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 have been pronounced in America on the ground of the "cruel and inhuman conduct" of a wife who failed to sew her husband's buttons on, or because a wife "struck plaintiff a violent blow with her bustle," or because a husband does not cut his toe-nails, or because "during our whole married life my husband has never offered to take me out riding. This has been a source of great mental suffering and injury." In many other cases, it must be added, the cruelty inflicted by the husband, even by the wife--for though usually, it is not always, the husband who is the brute--is of an atrocious and heart-rending character (_Report on Marriage and Divorce in the United States_, issued by Hon. Carroll D. Wright, Commissioner of Labor, 1889). But even in many of the apparently trivial cases--as of a husband who will not wash, and a wife who is constantly evincing a hasty temper--it must be admitted that circumstances which, in the more ordinary relationships of life may be tolerated, become intolerable in the intimate relationship of sexual union. As a matter of fact, it has been found by careful investigation that the American courts weigh well the cases that come before them, and are not careless in the granting of decrees of divorce.
In 1859 an exaggerated importance was attached to the gross reasons for divorce, to the neglect of subtle but equally fatal impediments to the continuance of marriage. This was pointed out by Gladstone, who was opposed to making adultery a cause of divorce at all. "We have many causes," he said, "more fatal to the great obligation of marriage, as disease, idiocy, crime involving punishment for life." Nowadays we are beginning to recognize not only such causes as these, but others of a far more intimate character which, as Milton long ago realized, cannot be embodied in statutes, or pleaded in law courts. The matrimonial bond is not merely a physical union, and we have to learn that, as the author of _The Question of English Divorce_ (p. 49) remarks, "other than physical divergencies are, in fact, by far the most important of the originating causes of matrimonial disaster."
In England and Wales more husbands than wives petition for divorce, the wives who petition being about 40 per cent, of the whole. Divorces are increasing, though the number is not large, in 1907 about 1,300, of whom less than half remarried. The inadequacy of the divorce law is shown by the fact that during the same year about 7,000 orders for judicial separation were issued by magistrates. These separation orders not only do not give the right to remarry, but they make it impossible to obtain divorce. They are, in effect, an official permission to form relationships outside State marriage.
In the United States during the years 1887-1906 nearly 40 per cent, of the divorces granted were for "desertion," which is variously interpreted in different States, and must often mean a separation by mutual consent. Of the remainder, 19 per cent, were for unfaithfulness, and the same proportion for cruelty; but while the divorces granted to husbands for the infidelity of their wives are nearly three times as great proportionately as those granted to wives for their husband's adultery, with regard to cruelty it is the reverse, wives obtaining 27 per cent, of their divorces on that ground and husbands only 10 per cent.
In Prussia divorce is increasing. In 1907 there were eight thousand divorces, the cause in half the cases being adultery, and in about a thousand cases malicious desertion. In cases of desertion the husbands were the guilty parties nearly twice as often as the wives, in cases of adultery only a fifth to an eighth part.
There cannot be the slightest doubt that the difficulty, the confusion, the inconsistency, and the flagrant indecency which surround divorce and the methods of securing it are due solely and entirely to the subtle persistence of traditions based, on the one hand, on the Canon law doctrines of the indissolubility of marriage and the sin of sexual intercourse outside marriage, and, on the other hand, on the primitive idea of marriage as a contract which economically subordinates the wife to the husband and renders her person, or at all events her guardianship, his property. It is only when we realize how deeply these traditions have become embedded in the religious, legal, social and sentimental life of Europe that we can understand how it is that barbaric notions of marriage and divorce can to-day subsist in a stage of civilization which has, in many respects, advanced beyond such notions.
The Canon law conception of the abstract religious sanctity of matrimony, when transferred to the moral sphere, makes a breach of the marriage relationship seem a public wrong; the conception of the contractive subordination of the wife makes such a breach on her part, and even, by transference of ideas, on his part, seem a private wrong. These two ideas of wrong incoherently flourish side by side in the vulgar mind, even to-day.
The economic subordination of the wife as a species of property significantly comes into view when we find that a husband can claim, and often secure, large sums of money from the man who sexually approaches his property, by such trespass damaging it in its master's eyes.[339] To a psychologist it would be obvious that a husband who has lacked the skill so to gain and to hold his wife's love and respect that it is not perfectly easy and natural to her to reject the advances of any other man owes at least as much damages to her as she or her partner owes to him; while if the failure is really on her side, if she is so incapable of responding to love and trust and so easy a prey to an outsider, then surely the husband, far from wishing for any money compensation, should consider himself more than fully compensated by being delivered from the necessity of supporting such a woman. In the absence of any false traditions that would be obvious. It might not, indeed, be unreasonable that a husband should pay heavily in order to free himself from a wife whom, evidently, he has made a serious mistake in choosing. But to ordain that a man should actually be indemnified because he has shown himself incapable of winning a woman's love is an idea that could not occur in a civilized society that was not twisted by inherited prejudice.[340] Yet as matters are to-day there are civilized countries in which it is legally possible for a husband to enter a prayer for damages against his wife's paramour in combination with either a petition for judicial separation or for dissolution of wedlock. In this way adultery is not a crime but a private injury.[341] At the same time, however, the influence of Canon law comes inconsistently to the surface and asserts that a breach of matrimony is a public wrong, a sin transformed by the State into something almost or quite like a crime. This is clearly indicated by the fact that in some countries the adulterer is liable to imprisonment, a liability scarcely nowadays carried into practice. But exactly the same idea is beautifully illustrated by the doctrine of "collusion," which, in theory, is still strictly observed in many countries. According to the doctrine of "collusion" the conditions necessary to make the divorce possible must on no account be secured by mutual agreement. In practice it is impossible to prevent more or less collusion, but if proved in court it constitutes an absolute impediment to the granting of a divorce, however just and imperative the demand for divorce may be.
The English Divorce Act of 1857 refused divorce when there was collusion, as well as when there was any countercharge against the petitioner, and the Matrimonial Causes Act of 1860 provided the machinery for guaranteeing these bars to divorce. This question of collusion is discussed by G.P. Bishop (op. cit., vol. ii, Ch. IX). "However just a cause may be," Bishop remarks, "if parties collude in its management, so that in real fact both parties are plaintiffs, while by the record the one appears as plaintiff and the other as defendant, it cannot go forward. All conduct of this sort, disturbing to the course of justice, falls within the general idea of fraud on the court. Such is the doctrine in principle everywhere."
It is quite evident that from the social or the moral point of view, it is best that when a husband and wife can no longer live together, they should part amicably, and in harmonious agreement effect all the arrangements rendered necessary by their separation. The law ridiculously forbids them to do so, and declares that they must not part at all unless they are willing to part as enemies. In order to reach a still lower depth of absurdity and immorality the law goes on to say that if as a matter of fact they have succeeded in becoming enemies to each other to such an extent that each has wrongs to plead against the other party they cannot be divorced at all![342] That is to say that when a married couple have reached a degree of separation which makes it imperatively necessary, not merely in their own interests but in the moral interests of society, that they should be separated and their relations to other parties concerned regularized, then they must on no account be separated.
It is clear how these provisions of the law are totally opposed to the demands of reason and morality. Yet at the same time it is equally clear how no efforts of the lawyers, however skilful or humane those efforts may be, can bring the present law into harmony with the demands of modern civilization. It is not the lawyers who are at fault; they have done their best, and, in England, it is entirely owing to the skilful and cautious way in which the judges have so far as possible pressed the law into harmony with modern needs, that our antiquated divorce laws have survived at all. It is the system which is wrong. That system is the illegitimate outgrowth of the Canon law which grew up around conceptions long since dead. It involves the placing of the person who imperils the theoretical indissolubility of the matrimonial bond in the position of a criminal, now that he can no longer be publicly condemned as a sinner. To aid and abet that criminal is itself an offence, and the aider and abettor of the criminal must, therefore, be inconsequently punished by the curious method of refraining from punishing the criminal. We do not openly assert that the defendant in a divorce case is a criminal; that would be to render the absurdity of it too obvious, and, moreover, would be hardly consistent with the permission to claim damages which is based on a different idea. We hover uncertainly between two conceptions of divorce, both of them bad, each inconsistent with the other, and neither of them capable of being pushed to its logical conclusions.
The result is that if a perfectly virtuous married couple comes forward to claim divorce, they are told that it is out of the question, for in such a case there must be a "defendant." They are to be punished for their virtue. If each commits adultery and they again come forward to claim divorce, they are told that it is still out of the question, for there must be a "plaintiff." Before they were punished for their virtue; now they are to be punished in exactly the same way for their lack of it. The couple must humor the law by adopting a course of action which may be utterly repugnant to both. If only the wife alone will commit adultery, if only the husband will commit adultery and also inflict some act of cruelty upon his wife, if the innocent party will descend to the degradation of employing detectives and hunting up witnesses, the law is at their feet and hastens to accord to both parties the permission to remarry. Provided, of course, that the parties have arranged this without "collusion." That is to say that our law, with its ecclesiastical traditions behind it, says to the wife: Be a sinner, or to the husband: Be a sinner and a criminal--then we will do all you wish. The law puts a premium on sin and on crime. In order to pile absurdity on absurdity it claims that this is done in the cause of "public morality." To those who accept this point of view it seems that the sweeping away of divorce laws would undermine the bases of morality. Yet there can be little doubt that the sooner such "morality" is undermined, and indeed utterly destroyed, the better it will be for true morality.
There is an influential movement in England for the reform of divorce, on the grounds that the present law is unjust, illogical, and immoral, represented by the Divorce Law Reform Union. Even the former president of the Divorce Court, Lord Gorell, declared from the bench in 1906 that the English law produces deplorable results, and is "full of inconsistencies, anomalies and inequalities, amounting almost to absurdities." The points in the law which have aroused most protest, as being most behind the law of other nations, are the great expense of divorce, the inequality of the sexes, the failure to grant divorces for desertion and in cases of hopeless insanity, and the failure of separation orders to enable the separated parties to marry again. Separation orders are granted by magistrates for cruelty, adultery, and desertion. This "separation" is really the direct descendant of the Canon law divorce _a mensa et thoro_, and the inability to marry which it involves is merely a survival of the Canon law tradition. At the present time magistrates--exercising their discretion, it is admitted, in a careful and prudent manner--issue some 7,000 separation orders annually, so that every year the population is increased by 14,000 individuals mostly in the age of sexual vigor, and some little more than children, who are forbidden by law to form legal marriages. They contribute powerfully to the great forward movement which, as was shown in the previous chapter, marks the morality of our age. But it is highly undesirable that free marriages should be formed, helplessly, by couples who have no choice in the matter, for it is unlikely that under such circumstances any high level of personal responsibility can be reached. The matter could be easily remedied by dropping altogether a Canon law tradition which no longer has any vitality or meaning, and giving to the magistrate's separation order the force of a decree of divorce.
New Zealand and the Australian colonies, led by Victoria in 1889, have passed divorce laws which, while more or less framed on the English model, represent a distinct advance. Thus in New Zealand the grounds for divorce are adultery on either side, wilful desertion, habitual drunkenness, and conviction to imprisonment for a term of years.
It is natural that an Englishman should feel acutely sensitive to this blot in the law of England and desire the speedy disappearance of a system so open to scathing sarcasm. It is natural that every humane person should grow impatient of the spectacle of so many blighted lives, of so much misery inflicted on innocent persons--and on persons who even when technically guilty are often the victims of unnatural circumstances--by the persistence of a mediæval system of ecclesiastical tyranny and inquisitorial insolence into an age when sexual relationships are becoming regarded as the sacred secret of the persons intimately concerned, and when more and more we rely on the responsibility of the individual in making and maintaining such relationships.
When, however, we refrain from concentrating our attention on particular countries and embrace the general movement of civilization in the matter of divorce during recent times, there cannot be the slightest doubt as to the direction of that movement. England was a pioneer in the movement half a century ago, and to-day every civilized country is moving in the same direction. France broke with the old ecclesiastical tradition of the indissolubility of matrimony in 1885 by a divorce law in some respects very reasonable. The wife may obtain a divorce on an equality with the husband (though she is liable to imprisonment for adultery), the co-respondent occupies a very subordinate position in adultery charges, and facility is offered for divorce on the ground of simple _injures graves_ (excluding as far as possible mere incompatibility of temper), while the judge has the power, which he often successfully exerts, to effect a reconciliation in private or to grant a decree without public trial. The influence of France has doubtless been influential in moulding the divorce laws of the other Latin countries.
In Prussia an enlightened divorce law formerly prevailed by which it was possible for a couple to separate without scandal when it was clearly shown that they could not live together in agreement. But the German Code of 1900 introduced provisions as regards divorce which--while in some respects more liberal than those of the English law, especially by permitting divorce for desertion and insanity--are, on the whole, retrograde as compared with the earlier Prussian law and place the matter on a cruder and more brutal basis. For two years after the Code came into operations the number of divorces sank; after that the public and the courts adapted themselves to the new provisions (more especially one which allowed divorce for serious neglect of conjugal duties) and the number of divorces began to increase with great rapidity. "But," remarks Hirschfeld, "how painful it has now become to read divorce cases! One side abuses the other, makes accusations of the grossest character, employs detectives to obtain the necessary proofs of 'dishonorable and immoral conduct,' whereas, before, both parties realized that they had been deceived in each other, that they failed to suit each other, and that they could no longer live together. Thus we see that the narrowing of individual responsibility in sexual matters has not only had no practical effect, but leads to injurious results of a serious kind."[343] In England a similar state of things has prevailed ever since divorce was established, but it seems to have become too familiar to excite either pain or disgust. Yet, as Adner has pointed out,[344] it has moved in a direction contrary to the general tendency of civilization, not only by increasing the inquisitorial authority of public courts but by emphasizing merely external causes of divorce and abolishing the more subtle internal causes which constantly grow in importance with the refinement of civilization.
In Austria until recent years, Canon law ruled absolutely, and matrimony was indissoluble, as it still remains for the Catholic population. The results as regards matrimonial happiness were in the highest degree deplorable. Half a century ago Gross-Hoffinger investigated the marital happiness of 100 Viennese couples of all social classes, without choice of cases, and presented the results in detail. He found that 48 couples were positively unhappy, only 16 were undoubtedly happy, and even among these there was only one case in which happiness resulted from mutual faithfulness, happiness in the other cases being only attained by setting aside the question of fidelity.[345] This picture, it is to be hoped, no longer remains true. There is an influential Austrian Marriage Reform Association, publishing a journal called _Die Fessel_, or The Fetter. "One was chained to another," we are told. "In certain circumstances this must have been the worst and most torturing penalty of all. The most bizarre and repulsive couplings took place. There were, it is true, many affectionate companionships of the chain. But there were many more which inflicted an eternity of suffering upon one of the pair." This quotation, it must be added, has nothing to do with what the Canonists, borrowing the technical term for a prisoner's shackles, suggestively termed the _vinculum matrimonii_; it was written many years ago concerning the galleys of the old French convict system. It is, however, recalled to