DIVORCE
“Let the British reader study and enjoy, in simplicity of heart, what
is here presented him, and with whatever metaphysical acumen and
talent for Meditation he is possessed of. Let him try to keep a free,
open sense; cleared from the mists of Prejudice, above all from the
paralysis of Cant.”
_Sartor Resartus_, THOMAS CARLYLE.
The history of any legal reform affecting the lives of the poor
in this country is pathetic reading. It is generally a jumble of
earnest, common-sense petitions from a few obscure social reformers,
listless inattention and masterly inaction from governors and rulers,
accompanied by a choral anthem to the Most High from the bishops,
priests and deacons to leave well alone. If the two latter classes
can keep the former class from rousing popular indignation against
them, then to every one’s content the question is adjourned to another
generation for further consideration.
Certainly the question of divorce reform, which every one who takes
an interest in the social life of the poor knows to be of the deepest
importance to them, has for many centuries followed the stereotyped
course. Fair play to the Church, it was an Archbishop of Canterbury,
Thomas Cranmer, who nearly achieved a Law of moderate divorce reform
in the reign of Edward VI. Unfortunately the matter never got formally
through Parliament, and Cranmer and divorce reform perished together in
the fire over against Balliol College, Oxford.
John Milton occurs to mind as a man of eminence who had ideas on the
subject born of sad experience which might have been of use to our
rulers. He, however, was almost bound to fail to get a hearing at
Whitehall, the makers of our King’s speeches having always--according
to William Cobbett--been very adverse to the expression of ideas
in prose of the Miltonian vintage, and being wont to regard even
the ordinary grammatical construction of the English language with
suspicion.
So the years rolled on. Great men offered the generations they lived
in sane plans of reform which were rejected and neglected, until
of a sudden in 1845 the sarcasm of Mr. Justice Maule in his witty
speech to a poor bigamist at Warwick Assizes, detailing to him how he
ought before re-marrying to have obtained an Act of Parliament for
his divorce, roused the people to the absurdity and injustice of the
existing law, and after a decent interval of years the popular demand
was pacified by the Divorce Act of 1857.
This, however, has been of little use to poor women and of very limited
use to any one, although among the upper and middle classes it has no
doubt relieved many homes from misery. It did not deal with more than
a small percentage of the lives that wanted help, and year by year
obscure people recognized and pleaded for its extension. Once again it
is to the credit of the legal profession that it was a great lawyer and
judge who brought divorce reform into practical politics.
Lord Gorell in 1892 left a big commercial and Admiralty practice to
become judge of the Probate, Divorce and Admiralty Division, and there
he brought to bear on problems of divorce a mind singularly free from
the ecclesiastical prejudices which surround the first two-thirds of
the Division and a breezy outlook on human affairs that maybe he had
learned from his professional associations with those who go down to
the sea in ships.
Lord Gorell, when as Sir John Barnes he took his seat in the Probate
Division, was only forty-four years old, and as far as I have heard
had no preconceived ideas about divorce reform. The conclusions
he ultimately came to sprang from experience. No one who is not
case-hardened in ecclesiastic tradition could preside in the Divorce
Division without having visions of reform.
The first message that the public received from Lord Gorell as divorce
reformer was in the judgment he delivered in Dodd _v._ Dodd, in April,
1906. In this case a wife, whose husband, a drunken wastrel, was living
upon her and doing no work, obtained a separation order from him
before the magistrates, and after two years, finding he had committed
adultery, she petitioned for a divorce. This it was decided she could
not have because her husband had never technically deserted her.
If he had been an honest man, who had run off with another woman to
escape from a shrew, the lady could have divorced him, but there was
no machinery for an honest woman, whose husband was a drunken loafer
wishing to live on his wife’s means and committing adultery, to obtain
a divorce.
But the important part of the judgment socially was that Sir John
Barnes called public attention to what the legislature had done in
giving the magistrates these wide powers of granting separation orders.
The Summary Jurisdiction Act (Married Women), 1895 had been passed
through Parliament in modern fashion “almost without anything being
said about it--although it gave power to grant non-cohabitation orders
in large classes of cases where it did not exist before.” The result
had been that numerous orders had been made, over 7,000 in that year,
affecting the whole future lives of the parties and their children
without any real consideration for the interests of the children,
and Sir John Barnes then and there stated his view: “That the direct
tendency of these orders appears to be to encourage immorality and to
produce deplorable results.”
This is a system of which the Archbishop of York and his colleagues
in the Minority Report of the Divorce Commission say: “On the whole
the present system of separation orders, while in need of considerable
amendment, probably fulfils its purpose fairly well.” To the plain
unarchiepiscopal man in the street, unless it is to be presumed that
the system is there to promote adultery in man, misery in woman and
injustice to children, the judgment of the President of the Divorce
Court makes it clear that the present system of separation orders
probably fulfils its purpose very badly.
It seems probable that the researches Lord Gorell made in preparing his
learned and inspiring judgment in Dodd _v._ Dodd proved to his mind the
urgent necessity of divorce reform. He moved, however, with caution,
and it was not until July 14, 1909, that he made his great speech in
the House of Lords on a resolution that it was expedient to confer
divorce jurisdiction upon County Courts in the interest of the poorer
classes.
If I had the means I would like to reprint that speech and place it
in the hands of every citizen. It was never answered, for there is no
answer to be made to it, and at the end of the debate Lord Lansdowne
got up and said: “Justice is not difficult to do when you know the
facts. My lords, let us have an inquiry and ascertain the facts.”
There was no need of an inquiry. Any one who has passed the necessary
standards, be he peer or peasant, could read all about it in official
returns, statistics, treatises and books on social reform. Still we
have had the inquiry, we have ascertained the facts, and yet we are as
far away from justice as ever we were.
When the Royal Commission first sat I prophesied that there would
be an intolerable deal of talk, but very little business done, and
that the chief opposition to any schemes of justice and mercy to
the unhappily married would come from the highly-paid clergy and the
ecclesiastically-minded laymen.
I take no pleasure in the mean and melancholy triumph of saying “I told
you so.” It did not take much foresight to guess that indifference,
inertia, and clericalism would win the first few rounds of the fight.
What does require a certain amount of steadfastness is to keep your eye
on the horizon and continue in the belief that right will ultimately
prevail, and go on doing your bit to bring it about.
The years spent on the Royal Commission on Divorce, although they
taught the world nothing it did not know before, were not years wholly
wasted. The conclusions arrived at were not important, but the evidence
of the witnesses telling their stories of ruined lives and desolated
homes is there to refer to.
These volumes are of value as an armoury of weapons of facts. The next
task is to use them.
The poor in this country have very little power to state their
grievances and get them remedied, but Women are in a different case.
When the Law and the Woman come up against each other I am not backing
the Law, except at long odds with a short time limit. If Woman has made
up her mind that Divorce reform is necessary, then we may make up our
minds that Divorce reform will come along.
A large number of women gave evidence before the Commission, and I have
been reading that evidence again. Women doctors, women of position
who work in police courts and visit in the slums, women on Boards of
Guardians--in a word, all the women who go out into the world and work
and see the world as it is--favour reform of some kind.
Generally the reforms they propose are similar to those ultimately
suggested in the Majority Report, namely, that the two sexes should
be placed on an equal footing as regards the grounds on which divorce
should be obtained, and that divorce should be granted for adultery,
desertion, insanity, habitual drunkenness, and long imprisonment.
A few ladies gave evidence on the clerical side, the general effect
of which was that there was no demand for reform. One of these good
persons had heard so little about the real lives of the poor she
visited, that on being asked her opinion about the effect of separation
orders, she murmured: “I am afraid I do not know exactly what a
separation order is.”
One cannot weigh evidence of that kind against the thoughtful and
knowledgeable statements of Dr. Helen Webb, Dr. Ethel Bentham and Miss
Margaret Llewellyn Davies. If any one wants proof that Woman is capable
of holding her own and doing work of great value in a discussion of
legal reform let him read the evidence of these ladies.
Miss Llewellyn Davies had made a detailed investigation of the views
and wishes of real working women. She proved conclusively that many
intelligent working women are living in a strong hope that reform will
come, that they universally condemn the inequality in the grounds for
divorce for men and women, and that they believe, knowing the facts as
they do, that divorce reform will destroy much wrong and suffering and
will ultimately tend to the happiness and stability of married life.
Few could read the pages of actual cases she sets out without having
his faith in the omnipotence of bishops slightly shaken.
The Archbishop of York in the Minority Report, though agreeing that
her evidence must be “reckoned with seriously,” makes the suggestion
that “personal bias” might in her case be sufficient to put such a
witness out of Court. Why? Miss Davies is the daughter of a well-known
divine of the Church of England, and has spent her life ministering
to the poor. She is not paid a salary running to thousands of pounds.
The State gives her no palace to live in. Where is her “personal bias”
unless the words connote knowledge of the facts and intimate contact
with the lives of poor women? For a priest to charge lay women workers
with being biassed witnesses shows a forgetfulness of the words of the
Master concerning motes and beams.
Dr. Ethel Bentham again speaking for the Fabian women’s group set out
very clearly the method in which divorce reform should be pursued. In
framing new laws, “the starting point,” she said, “should be ordinary
principles of justice and equity without regard to expediency or vested
interests of any kind, whether of the rich or of one sex against
the other, or of any trade, profession or calling, and especially
we feel that no section of the religious world, however numerous or
influential, should be able through the law of the land to impose
burdens on the conscience of other sections who think differently.”
Again read Dr. Helen Webb’s plea for the children and consider in your
own mind whether there be any answer to it. “The continuance of any
marriage,” she writes, “which is physically and morally injurious to
the offspring is a menace to society and calls for greater facility of
divorce in all cases. Conventionally it is thought a dreadful thing for
children if their parents are divorced and it is regarded as a slur
on them and injurious for life, whereas in a great many instances the
continuance of a wrong marriage keeps up such a state of friction and
discord in the environment of the child in its home and everyday life
as will do far more fundamental injury to its character and prospects.
The birth of more children is also under such circumstances so highly
undesirable that it is for the good of the offspring that there should
be a divorce between incompatible parents or diseased parents.”
When the Majority came to report on the pages of clerical evidence that
was laid before them we begin to see where the personal bias really
lies. It is worth while to set out the Majority finding at length:--
“Having adverted to this difference of ecclesiastical opinion, we
think we should point out as a striking feature of the evidence that
theological difficulties have weighed little with the great mass of
the lay witnesses, and, that among those who feel them there are great
differences of opinion. With few exceptions the lay witnesses pass
them by, as if they concerned theologians rather than the practical
legislator. English laymen seem generally to base their views, not
upon ecclesiastical tradition or sentiment, but upon general Christian
principles, coupled with common sense and experience of the needs of
human life.”
“It has to be remembered that members of Christian Churches are not
alone concerned in the matters which form the subject of our inquiry.
There are large numbers of persons, subject to the State, who do not
belong to any Christian communion, or are only nominally Christians,
and are not interested in the theological points upon which opinions
have been expressed before us.
“The result is that we are unable to find any general consensus of
Christian opinion which would exclude any of the questions stated above
from being freely considered. In view of the conflict of opinion which
has existed in all ages and in all branches of the Christian Church
among scholars and divines equally qualified to judge, and the fact
that the State must deal with all its citizens, whether Christian,
nominally Christian, or non-Christian, our conclusion is that we
must proceed to recommend the Legislature to act upon an unfettered
consideration of what is best for the interest of the State, society
and morality, and for that of parties to suits and their families.”
We must go back to these brave words when legislation comes along if we
have any political sense left in us. The evidence shows that whilst the
women witnesses, workers among the poor, were thinking of the misery
of women and the sufferings of “little children,” the majority of
priests were hampering the Commission with their considered judgments
about the Codex Bezæ Cantabrigiensis and the School of Shammai, and
the world may be thankful that the majority of the commissioners very
wisely listened to the women and refused to have any truck with the
theologians.
The Majority Report has indeed only told us what every one who thought
about the matter knew before. When the lives of men and women are
wrecked we ought to throw them what life-belt we can. For their
children--the new citizens of the State--our clear duty is to endeavour
to bring them into better and purer surroundings. And to carry out
these great purposes it is something that a majority of a Royal
Commission has reported to this Christian country that her churches
can give us no help or guidance until they cease to wander in the idle
groves of dogmatic theology and come out into the streets to talk to us
of the Master’s message of love to existing human beings.
Until grievances are put before you, and the private sorrows of your
neighbours are revealed, you cannot in the nature of things become
aware that reform of the law is necessary. Happily married working
women do not trouble their heads about divorce, having many pleasanter
things to think about. People in social health do not want law any more
than people in physical health want medicine. The best parish priest
I ever knew used to snub any member of his flock very cheerfully who
came bleating to him about his soul. “A healthy Christian,” he would
say, “doesn’t need to talk about his soul any more than a healthy man
wants to talk about his liver.”
It is just the same about divorce reform. Divorce Law is in the nature
of things ambulance law, salvage law, law to save wrecked lives and
ruined homes. In times of domestic peace and joyous family life it
would be unhealthy for young husbands and wives to run about, as these
clerical ladies expect them to do, shouting for reform of Divorce Law.
But for our rulers and governors, and for those of us who have time
and opportunity to devote to the study of social questions, other
considerations prevail. We cannot shut our eyes to the degradation and
misery of men, women, and children under the present Divorce Laws. We
see the rocket go up, we hear the cries of the victims, and we know
that our life-boat is water-logged. There are only two courses open
to us. We can go down on our knees with the higher clergy and thank
Providence for a rotten boat; or we can rouse up the Man in the Street
to subscribe for a new one.
How can it be to the best interests of children to live in a household
of friction and disorder, which is the natural outcome of married life
under such conditions? The everyday life of a child in a home of this
kind must do grave injury to its character and prospects in life. Then,
too, the State has a right to consider how highly undesirable it must
be that further children should be brought into such a life.
The most hopeful way, therefore, of discussing questions of divorce
seems to me to bear in mind that the Family is the social unit, that
marriage which does not result in happy family life has failed to serve
its purpose, and when there is a chance of putting an end to the misery
of children, women, or men, and of remedying human mistakes, the State
should take the matter in hand and deal with it in a common-sense,
business way, as a matter of moral sanitation.
There is no doubt that a real fear exists among good people that
divorce made too easy would be an evil thing for the community. This
feeling, very right and natural in itself, springs from our sacred
regard for family life. It seems to some people logical to say that
if it were cheap to obtain divorce, and the grounds for it were
multiplied, every one would be rushing for freedom, and homes would be
rashly broken up.
I cannot allow this prophecy to make my flesh creep. It is based on the
suggestion that there are in the country a large number of husbands
and wives who only continue to live together because the law compels
them to. Frankly, I do not believe it. I may be an optimist, but I do
not foresee husbands and wives taking advantage hastily of a greater
freedom in divorce. Married life may not be all that every fancy
painted it in the springtime of youth, or all that it should be; but,
after all, what is there that is better?
Montaigne told his countrymen that “there is a certain nation where the
enclosures of gardens and fields they would preserve are only made of a
string of cotton, and so fenced are more firm and secure than by our
hedges and ditches.” From this he proceeds to argue that desires are
really augmented by difficulties, and that the freedom to do a thing
does not by any means encourage folk to do it, but, on the contrary,
rather puts them off, as it were. “What you may is displeasing; what is
forbidden whets the appetite.” And as an instance of what he means he
refers to the Roman laws, which gave the fullest liberty of divorce,
yet no married person made use of them for over five hundred years.
I do not fear for a moment the clerical bogey of an England wallowing
in vice and immorality owing to extended facilities for divorce. I have
investigated too many clerical bogeys, and know the turnips from which
the lantern is made, and recognize the vicarage pitchfork underneath
the surplice waving in the moonshine. On the other hand, I am ready to
back my own prophecy that reasonable divorce reform and cheap tribunals
will mean less degradation and misery, purer and better lives and
happier homes.
Very interesting evidence was given on this very subject by Fru Ella
Ankers, of Norway, where they have an extended divorce system going far
beyond anything we propose for our country.
Without setting out the law in detail, it is sufficient to state that
if husband and wife choose to separate for three years that becomes a
divorce without decree at the end of the period. This, of course, is
divorce by consent.
There is one very good point about Norwegian divorce that might
well be introduced into this country, and that is that before the
Courts will consider certain cases they insist on a mediator seeing
the parties and trying to reconcile them. Once, however, it becomes
clear that the case is not one for reconciliation, then either with or
without a decree divorce comes about very readily.
Now here we have a western European people, not wholly unlike our own,
experimenting in divorce in a way that would horrify most of us. One
would expect the evidence to show a very large percentage of divorces
as against other nations where the rules are stricter. But this is not
so at all, and Fru Ella Ankers tells us that the mere fact that divorce
is so easily attainable makes the Norwegian husband better mannered,
and the Norwegian wife more sweet tempered and more forgiving.
And this I believe to be no fiction. I can well imagine a Norwegian
husband hesitating to express his views about the cold mutton
taking its third encore when he knows that his good lady may resent
his rudeness and get up and leave his table for ever. Also it is
conceivable though less probable that a Norwegian wife might hesitate
at an unnecessary and extravagant hat if she feared it would frighten
her husband out of the house.
Be this as it may, enough has been done in Norway to show us that
divorce reform does not mean decadence and race degeneration.
The Law in this matter owes long outstanding debts to Woman, and
the community may hope that in the near future Woman will enforce
payment. For only through divorce reform can we attain that pure and
honest condition of family life which is essential to the progress and
happiness of the nation.