XVI MARRIAGE AND DIVORCE UNDER ROMAN AND ENGLISH LAW (continued 2)

XVIII. Statistics of Divorce in America.

Under these lax laws, and the not less lax administration of them, the number of divorces has in the United States risen with formidable rapidity. In 1867 there were 9,937 granted, in 1886, 25,535, an increase of nearly 157 per cent. in twenty years. The total number recorded to have been granted in those twenty years (and the record is probably not quite complete) is 328,716, a ghastly total, exceeding all the divorces granted in the same years in all other Christian countries^[218]. The population of the Republic increased about 60 per cent. within the same twenty years. Taking the two census years 1870 and 1880, the percentage of increase was, for the population, 30·1, for divorce, 79·4, or more than twice as great; and while in many States the percentage of divorce increase is 444far larger than 79·4, there are only five in which divorce has not grown faster than population.

The increase is most rapid in the south-western States, in several New England States, and especially in the States of the far West, less marked in the north Atlantic States generally, and in those between the Atlantic and the Mississippi. It is greater in cities than in rural districts^[219].

It is, in the South, apparently somewhat greater among the coloured people than among the whites^[220]. It is greater among native-born Americans than among immigrants from Europe. And it need hardly be said that it is far larger among Protestants than among Roman Catholics. These points deserve to be remembered, because they throw some light on the causes which have produced the increase.

Some other facts to be noted before we pass on to consider those causes are the following.

The grounds on which divorces have been granted are often trivial, even frivolous. I select a few from a long list given in the American Official Report dealing with the subject^[221].

445A wife alleges that her husband has accused her sister of stealing, thereby sorely wounding her feelings.

Another says, ‘During our whole married life my husband has never offered to take me out riding (= driving). This has been a source of great mental suffering and injury.’

Another complains that her husband does not wash himself, ‘thereby inflicting on plaintiff great mental anguish.’

Another says that her husband ‘quotes verses from the New Testament about wives obeying their husbands. He has even threatened to mash the plaintiff, and has drawn back his hand to do it.’ The decree which awarded a divorce to this wife contains the following: ‘I find that when plaintiff was sick and unable to work defendant told her the Lord commanded her to work, and that he was in the habit of frequently quoting Scriptural passages in order to show her she was to be obedient to her husband.’

A wife alleges that her husband does not come home till ten o’clock at night, and when he does return he keeps plaintiff awake talking. He also keeps a saloon, which sorely grieves mind of plaintiff. He replies, saying, ‘Plaintiff should not be ashamed of him because temporarily in the liquor business: that he may do better some day: his father was a high State Officer in Germany.’ This wife gets a divorce on the ground of ‘mental cruelty.’

In all these cases, and in many others enumerated in 446the Report where the grounds are equally slight, the divorce is granted. And similar cases are given in which the husband obtains divorce on the ground of the wife’s cruelty.

‘Mental cruelty’ is of course a term hard to define, as may be seen by examining the views that have been expressed by English judges on cruelty, and it is not wonderful that the easy-going courts of most American States should give a wide extension to such an elastic conception.

Of the causes recorded as those for which marriages are dissolved, the most frequent are Desertion, which represents 38·5 of the whole number of divorces; then Infidelity; then Cruelty; then Intoxication. Of the total number of divorces granted during the twenty years 1867-1886, 65·8 per cent., very nearly two-thirds, were granted to wives and 34·2 per cent. to husbands. Of the total number granted for infidelity 56·4 per cent. were granted to husbands and 43·6 to wives. But in the other chief causes wives are more frequently the successful applicants. In cruelty they obtain seven times as many decrees; in desertion one and a-half times as many; in intoxication eight times as many. The Report, however, shows that intemperance is either directly or indirectly responsible for a larger proportion of the total cases than its place in the table represents.

I take from a valuable paper by an Ohio lawyer (Mr. Newton D. Baker)^[222] some facts which illustrate the state of things in one of the so-called ‘Western Reserve’ counties in that great State. In Cuyahoga county the total yearly number of marriages is about 4473,400, and the number of divorce suits annually brought is about 500. In the year 1898-1899, the whole number of divorce suits brought in the Court of Common Pleas was 562 out of a total number of 3,848 suits for all causes, i.e. about 12 per cent. In the State of Ohio the annual number of marriages is from 33,000 to 40,000; the total number of divorce suits brought from 3,700 to 4,200; and the total number of divorces granted annually about 3,000 in a population of about 4,000,000. Mr. Baker observes that ‘five of the causes on which the law allows divorce, viz. wilful absence of either party from the other for three years, extreme cruelty, fraudulent contract, any gross neglect of duty, and habitual drunkenness for three years, are all so vague and elastic as to amount to unrestricted licence in the matter of divorce.’ Out of 366 divorces granted in the year 1898-1899, wilful absence and gross neglect of duty accounted for 150, extreme cruelty for 109, habitual drunkenness for 88, and infidelity for 14 only (five being unaccounted for). He adds, ‘The personal temper and disposition of individual judges (there are more than eighty in the State entrusted with power to dissolve marriages) have come to be so well recognized as the limits of the jurisdiction of the Common Pleas Court in granting divorces, that now it is the practice of many lawyers to continue and delay the hearing of divorce causes until some judge, known to be lenient in this matter, rotates to the bench of the Court in which such cases are set for hearing.... Many of the judges appear to be oblivious to the fact that one of the most important interests of society is at stake in every divorce proceeding, and either out of unscientific ideas upon the 448subject, or out of mere complaisancy towards attorneys and litigants, they have lent themselves to a looseness of practice which is in some degree responsible for the deplorable results.’

In the United States applications for divorce are mostly made after a marriage of short duration. In one-half of the cases divorce was granted within six years from the date of marriage. Oddly enough, the average duration of a marriage terminated by divorce varies much between State and State. It is shortest in the southern States, falling to 6·48 years in Arkansas, and 6·91 in Tennessee, highest in the north-east, rising to 11·69 in New Jersey, and 12·12 in Massachusetts. This may be partly due to the fact that the more conservative States require a longer period of desertion to be proved. The duration of marriage is somewhat longer in cases where the wife applies, which may indicate either that she is more patient under her lot than the husband, or that her comparative ignorance of the world makes her less able to resort to the Courts. The fact that desertion is the cause most frequently assigned by wives may also have its effect.

It would be important to know what proportion the desire to marry some one else bears to the other causes which induce persons to seek to escape from their existing wedlock. Unfortunately American statistics of marriage, which are in many States loosely kept, do not enable us to answer this question^[223]. Practising 449lawyers say that nothing is commoner. It would appear, however, from some European^[224] figures that there is in reality no greater tendency for divorced men, and scarcely any greater tendency for divorced women, to remarry within a few years of the dissolution of their marriage than there is for widowers and widows to do so after the death of a consort; and it has often been observed that persons who have been most happily married are among those most likely to marry again.

The rapid growth of divorce under the hasty legislation which marked the first half of the present century began about thirty years ago to create some alarm in the United States. The subject was much discussed, an association was formed to grapple with the evil, and in several States laws were passed restricting a little the causes entitling persons to be divorced^[225]. In those States there has accordingly been some slight diminution in the number of divorces granted, but elsewhere the rate has gone on increasing, though apparently (for there are no very recent statistics) a little more slowly than it was doing down to 1886. In some States it seems, after increasing, to have now reached a stable average to the population. This would appear to be the case in Switzerland also.

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XIX. Divorce in Modern European Countries.

It is not only in America that the evil grows. In all modern countries where divorce is permitted, that is to say in all Protestant and some Roman Catholic States, the same tendency is perceptible. Among the Protestant nations the impulse of the Reformation caused sooner or later a rejection of the old canonical doctrine of indissolubility; so we may say, speaking broadly, that in Germany, Switzerland, Holland, Denmark, Sweden and Norway, a marriage may be dissolved not only for the infidelity of either party (since in all these countries husband and wife are treated alike), but also for desertion and imprisonment for crime. Some laws go even further, allowing mutual consent to be a cause. Among Roman Catholic countries, France retained the canonical rule till the Revolution. The legislation of 1792 granted extreme freedom, which was so largely used that we are told that in 1797 there were more divorces than marriages. In 1816 the principles of Catholicism regained control, and held it till 1884, when a law was passed permitting marriages to be dissolved for the infidelity of either party, or for the condemnation of either to an infamous punishment, and authorizing the transmutation into an absolute divorce of a judicial separation which has lasted for three years. The law of Belgium is similar, but goes a little further in allowing mutual consent to be a ground, though one surrounded by many restrictions. Austria and Hungary allow divorce (under rules similar to those of Protestant countries, i.e. on the grounds of infidelity, grave crime, desertion, cruelty, &c.) to non-Catholic citizens, while 451Italy, Portugal, and Spain adhere to the Tridentine system which recognizes only a judicial separation (a mensa et thoro) and not a dissolution of the tie. Russia still leaves matrimonial causes to the ecclesiastical courts, but allows them to dissolve marriages on the ground of infidelity, a heavy criminal sentence, or disappearance of one consort for five years^[226].

In nearly all these countries such statistics as are available show an increase in the number of divorces during recent years. For instance in Belgium, a predominantly Roman Catholic country, divorces rose between 1884 and 1893 from 221 to 497. In France the suits for divorce rose from 1773 in 1884 to 7445 in 1891. The number of divorces compared with the number of marriages almost doubled in those seven years. In the German Empire there were 5342 divorces granted in 1882 and 6178 in 1891. In Holland they were, in 1883, 189, in 1892, 354. A like period saw them rise in Sweden from 218 to 316, in Norway from 7 to 82(!), in Greece from 251 to 788. The rise is slighter in Austria. Switzerland alone, though its law is comparatively lax, shows no increase^[227]. In England divorces rose from 127 in 1860 to 390 in 1887, an increase much more rapid than that of population or of marriages^[228]. Judicial separations rose between the same years from 11 to 50. In Scotland divorces which in 1867 numbered 32 had, in 1886, grown to 96, a still more rapid 452rise, as it covers only twenty instead of twenty-seven years. It is worth noting that in England it is usually the husband who petitions for a divorce, and almost always the wife who seeks a judicial separation.

The growth in so many otherwise dissimilar countries of this disposition to shake off the marriage tie is a remarkable phenomenon, which deserves more attention than it seems to have yet received in England. Though strongest in Protestant countries, it is not confined to them, as appears from the instances of Belgium, Bavaria and Greece. Though there is no divorce a vinculo in Italy or Spain, the same causes which make it frequent elsewhere may be at work, though less conspicuously, in countries where the State aids the Church in checking their outward manifestation. Divorce is an obtrusive symptom of the disease, not the disease itself.

What is the disease? or, lest we should seem to prejudge the merits of the matter, what is the source of this disposition to look upon the marriage tie with eyes different from those of a century ago, and to yield more easily to the temptation to dissolve it? The cause, whatever it is, must lie deep, for it manifests itself under many different conditions; and it may possibly be not any single cause, but a combination of several concurrent social or moral changes, independent springs whose confluence swells the stream of tendency.

A similar phenomenon happened once before in history. At Rome also, as we have already seen, a very strict theory of marriage and a corresponding strictness in practice gave way to great laxity of the law and, after a short interval, to unbounded licence in practice. 453Let us see whether we can, by examining the phenomena which brought about this change in the greatest of ancient States, hit upon any clue that may serve to explain the facts of our own time.

XX. Comparison of the Process of Change at Rome and in the Modern World.

The Romans began with a doctrine of marriage which had four salient characteristics^[229]:

A formal legal act almost invariably accompanying marriage.

A religious element in the oldest form of this act.

A subjection of the wife to the husband’s power.

A complete absorption of the wife’s property rights into the legal personality of the husband.

These characteristics all vanished; and under the newer law and custom of the city, and ultimately of the Empire—

The act of marriage required no formalities, and was entirely a private affair.

It was also a purely civil, not a religious, affair.

The wife became absolutely independent of her husband, remaining (unless she had been emancipated) in the legal family of her father.

The wife’s property remained her own, though it was usual for the consorts to have some joint property.

Concurrently with and following on these changes 454there had come about in Rome a general decline of faith in the old deities, a faith partially, but not beneficially, replaced by Oriental superstitions. There had also come habits of luxury, a thirst for material enjoyment, a passion for amusements, a general relaxation of the moral restraints which public opinion had formerly imposed. Marriage had begun to be regarded mainly from the point of view of pecuniary interest or social advancement. There was comparatively little sentiment attaching to it, and not much sense of duty. Men grew less and less willing to marry; women as well as men less and less faithful. Fewer children were born. As neither religious nor moral associations sanctified the relation, and as it could be terminated at pleasure, it was lightly entered on, and this very heedlessness, making it frequently a failure, caused it to be no less lightly dissolved. Thus social habits and a standard of opinion were formed, against which the reforming efforts of Augustus and his successors could do little, and which resisted even the far more powerful efforts of Christianity, until Roman society itself went to pieces in the West, and passed into new forms in the East.

This decadence of the matrimonial relation was doubtless facilitated by three peculiarities of the law, viz. the absence of all prescribed forms for marriage and divorce, which set caprice free from legal restraints or delays, the extinction of any necessary connexion as regards property between the two spouses^[230], and the fact that the legal family did not 455coincide with the natural family, for legally the wife remained in her father’s family and did not enter her husband’s. Nevertheless the underlying causes of that decadence were social and moral rather than legal causes.

In the modern world the change from the old state of things to the new has been slower and less complete. Still it offers a kind of parallel to the phenomena we have been considering.

Before the Reformation what were the features of the marriage relation in Europe?

It had a strongly religious character. Its formation was blessed by the Church. It was deemed a Sacrament. It was treated, for doctrinal reasons, as indissoluble. There were, to be sure, plenty of marriages essentially unhallowed, plenty of marriages contracted for the most sordid reasons, plenty of marriages with little affection; and there were also marriages tainted by sin. The standard of conjugal fidelity was in the fifteenth century a low one. Nevertheless the tie was deemed to be one which religion sanctified, and religious sentiment must have had a restraining effect upon tender consciences, and particularly upon the wife, women being usually more susceptible to religious emotion than men are.

It gave the husband, in most countries, and notably in England, an almost complete control over the property rights of the two spouses, and in this way held them together.

It gave the husband, and notably in England, almost complete control over the person and conduct of the wife, impressing upon her mind her dependence on 456him, and her duty to obey him. No doubt where the wife’s intellect or will was the stronger of the two her intellect guided or her will prevailed. Nevertheless her normal attitude was that of a submissive identification of her wishes and interests with his.

Whether these things made for affection, and for happiness, the outcome of affection, is another question. What we have to remark is that at any rate they drew the bond very tight, and formed a solid basis for family life. Bride and bridegroom took one another for richer for poorer, for better for worse, in sickness and in health, till death should them part.

What has been the course of things since the Reformation?

In Protestant countries the religious character of marriage has been sensibly weakened. Although the ceremony, in most of such countries, and notably in England, still usually receives ecclesiastical benediction, the tie is not to men’s or even to women’s minds primarily a religious tie. To most Protestants, the wedding service in church, or before a minister of religion, is rather an ornamental ceremony than essentially a sacred vow. The duties of the spouses are conceived of by them in a more or less worthy way, according to their respective religious and moral standards, but not generally, or at least seldom vividly, as a part of their duties towards God.

This is perhaps part of that general decline in the intensity of the feeling of sin which marks the Protestantism of our own time as compared with that of earlier centuries. I do not mean that people are any more sinful than they were—probably they are not. 457They were sinful enough in the seventeenth century. But wrong-doing presents itself more frequently to all but the most pious minds rather as something unworthy, something below their standard of honour, something disapproved by public opinion, than as something which deserves the wrath of God, and affects their true relation to Him as their Father. Thus the element of sin in any breach, be it slight or be it grave, of conjugal duty, would seem to be less present to the conscience of the average husband or wife now than it was formerly, at least if we are to take the literature (including the theological literature) of former times, when set beside that of our own, to be any guide.

The inquiry how far any similar change has passed upon sentiment in Roman Catholic peoples would lead us far, nor am I competent to pursue it. The conception of sin itself is not quite the same thing to pious Catholics as it is, or was, to pious Protestants. But, broadly speaking, marriage doubtless retains to Roman Catholics, and to the Orthodox church of the East, more of a sacred character than it does to Protestants, and the change in this respect from the sixteenth to the nineteenth century is doubtless greater among Protestants.

XXI. Tendencies affecting the Permanence of the Marriage Tie.

In most countries, and notably in England and the United States, married women have obtained power over their own property, including their earnings, and are now less dependent upon their husbands for support than they were formerly.

458In most countries married women have far greater personal independence than in earlier days. They can dispose of their lives as they please, and are permitted both by law and by usage an always increasing freedom of going where and doing what they will. For social purposes, they are in England (at least those who belong to the upper and middle classes are), and still more in the United States, though somewhat less in such countries as Germany and Sweden, entirely the equals of men, so that the retention of the promise to obey in the marriage service of the English Church excites amusement by its discrepancy from the facts.

Over and above these changes directly affecting the matrimonial relation, there are other changes which have modified life and thought. The old deference to custom and tradition, and therewith the stability of the social structure as a whole, have been weakened. Men move much more from place to place, so their minds have grown less settled. The habit of reading, and in particular the excessive reading of newspapers, may have produced a quickness of apprehension, but it has been accompanied by a measure of volatility and inconstancy in opinion. These in their turn have bred a liking for novelty and excitement, and have confirmed the disposition to question old-established doctrines. There is an increase, especially among women, of the things called ‘self-consciousness’ and ‘nervous tension.’ Both men and women are more excitable, and women in particular are more fastidious. Pleasures other than material are probably more appreciated, but the desire for pleasure, and the belief that every one has a right to it, seem to be stronger and more widely diffused than ever 459before. Some will perhaps add that, in an age when the belief in a future state of rewards and punishments is less deep and less general than it once was, the desire to have out of this life all the pleasure it can be made to yield is naturally stronger; yet I doubt whether beliefs regarding a future life have ever influenced men’s conduct so much as the whilom universality of those beliefs might lead us to assume.

All these tendencies are partly due to, and are certainly much increased by, that aggregation of population into great cities which makes one of the most striking contrasts between our time and the ages which formed English and American character. It is in industrial and progressive communities, such as those of Germany, Belgium, France, and England, that these tendencies are most pervasive and effective. They are even more pervasive and multiform in the United States than in Europe. It would be strange indeed if they did not affect the theory and the practice of domestic relations and the conception of the family. And their influence will evidently be greatest in the country where the ideas of democratic equality, and the notion that every human being may claim certain indefeasible ‘human rights,’ have struck deepest root.

The idea that men and women are entitled to happiness, and therefore to have barriers to their happiness removed, is strong in the United States, and has gone far to prompt both the indulgence of the laws and the over-indulgence shown in administering them. This idea has its good side. The fuller recognition of the right of women to develop their individuality and be more than mere appendages to men is one of the conspicuous gains 460which the last two or three generations have brought. It has helped to raise the conception of what marriage should be, so we must expect to find that it has made women less tolerant of an unsympathetic or unworthy partner than they were in the eighteenth century.

It would not therefore be wonderful if, even apart from such facilities as legislation has allowed, and assuming that there was one and the same divorce law over all civilized countries, the United States should show, as Switzerland shows in Europe, an exceptionally high percentage of divorces to marriages. Newspapers are more read there than in any other country; and newspapers contain a great deal about matrimonial troubles which would be better left unpublished. The life of the middle class is more full of stir and change and excitement than it is in Europe. Both the process described as the emancipation of women, and the admission of women to various professions and employments formerly confined to men, have gone further there than in Europe. So has the carrying on of industries in factories instead of at home. So has the habit of living in hotels or boarding-houses.

All these conditions are less favourable than were the conditions of a century ago to the maintenance of domestic life on the old lines. And over and above these, there has come that extreme laxity of the law and of judicial procedure which has been already described. Thus we can easily account for the comparative frequency of divorce in the United States, while yet noting, for this is the point of real importance, that the phenomena of the United States are not isolated, but merely the most conspicuous instance of a tendency which is 461at work everywhere, and which springs from some widely diffused features of modern life.

The points of similarity between the history of divorce at Rome and its history in recent times need not be further insisted on. There is, however, one to which I have not yet adverted. At Rome the increase of conjugal infidelity and that of divorce would seem, from such data as law and literature give us, to have gone on together, each fostering the other. Is there any like connexion discoverable now?

This is a question which it appears impossible to answer either generally or for any particular country. There are no statistics available, except for matrimonial causes coming into the Courts, and we can never tell what proportion the offences that are disclosed bear to those which remain hidden. There have been countries where the level of sexual morality was extremely low, at least among the wealthier classes, though no divorce was permitted. There may be countries where the very fact that the level is low keeps down the number of applications to the Court, because the injured party acquiesces and takes his or her revenge in like offences. Common talk, and literature which as regards the past may sometimes represent nothing more than common talk^[231], are unsafe guides, as any one will see who asks himself how much he knows about the moral state of his own country in his own time. He can form some sort of guess about the character of the ‘social set’ 462he moves in, but how little after all does he know about the classes above or below his own! Thus there can be very few persons in England whose means of information entitle them to say that the undoubted increase of divorce cases in our Courts since 1860 represents any decline in the average conjugal morality of the people. As regards the United States, I have heard the most opposite views expressed with equal confidence by persons who ought to have been equally well-informed. Judicial statistics do not prove that infidelity has become more common there, for the largest proportion of divorces granted is for desertion, 38.5 per cent. of the whole, those for infidelity being little more than half of that percentage, or about one-fifth of the whole. At the same time the smallness of this percentage may count for less than might appear, for it is probable that in States where divorce can be obtained for other grounds, less serious and easier to prove than infidelity is, petitioners will, where they have a choice of several charges to make, put forward a less grave charge provided it is sufficient to secure their object. So far as my own information goes, the practical level of sexual morality is at least as high in the United States as in any part of northern or western Europe (except possibly among the Roman Catholic peasantry of Ireland), and experienced judges in America have told me that, odious as they find the divorce work of their courts, the thing which strikes them in the cases they deal with is more frequently the caprice and fickleness, the irritability and querulous discontent of couples who have married on some passing fancy, than a proclivity to breaches of wedded troth.

463Indeed, so far from holding that marriages are more frequently unhappy in the United States than in western Europe, most persons who know both countries hold the opposite to be the case. On the whole, therefore, there seems no ground for concluding that the increase of divorce in America necessarily points to a decline in the standard of domestic morality, except perhaps in a small section of the wealthy class, though it must be admitted that if this increase should continue, it may tend to induce such a decline.

The same conclusion may well be true regarding the greater frequency of divorce all over the world. There is no reason to think that sexual passion leading to conjugal infidelity is any commoner than formerly among mankind. More probably passion is tending to grow rather weaker than it was formerly. But that which we call Individualism, viz. the desire of each person to do what he or she pleases, to gratify his or her tastes, likings, caprices, to lead a life which shall be uncontrolled by another’s will—this grows stronger. So, too, whatever stimulates the susceptibility and sensitiveness of the nervous system tends to make tempers more irritable, and to produce causes of friction between those who are in constant contact. Here is a source of trouble that is likely to grow with the growing strain of life, and with the larger proportion which other interests bear in modern life to those home interests which formerly absorbed nearly the whole of a woman’s thoughts. It is temper rather than unlawful passion that may prove in future the most dangerous enemy to the stability of the marriage relation.

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XXII. Influence of the Church and the Law.

The view of marriage as a tie which the parties intend to enter into for their lives, and which the law holds indissoluble, has hitherto rested not so much on any abstract theory or sentiment which men and women have entertained regarding it as upon the three authorities which have formed both sentiment and opinion. These three are the Church, the State, and Tradition, that is to say the beliefs which people adopt because they have come down from the past. The attitude of the Church has in Protestant nations sensibly altered. In some countries it altered in the sixteenth century. It has everywhere altered in the nineteenth. So, too, the support given to the old view by the State has in like manner become in those same countries much weaker, and in some countries, as for example in Switzerland and many American States, has almost disappeared. Public opinion has itself been largely formed by the Church and the Law, and may, when they have ceased to form it, be no longer an effective guardian of the permanence and dignity of marriage. In such democracies as those of the United States, the wish of an active minority to procure changes in the law easily prevails, because no one cares to resist, and because abstract principles suggest that the more everybody is permitted to do as he pleases, the happier everybody will be. When the law has been changed, public opinion, that is to say the opinion of the majority who do not think seriously about the matter, soon adjusts itself to the new law, and little social blame attaches to those who use 465the licence which the law has granted. Seeing then how largely the law, whether of the Church or of the State, moulds the sentiment of the people on such a subject as this, and seeing that the Church no longer makes or administers law in Protestant countries, one may say that the civil law is practically left to keep their conscience. This tendency of the Church to abnegate its old functions makes the question of the way in which the Law should deal with divorce a question of critical importance^[232].

As regards America, the opinion of the wisest and best informed people, though far from unanimous in points of detail, agrees in thinking that many States have gone too far in the way of laxity.

XXIII. Does the English Law of Divorce need Amendment?

In England the topic has been less discussed; yet there are some who hold that women ought to be placed on the same footing as men, and allowed to obtain a divorce from an unfaithful husband, even if he has not been guilty of cruelty. Others would go even further and admit other grounds as entitling either party to a dissolution of the marriage. The late Lord Hannen, whose opinion was entitled to exceptional weight, for he had presided over the English Divorce Court for many years with singular ability and fairness, told me that he thought the English law might with advantage be somewhat relaxed, so numerous were the 466cases in which it was obviously best that a miserable marriage should be extinguished altogether. Yet the example of the United States (not to speak of Rome) suggests the danger of any but a very slow and cautious advance in that direction. Great as is the hardship of chaining an innocent to a vicious or drunken or brutal consort, the evil of permitting people to get rid of one another merely because they are tired of one another is no less evident. When the question is asked, ‘What is the best divorce law?’ the only answer can be, ‘There is no good divorce law.’ There are some faults in human nature which always have existed and apparently always will exist; and there is no satisfactory method of dealing with them. All that can be done is to choose between different evils.

Upon the whole, after weighing the considerations on both sides, the balance seems to incline to a change in the law which should not only equalize the position of the wife and the husband, by giving the former the same right to dissolution as the latter, but should also allow dissolution in cases of hopeless lunacy and of long-continued desertion.

Throughout this discussion it has been assumed that marriages ought to be permanent, and that obstacles should be thrown in the way of those who seek to dissolve them. It may be asked whether this assumption is justified. There is a school of thought, small perhaps, but of long standing and supported by a few eminent names, which insists that marriage should last no longer than love does; and therefore that the pair should, as in Rome, be permitted to separate with freedom of re-marriage, whenever they are no longer 467held together by inclination. There is also a larger school, which feels so keenly the misery caused by ill-assorted unions as to think that the parties should be allowed to dissolve them, when certain terms for reflection and repentance prescribed by law have been completed.

I do not propose to argue afresh this question, for it has been often and copiously argued. Yet it is not a question to be dismissed without argument, for in our day no moral or religious dogma, however long established or widely held, is permitted to rest upon authority alone. But to argue it fully would draw us far from the historical inquiry we have been engaged on. It is enough to indicate in a word or two the main grounds which have in fact led the vast majority of thoughtful men to the assumption aforesaid. The first of these is the interest of children. Few things can be more harmful to the moral well-being of the offspring of a marriage than the divorce of their parents, which destroys one or other of the two best influences that work on childhood and may poison even the influence that is left. The next is the fact that, though it is professedly in the interest of suffering wives that facility of divorce is usually advocated, such facility tends to the injury of wives even more than of husbands, because men are, it would seem, more fickle and more prone to seek the dissolution of marriage when they are tired of their partner, or have formed some illicit connexion, or seek to marry some other woman. The third is that whatever weakens the conception of the marriage tie as a permanent one strikes at the whole character and essence of the marriage relation. It is 468often said that when people know they have got to live together, they are forced to exercise the self-control necessary to enable them to live together. But the moral effect of the sense of permanence in wedded union goes deeper than this. It is in the complete identification of the two beings and the two lives that the true happiness of a happy marriage lies. The sense that each has absolutely committed himself or herself to the other—each taking charge of the joys and sorrows and hopes of the other, each trusting to the other his or her joys and sorrows and hopes—gives to the relation an incomparable sanctity, and makes the strongest possible appeal to the best feelings of each. If selfishness and falsehood can be overcome by anything, it is by calling into action the sense of obligation to fulfil this trust which the enduring nature of the union is calculated to inspire. Were the union to cease to be thought of as enduring, were it to be in the minds of the parties, as their minds are moulded by the practice and the prevailing notions of society, merely the result and expression of a possibly transient passion, or of the willingness to try the experiment of a joint household, the sanctity and the sense of obligation would receive an irreparable blow.

Thus we are driven to the conclusion that numerous as the cases may be in which, if one looked only at the wretchedness of the parties to an ill-assorted union, one might desire to see that union dissolved, more harm than good may on the whole result from permitting the parties to dissolve their union at their pleasure, as the later Romans did, as the French did during the Revolution, and as some American States practically do to-day; 469and more harm than good may result even from extending in large measure the opportunities for divorce which the law of England or that of Scotland at this moment affords.

How vital to the future of humanity are the interests involved is admitted on all hands by those who would change, as well as by those who would uphold, the conception of marriage as a permanent relation. Great as is the contrast between that sensual and unworthy view which finds its expression in the polygamy of the East and the view which Christianity has formed among Western peoples, it is hardly greater than that which exists between the view of marriage as a life-union, dissoluble only when infidelity has shattered its basis, and the view which puts it at the mercy of the caprice of a volatile nature or the temper of an irritable one. Polygamy has been and remains a blighting influence on Musulman society, and on the character of individual Musulmans. So if marriage were to become a transitory relation, as it practically was among the upper classes in the Roman Empire, the effects upon family life and on the character of men and women would in the long run be momentous.

XXIV. Some General Reflections: Changes in Theory and in Sentiment regarding Marriage.

A few words more to sum up the general result of our survey. We have seen that the relations of the wife to the husband have been regulated sometimes by one, sometimes by the other of two systems, which have 470been called those of Subordination and Equality^[233]. In all countries custom and law begin with the system of Subordination. In some, the wife is little better than a slave. Even at Rome, though she was not only free but respected, her legal capacity was merged in her husband’s.

This system vanishes from Rome during the last two centuries of the Republic, and when the law of Rome comes to prevail over the whole civilized world, the system of Equality (except so far as varied by local custom) prevails over that world till the Empire itself perishes.

In the Dark Ages the principle of the subordination of the wife is again the rule everywhere, though the forms it takes vary, and it is more complete in some countries than in others. It was the rule among the Celtic and Teutonic peoples before they were Christianized. It finds its way, through customs conformable to the rudeness of the times, into the law of those countries which, like Italy, Spain, and France, were only partially Teutonized, and retained forms of Latin speech. It holds its ground in England till our own time, though latterly much modified by the process which we call the emancipation of women, a process which, under the influence of democratic ideas, has moved most swiftly and has gone furthest among the English 471race in North America. But in our own time the principle of equality has, in most civilized countries, triumphed all along the line, and so far as we can foresee, has definitely triumphed. One must imagine a complete revolution in ideas and in social habits in order to imagine a return to the system of Subordination as it stood two centuries ago.

As there have been two systems determining the relations of husband and wife in respect of property and of personal control, so also have there been throughout all history two aspects of the institution of marriage, one in which the sensual and material element has predominated, the other in which the spiritual and religious element has come in to give a higher and refining character to the relation. In this case, however, it is not possible to make the relative importance of these two aspects synchronize with the general progress of civilization, nor even with the elevation of the position of women. It is true that among barbarous and some semi-civilized races the physical side of the institution is almost solely regarded, and that we may suppose a remote age when primitive man was in this respect not much above the level of other animals. But there have been epochs when civilization was advancing while the moral conception of marriage, or at any rate the popular view of marriage as a social relation, was declining. The tie between husband and wife in the earlier days of Rome was not only closer but more worthy and wholesome in its influence on the lives of both than it had become in the age of Augustus. Christianity not only restored to the tie its religious colour, but in dignifying the individual soul by proclaiming 472its immortality and its possibility of union with God through Christ gave a new and higher significance to life as a whole, and to the duties which spring from marriage. The greatest advance which the Christian world made upon the pagan world was in the view of personal purity for both sexes which the New Testament inculcated, a view absent from the Greek and Italian religions and from Greek and Latin literature, though there had been germs of it in the East, where habits of sensual indulgence more degrading than those of the West were opposed by theories of asceticism, which passed into and tinged primitive and mediaeval Christianity.

The more ennobling view of love and of the marriage relation held its ground through the Middle Ages. There was plenty of profligacy—as indeed the ideal and the actual have never been more disjoined than in the Middle Ages. But in spite of profligacy on the one hand, and the glorification of celibacy on the other, and notwithstanding the subjection of women in the matter of property and even of personal freedom, the conception of wedded life as recognized by the law of the Church and enshrined in poetry remained pure and lofty. That the Reformation took away part of the religious halo which had surrounded matrimony may be admitted. Whether this involved a practical loss is a difficult question. It may be that, in their anxiety to be rid of what they deemed superstition, and in their disgust at the tricky and mercenary way in which ecclesiastical lawyers had played fast and loose with the intricate rules of canonical impediment, the Reformers of Germany, Scandinavia, and Scotland forgot 473to dwell sufficiently on the fact that though marriage is a civil relation in point of form and legal effect, it ought to be, to Christians, essentially also a religious relation, the true consecration of which lies not in the ceremonial blessing of the Church, but in the solemnity of the responsibilities it involves. Yet it is not clear that, in point of domestic happiness or domestic purity, the nations which have clung to the mediaeval doctrine stood a century ago, or stand now, above those which had renounced it. General theories regarding the influence of particular forms of religion, like theories regarding the influence of race, are apt to be misleading, because many other conditions have to be regarded as well as those on which the theorist is inclined to dwell.

Whoever regards the doctrines of the Roman Catholic Church respecting marriage and realizes her power over her members will expect to find a higher level of sexual morality in Roman Catholic countries than he will in fact find. So on the other hand will he be disappointed who accepts that view of the superiority in social virtues of peoples of Teutonic stock which finds so much favour among those peoples, for dissolutions of the marriage tie have latterly grown more frequent than they formerly were among Protestant and Teutonic nations, and are apparently less condemned by public opinion than was the case in older days.

The material progress of the world, the mastery of man over nature through a knowledge of her laws, the diffusion of knowledge and of the opportunities for acquiring it, are themes which ceaselessly employ 474the tongues of speakers and the pens of journalists, while they swell with pride the heart of the ordinary citizen. But they are not the things upon which the moral advancement of mankind or the happiness of individuals chiefly turns. They co-exist, as the statistics of recent years show, with an increase over all, or nearly all, civilized countries of lunacy, of suicide, and of divorce.

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