testium is most likely to occur. To require two witnesses of facts almost necessarily secret is, in most cases, to ensure a denyal of justice. Of this constant examples are to be found in the records of the ecclesiastical courts.”[319]

Again, the relief granted by Parliament was effectively placed beyond the reach of all save the plutocracy. The triple cost of the law action, the ecclesiastical decree, and the legislative proceedings was enormous. How utterly the luxury of divorce was placed beyond the wildest dreams of the poor man clearly appears when one understands that it could[108] be obtained only through the expenditure of a fortune sometimes amounting to thousands of pounds.[320] The shameful injustice of the system has never been so vividly brought out as in the often-quoted words of Justice Maule in a case tried before him in 1845: “The culprit was a poor man who had committed bigamy. The defence was that when the prisoner married his second wife he had in reality no wife, for his former wife had first robbed, and then deserted him, and was now living with another man. The judge imposed the lightest penalty in his power, but he prefaced it with some ironical remarks which made a deep and lasting impression. Having described the gross provocation under which the prisoner had acted, he continued: ‘But, prisoner, you have committed a grave offence in taking the law into your own hands and marrying again. I will now tell you what you should have done. You should have brought an action into the civil court, and obtained damages, which the other side would probably have been unable to pay, and you would have had to pay your own costs—perhaps 100 l. or 150 l. You should then have gone to the ecclesiastical court and obtained a divorce a mensa et thoro, and then to the House of Lords, where having proved that these preliminaries had been complied with, you would have been enabled to marry again. The expenses might amount to 500 l. or 600 l. or perhaps 1000 l. You say you are a poor man, and you probably do not possess as many pence. But, prisoner, you must[109] know that in England there is not one law for the rich and another for the poor.'”[321]

dThe present English law.—It is, indeed, wonderful that a great nation, priding herself on a love of equity and social liberty, should thus for five generations tolerate an invidious indulgence, rather than frankly and courageously to free herself from the shackles of an ecclesiastical tradition! But even in England, so far as the state is concerned, the dogma that marriage is an indissoluble bond has finally run its course. A partial remedy for the scandals and hardships of the existing system was at last grudgingly provided in the civil divorce law of 1857. By this act,[322] which during a whole session of Parliament was stubbornly resisted, mainly on religious grounds,[323] the entire jurisdiction in matrimonial questions hitherto belonging to the spiritual courts, except “so far as relates to the granting of marriage licences,” is transferred to a new civil “Court for Divorce and Matrimonial Causes;” and since 1873 this tribunal has given[110] place to the “Probate, Divorce, and Admiralty Division” of the “High Court of Justice.”[324] It is “a court for England only,” its competence not extending to Ireland, Scotland, or the Channel Isles.[325]

By the law of 1857, supplemented in various ways through subsequent statutes, three forms of separation are recognized. First, on petition of either consort the court is empowered to grant a complete dissolution of wedlock; but in this respect the provisions of the act are conceived in the same narrow spirit that actuated the policy of legislative divorce. The woman is treated with precisely the same injustice. For while the husband may secure an absolute divorce on account of the simple adultery of the wife, the wife is unable to free herself from an unfaithful husband unless his infidelity has been coupled with such cruelty as “would have entitled her to a divorce a mensa et thoro;” or “with desertion, without reasonable cause, for two years and upwards;” or with certain other aggravating offenses.[326]Friends and enemies of the bill alike joined in condemning the unequal position in which man and wife were placed. Gladstone, who tenaciously resisted the act on theological grounds, declared: “If there is one broad and palpable principle of Christianity which we ought to regard as precious it is, that it has placed the seal of God Almighty upon the equality of man and woman with respect to everything that relates to these rights.”[327] On the other hand, the attorney-general,[111] who introduced the measure, found it necessary to apologize for this defect. “If this bill,” he says, “were thrown aside and the whole law of marriage and divorce made the subject of inquiry, I should be the last man to limit the field of discussion or to refuse to consider a state of law which inflicts injustice upon the women most wrongfully and without cause, and which may be considered opprobrious and wicked;” moreover, he continues, the “present bill need not be the end-all of legislation upon the subject.”[328]

In judicial practice, however, the terms “cruelty” and “desertion” have acquired a rather broad meaning.[329] In particular through the doctrine of “constructive” and “moral” cruelty there is a “strong tendency to equalize the positions of the two” sexes.[330] Nevertheless, the woman is still in a relatively unfavorable position; and the sphere of divorce a vinculo is exceedingly narrow. There are doubtless many other causes besides infidelity for which the welfare of society and the happiness of individuals require that marriage may be dissolved. “It is a scandal to English legislation,” observes[112] Lecky, that divorce “should not be granted when one of the partners has been condemned for some grave criminal offence involving a long period of imprisonment or penal servitude, or for wilful and prolonged desertion, or for cruelty, however atrocious, if it is not coupled with adultery. In all continental legislations which admit divorce a catalogue of grave causes is admitted which justify it.”[331]

While depriving the ancient spiritual tribunals of the monopoly of matrimonial jurisdiction which they had so long possessed, Parliament made a proper concession to the scruples of the regular clergy. By the act a divorced person, whether guilty or innocent, is permitted to marry again if he likes; but a clergyman of the “United Church of England and Ireland” is not compelled to solemnize the marriage. Should he refuse, however, he cannot legally prevent a brother-minister of the establishment from using his church or chapel for the celebration; and this last provision has in our own day become a standing grievance on the part of those who denounce such a celebration as a “defilement” of the sanctuary.[332]

[113]

The act of 1857 directs that, before granting a decree, the court shall “satisfy itself, so far as it reasonably can, not only as to the facts alleged,” but also whether there has been any collusion between the petitioner and either of the respondents, or whether there is any bar or counter-charge against the petitioner.[333] But no special procedure was created for making the inquiry suggested, “nor could a stranger without any legal private interest intervene.”[334] The necessary machinery for that purpose was provided by the Matrimonial Causes Act[335] of 1860, which rests upon the theory “that the public is interested in seeing that no marriage is dissolved except on certain grounds.”[336] Two distinct stages in the proceedings for a dissolution of wedlock are prescribed. If a sentence of divorce be rendered, it must always in the first instance be a decree nisi. Only after an interval of six months, unless a shorter time be set by the court, can such a decree be made absolute. In the meantime, the queen’s proctor, or any member of the public, whether interested in the suit or not, may “intervene” to show collusion or the suppression of material facts;[337] and in case of such intervention[114] the court shall deal with the cause “by making the decree absolute, or by reversing the decree nisi,” or by conducting further examination, as “justice may require.”

[115]

Secondly, the present English law allows a decree for “judicial separation” with the “same force and the same consequences” as the former sentence of divorce a mensa et thoro, which is abolished by the act of 1857.[338] To such a decree either the husband or the wife is entitled on the ground of adultery, cruelty, or two years’ desertion;[339] provided no legal bar to the petition such as condonation, cruelty, or a separation deed, be established. At the prayer of the petitioner, or when the evidence is insufficient to warrant a decree of complete divorce, a judicial separation may be granted in a suit brought for dissolution of marriage.[340] After such separation the wife is considered as a feme sole with respect to property, contracts, wrongs, suing and being sued; and her husband is not liable for her engagements.[341] In place of the old action at law for “criminal conversation” a prayer for damage against the wife’s paramour may be joined with the petition for judicial separation or for dissolution of wedlock; or the aggrieved husband may make separate application for indemnity.[342] Adultery thus becomes a mere “private injury” and not a crime. The damage recovered may be “applied by the court for the benefit of the children of the marriage or for the maintenance of the wife.” When the wife is the guilty person and is entitled to property in possession or in reversion, the court, at its discretion, may settle “such property, or any part of it, on the innocent party, or on the children of the marriage.”[343] The rules, principles, and procedure observed in the old ecclesiastical courts are to be followed by the civil judge in a suit for judicial separation except as otherwise provided by statute.[344]

In the third place, by the existing law provision is made for what is commonly called “magisterial separation.” The “separation order,” presently to be considered, is one of several remedial devices introduced by various statutes in the injured wife’s behalf. Thus the act of 1857 enables a woman deserted by her husband to apply to a local court of summary jurisdiction, or, if she prefer, to the high divorce court of the kingdom, for an order to protect her subsequently acquired earnings or property from being seized by him or any of his creditors.[345] By this “protection order” the wife is to be in the same position as to property and contracts, suing and being sued, as if she had obtained a decree of judicial separation.[346] In all respects she is treated as a feme sole. For a number of years after it was first introduced the protection order was a means of real redress; for then, according to the principles of the barbarous laws of the Middle Ages which still survived, a married woman without settlements had practically no property rights at all during her husband’s lifetime. Her landed property at marriage passed into his control; her chattels and personal[116] effects of every description became absolutely his; and she had no legal power to dispose even of the wages of her own toil.[347] The protection order merely gave the wife her own, preventing the man who had basely abandoned her without making any provision for her support from appropriating the wages or the property which she might thereafter gain. More than this it did not do. “So to a poor wife a protection order was but little, if any, advantage, and now seems absolutely useless. For it did not relieve her from cohabitation, it did not compel the husband to pay her any alimony, and it did not permit her to pledge his credit for necessaries.”[348] Since the Married Women’s Property Acts, therefore, notably those of 1870 and 1882, by which many of the worst evils of the old system have been remedied,[349] the protection order has been of little avail. Accordingly, a new measure of relief was adopted. The act of 1886,[350] in case of desertion, provides that any two justices in petty sessions or any stipendiary magistrate may make a “maintenance order” when they “are satisfied that the husband, being able wholly or in part to maintain his wife and family has wilfully refused and neglected to do so.” The maintenance order requires the husband to “pay to the wife such weekly sum, not exceeding two pounds, as the justices or magistrate may consider to be in accordance with his means and with any means the wife may have for her support and the support of her family;” and the payment of the sum so ordered may be[117] enforced by distress or by imprisonment if necessary.[351] Unlike the protection order, the order for maintenance is not expressly declared to be equivalent to a judicial separation; so it is inferred that a husband may “at any moment terminate the desertion,” and require to be taken back by the wife who will “be in default” for refusal.[352]

By the protection and maintenance orders a deserted wife is secured in the enjoyment of her own property or is given a just share in her delinquent partner’s goods. In the meantime, a statute of 1878 attempts to shield her from a husband’s brutality through the so-called “separation order.”[353] The court is authorized in case of “aggravated assault,” if “satisfied that the future safety of the wife is in peril,” to order that she shall no longer be bound to live with her husband; that he shall render to her such weekly alimony[354] as may seem just; and to place the children in her custody.[355] This order for “magisterial separation,” as it is called, has the “effect in all respects of a decree of judicial separation on the ground of cruelty.” Like the protection, and probably also the maintenance, order, it does not preclude the wife’s right, when she sees fit, to apply for a judicial separation or even for a dissolution of marriage.[356]

…Please login to continue reading
This content is for Premium 1 , Premium 2 and Premium 3 members only please login or sign up for further access to the sites content and to participate in our online community..
Log In Register

©2019 ENS HUMANITAS SOCIAL ENTERPRISES

CONTACT US

We're not around right now. But you can send us an email and we'll get back to you, asap.

Sending

Log in with your credentials

or    

Forgot your details?

Create Account