marriage contracted in innocence, and the issue of
persons who
subsequently marry each other, are legitimate by
Canon law, but
not by the common law of England (Geary, _Marriage
and Family
Relations_, p. 3; Pollock and Maitland, loc. cit.).
The Canonists
regarded the disabilities attaching to bastardy as a
punishment
inflicted on the offending parents, and considered,
therefore,
that no burden should fall on the children when
there had been a
ceremony in good faith on the part of one at least
of the
parents. In this respect the English law is less
reasonable and
humane. It was at the Council of Merton, in 1236,
that the barons
of England rejected the proposal to make the laws of
England
harmonize with the Canon law, that is, with the
ecclesiastical
law of Christendom generally, in allowing children
born before
wedlock to be legitimated by subsequent marriage.
Grosseteste
poured forth his eloquence and his arguments in
favor of the
change, but in vain, and the law of England has ever
since stood
alone in this respect (Freeman, "Merton Priory,"
_English Towns
and Districts_). The proposal was rejected in the
famous formula,
"Nolumus leges Angliæ mutare," a formula which merely stood for
an unreasonable and inhumane obstinacy.
In the United States, while by common law subsequent
marriage
fails to legitimate children born before marriage,
in many of the
States the subsequent marriage of the parents
effects by statute
the legitimacy of the child, sometimes (as in Maine)
automatically, more usually (as in Massachusetts)
through special
acknowledgment by the father.
The appearance of Luther and the Reformation involved
the decay of the
Canon law system so far as Europe as a whole was
concerned. It was for
many reasons impossible for the Protestant reformers to retain formally
either the Catholic conception of matrimony or the
precariously elaborate
legal structure which the Church had built up on that
conception. It can
scarcely be said, indeed, that the Protestant attitude towards the
Catholic idea of matrimony was altogether a clear,
logical, or consistent
attitude. It was a revolt, an emotional impulse, rather than a matter of
reasoned principle. In its inevitable necessity, under the circumstances
of the rise of Protestantism, lies its justification,
and, on the whole,
its wholesome soundness. It took the form, which may
seem strange in a
religious movement, of proclaiming that marriage is not a religious but a
secular matter. Marriage is, said Luther, "a worldly thing," and Calvin
put it on the same level as house-building, farming, or shoe-making. But
while this secularization of marriage represents the
general and final
drift of Protestantism, the leaders of Protestantism
were themselves not
altogether confident and clear-sighted in the matter.
Even Luther was a
little confused on this point; sometimes he seems to
call marriage "a
sacrament," sometimes "a temporal business," to be left to the state.[332]
It was the latter view which tended to prevail. But at first there was a
period of confusion, if not of chaos, in the minds of
the Reformers; not
only were they not always convinced in their own minds; they were at
variance with each other, especially on the very
practical question of
divorce. Luther on the whole belonged to the more rigid party, including
Calvin and Beza, which would grant divorce only for
adultery and malicious
desertion; some, including many of the early English
Protestants, were in
favor of allowing the husband to divorce for adultery
but not the wife.
Another party, including Zwingli, were influenced by
Erasmus in a more
liberal direction, and--moving towards the standpoint of Roman Imperial
legislation--admitted various causes of divorce. Some, like Bucer,
anticipating Milton, would even allow divorce when the husband was unable
to love his wife. At the beginning some of the Reformers adopted the
principle of self-divorce, as it prevailed among the
Jews and was accepted
by some early Church Councils. In this way Luther held that the cause for
the divorce itself effected the divorce without any
judicial decree,
though a magisterial permission was needed for
remarriage. This question
of remarriage, and the treatment of the adulterer, were also matters of
dispute. The remarriage of the innocent party was
generally accepted; in
England it began in the middle of the sixteenth century, was pronounced
valid by the Archbishop of Canterbury, and confirmed by Parliament. Many
Reformers were opposed, however, to the remarriage of
the adulterous
party. Beust, Beza, and Melancthon would have him hanged and so settle the
question of remarriage; Luther and Calvin would like to kill him, but
since the civil rulers were slack in adopting that
measure they allowed
him to remarry, if possible in some other part of the
country.[333]
The final outcome was that Protestantism framed a
conception of marriage
mainly on the legal and economic factor--a factor not
ignored but strictly
subordinated by the Canonists--and regarded it as
essentially a contract.
In so doing they were on the negative side effecting a real progress, for
they broke the power of an antiquated and artificial
system, but on the
positive side they were merely returning to a conception which prevails in
barbarous societies, and is most pronounced when
marriage is most
assimilable to purchase. The steps taken by
Protestantism involved a
considerable change in the nature of marriage, but not necessarily any
great changes in its form. Marriage was no longer a
sacrament, but it was
still a public and not a private function and was still, however
inconsistently, solemnized in Church. And as
Protestantism had no rival
code to set up, both in Germany and England it fell back on the general
principles of Canon law, modifying them to suit its own special attitude
and needs.[334] It was the later Puritanic movement,
first in the
Netherlands (1580), then in England (1653), and
afterwards in New England,
which introduced a serious and coherent conception of
Protestant marriage,
and began to establish it on a civil base.
The English Reformers under Edward VI and his
enlightened
advisers, including Archbishop Cranmer, took liberal
views of
marriage, and were prepared to carry through many
admirable
reforms. The early death of that King exerted a
profound
influence on the legal history of English marriage.
The Catholic
reaction under Queen Mary killed off the more
radical Reformers,
while the subsequent accession of Queen Elizabeth,
whose attitude
towards marriage was grudging, illiberal, and old-
fashioned,
approximating to that of her father, Henry VIII (as
witnessed,
for instance, in her decided opposition to the
marriage of the
clergy), permanently affected English marriage law.
It became
less liberal than that of other Protestant
countries, and closer
to that of Catholic countries.
The reform of marriage attempted by the Puritans
began in England
in 1644, when an Act was passed asserting "marriage to be no
sacrament, nor peculiar to the Church of God, but
common to
mankind and of public interest to every
Commonwealth." The Act
added, notwithstanding, that it was expedient
marriage should be
solemnized by "a lawful minister of the Word." The more radical
Act of 1653 swept away this provision, and made
marriage purely
secular. The banns were to be published (by
registrars specially
appointed) in the Church, or (if the parties
desired) the
market-place. The marriage was to be performed by a
Justice of
the Peace; the age of consent to marriage for a man
was made
sixteen, for a woman fourteen (Scobell's _Acts and
Ordinances_,
pp. 86, 236). The Restoration abolished this
sensible Act, and
reintroduced Canon-law traditions, but the Puritan
conception of
marriage was carried over to America, where it took
root and
flourished.
It was out of Puritanism, moreover, as represented by
Milton, that the
first genuinely modern though as yet still imperfect
conception of the
marriage relationship was destined to emerge. The early Reformers in this
matter acted mainly from an obscure instinct of natural revolt in an
environment of plebeian materialism. The Puritans were moved by their
feeling for simplicity and civil order as the conditions for religious
freedom. Milton, in his _Doctrine and Discipline of
Divorce_, published in
1643, when he was thirty-five years of age, proclaimed the supremacy of
the substance of marriage over the form of it, and the spiritual autonomy
of the individual in the regulation of that form. He had grasped the
meaning of that conception of personal responsibility
which is the
foundation of sexual relationships as they are beginning to appear to men
to-day. If Milton had left behind him only his writings on marriage and
divorce they would have sufficed to stamp him with the seal of genius.
Christendom had to wait a century and a half before
another man of genius
of the first rank, Wilhelm von Humboldt, spoke out with equal authority
and clearness in favor of free marriage and free
divorce.
It is to the honor of Milton, and one of his chief
claims on our
gratitude, that he is the first great protagonist in
Christendom
of the doctrine that marriage is a private matter,
and that,
therefore, it should be freely dissoluble by mutual
consent, or
even at the desire of one of the parties. We owe to
him, says
Howard, "the boldest defence of the liberty of
divorce which had
yet appeared. If taken in the abstract, and applied
to both sexes
alike, it is perhaps the strongest defence which can
be made
through an appeal to mere authority;" though his
arguments, being
based on reason and experience, are often ill
sustained by his
authority; he is really speaking the language of the
modern
social reformer, and Milton's writings on this
subject are now
sometimes ranked in importance above all his other
work (Masson,
_Life of Milton_, vol. iii; Howard, op. cit., vol.
ii, p. 86,
vol. iii, p. 251; C.B. Wheeler, "Milton's Doctrine and Discipline
of Divorce," _Nineteenth Century_, Jan., 1907).
Marriage, said Milton, "is not a mere carnal
coition, but a human
society; where that cannot be had there can be no
true marriage"
(_Doctrine of Divorce_, Bk. i, Ch. XIII); it is "a covenant, the
very being whereof consists not in a forced
cohabitation, and
counterfeit performance of duties, but in unfeigned
love and
peace" (Ib., Ch. VI). Any marriage that is less than this is "an
idol, nothing in the world." The weak point in
Milton's
presentation of the matter is that he never
explicitly accords to
the wife the same power of initiative in marriage
and divorce as
to the husband. There is, however, nothing in his
argument to
prevent its equal application to the wife, an
application which,
while never asserting he never denies; and it has
been pointed
out that he assumes that women are the equals of men
and demands
from them intellectual and spiritual companionship;
however ready
Milton may have been to grant complete equality of
divorce to the
wife, it would have been impossible for a
seventeenth century
Puritan to have obtained any hearing for such a
doctrine; his
arguments would have been received with, if that
were possible,
even more neglect than they actually met. (Milton's
scornful
sonnet concerning the reception of his book is well
known.)
Milton insists that in the conventional Christian
marriage
exclusive importance is attached to carnal
connection. So long as
that connection is possible, no matter what
antipathy may exist
between the couple, no matter how mistaken they may
have been
"through any error, concealment, or misadventure,"
no matter if
it is impossible for them to "live in any union or contentment
all their days," yet the marriage still holds good, the two must
"fadge together" (op. cit., Bk. i). It is the Canon law, he says,
which is at fault, "doubtless by the policy of the devil," for
the Canon law leads to licentiousness (op. cit.). It
is, he
argues, the absence of reasonable liberty which
causes license,
and it is the men who desire to retain the
privileges of license
who oppose the introduction of reasonable liberty.
The just ground for divorce is "indisposition,
unfitness, or
contrariety of mind, arising from a cause in nature
unchangeable,
hindering, and ever likely to hinder, the main
benefits of
conjugal society, which are solace and peace."
Without the "deep
and serious verity" of mutual love, wedlock is
"nothing but the
empty husks of a mere outside matrimony," a mere
hypocrisy, and
must be dissolved (op. cit.).
Milton goes beyond the usual Puritan standpoint, and
not only
rejects courts and magistrates, but approves of
self-divorce; for
divorce cannot rightly belong to any civil or
earthly power,
since "ofttimes the causes of seeking divorce reside so deeply in
the radical and innocent affections of nature, as is
not within
the diocese of law to tamper with." He adds that, for the
prevention of injustice, special points may be
referred to the
magistrate, who should not, however, in any case, be
able to
forbid divorce (op. cit., Bk. ii, Ch. XXI). Speaking
from a
standpoint which we have not even yet attained, he
protests
against the absurdity of "authorizing a judicial
court to toss
about and divulge the unaccountable and secret
reason of
disaffection between man and wife."
In modern times Hinton was accustomed to compare the
marriage law
to the law of the Sabbath as broken by Jesus. We
find exactly the
same comparison in Milton. The Sabbath, he believes,
was made for
God. "Yet when the good of man comes into the
scales, we have
that voice of infinite goodness and benignity, that
'Sabbath was
made for man and not man for Sabbath.' What thing
ever was made
more for man alone, and less for God, than
marriage?" (_op.
cit._, Bk. i, Ch. XI). "If man be lord of the
Sabbath, can he be
less than lord of marriage?"
Milton, in this matter as in others, stood outside the currents of his
age. His conception of marriage made no more impression on contemporary
life than his _Paradise Lost_. Even his own Puritan
party who had passed
the Act of 1653 had strangely failed to transfer divorce and nullity cases
to the temporal courts, which would at least have been a step on the right
road. The Puritan influence was transferred to America and constituted the
leaven which still works in producing the liberal though too minutely
detailed divorce laws of many States. The American
secular marriage
procedure followed that set up by the English
Commonwealth, and the dictum
of the great Quaker, George Fox, "We marry none, but are witnesses of
it,"[335] (which was really the sound kernel in the Canon law) is regarded
as the spirit of the marriage law of the conservative
but liberal State of
Pennsylvania, where, as recently as 1885, a statute was passed expressly
authorizing a man and woman to solemnize their own
marriage.[336]
In England itself the reforms in marriage law effected by the Puritans
were at the Restoration largely submerged. For two and a half centuries
longer the English spiritual courts administered what
was substantially
the old Canon law. Divorce had, indeed, become more
difficult than before
the Reformation, and the married woman's lot was in
consequence harder.
From the sixteenth century to the second half of the
nineteenth, English
marriage law was peculiarly harsh and rigid, much less liberal than that
of any other Protestant country. Divorce was unknown to the ordinary
English law, and a special act of Parliament, at
enormous expense, was
necessary to procure it in individual cases.[337] There was even an
attitude of self-righteousness in the maintenance of
this system. It was
regarded as moral. There was complete failure to realize that nothing is
more immoral than the existence of unreal sexual unions, not only from
the point of view of theoretical but also of practical morality, for no
community could tolerate a majority of such unions.[338]
In 1857 an act
for reforming the system was at last passed with great difficulty. It was
a somewhat incoherent and make-shift measure, and was
avowedly put forward
only as a step towards further reform; but it still
substantially governs
English procedure, and in the eyes of many has set a
permanent standard of
morality. The spirit of blind conservatism,--_Nolumus
leges Angliæ
mutare_,--which in this sphere had reasserted itself
after the vital
movement of Reform and Puritanism, still persists. In
questions of
marriage and divorce English legislation and English
public feeling are
behind alike both the Latin land of France and the
Puritanically moulded
land of the United States.
The author of an able and temperate essay on _The
Question of
English Divorce_, summing up the characteristics of
the English
divorce law, concludes that it is: (1) unequal, (2)
immoral, (3)
contradictory, (4) illogical, (5) uncertain, and (6)
unsuited to
present requirements. It was only grudgingly
introduced in a
bill, presented to Parliament in 1857, which was
stubbornly
resisted during a whole session, not only on
religious grounds by
the opponents of divorce, but also by the friends of
divorce, who
desired a more liberal measure. It dealt with the
sexes
unequally, granting the husband but not the wife
divorce for
adultery alone. In introducing the bill the
Attorney-General
apologized for this defect, stating that the measure
was not
intended to be final, but merely as a step towards
further
legislation. That was more than half a century ago,
but the
further step has not yet been taken. Incomplete and
unsatisfactory as the measure was, it seems to have
been regarded
by many as revolutionary and dangerous in the
highest degree. The
author of an article on "Modern Divorce" in the _Universal
Review_ for July, 1859, while approving in principle
of the
establishment of a special Divorce Court, yet
declared that the
new court was "tending to destroy marriage as a
social
institution and to sap female chastity," and that
"everyone now
is a husband and wife at will." "No one," he adds,
"can now
justly quibble at a deficiency of matrimonial
vomitories."
Yet, according to this law, it is not even possible
for a wife to
obtain a divorce for her husband's adultery, unless
he is also
cruel or deserts her. At first "cruelty" meant physical cruelty
and of a serious kind. But in course of time the
meaning of the
word was extended to pain inflicted on the mind, and
now coldness
and neglect may almost of themselves constitute
cruelty, though
the English court has sometimes had the greatest
hesitation in
accepting the most atrocious forms of refined
cruelty, because it
involved no "physical" element. "The time may very reasonably be
looked forward to, however," a legal writer has
stated
(Montmorency, "The Changing Status of a Married
Woman," _Law
Quarterly Review_, April, 1897), "when almost any act of
misconduct will, in itself, be considered to convey
such mental
agony to the innocent party as to constitute the
cruelty
requisite under the Act of 1857." (The question of cruelty is
fully discussed in J.R. Bishop's _Commentaries on
Marriage,
Divorce and Separation_, 1891, vol. i, Ch. XLIX; cf.
Howard, op.
cit., vol. ii, p. 111).
There can be little doubt, however, that cruelty
alone is a
reasonable cause for divorce. In many American
States, where the
facilities for divorce are much greater than in
England, cruelty
is recognized as itself sufficient cause, whether
the wife or the
husband is the complainant. The acts of cruelty
alleged have
sometimes been seemingly very trivial. Thus divorces