4. Does the absolute prohibition of divorce where it exists contribute
to the moral purity of society?
Editor North American Review,
Introduction by the Rev. S. W. Dike, LL.D.
I AM to introduce this discussion with some facts and make a few
suggestions upon them. In the dozen years of my work at this problem I
have steadily insisted upon a broad basis of fact as the only foundation
of sound opinion. We now have a great statistical advance in the report
of the Department of labor. A few of these statistics will serve the
present purpose.
There were in the United States 9,937 divorces reported for the year
1867 and 25,535 for 1886, or a total 328,716 in the twenty years. This
increase is more than twice as great as the population, and has been
remarkably uniform throughout the period. With the exception of New
York, perhaps Delaware, and the three or four States where special
legislative reforms have been secured, the increase covers the
country and has been more than twice the gain in population. The South
apparently felt the movement later than the North and West, but its
greater rapidity there will apparently soon obliterate most existing
differences. The movement is well-nigh as universal in Europe as here.
Thirteen European countries, including Canada, had 6,540 divorces in
1876 and 10,909 in 1886--an increase of 67 per cent. In the same period
the increase with us was 72.5 per cent. But the ratios of divorce
to population are here generally three or four times greater than in
Europe. The ratios to marriage in the United States are sometimes as
high as 1 to 10, 1 to 9, or even a little more for single years. In
heathen Japan for three years they were more than 1 to 3. But divorce
there is almost wholly left to the regulation of the family, and
practically optional with the parties. It is a re-transference of the
wife by a simple writing to her own family.
1. The increase of divorce is one of several evils affecting the family.
Among these are hasty or ill-considered marriages, the decline of
marriage and the decrease of children,--too generally among classes
pecuniarily best able to maintain domestic life,--the probable increase
in some directions of marital infidelity and sexual vice, and last, but
not least, a tendency to reduce the family to a minimum of force in the
life of society. All these evils should be studied and treated in their
relations to each other. Carefully-conducted investigations alone can
establish these latter statements beyond dispute, although there can be
little doubt of their general correctness as here carefully made. And
the conclusion is forced upon us that the toleration of the increase
of divorce, touching as it does the vital bond of the family, is so far
forth a confession of our western civilization that it despairs of
all remedies for ills of the family, and is becoming willing, in great
degree, to look away from all true remedies to a dissolution of the
family by the courts in all serious cases. If this were our settled
purpose, it would look like giving up the idea of producing and
protecting a family increasingly capable of enduring to the end of its
natural existence. If the drift of things on this subject during the
present century may be taken as prophetic, our civilization moves in an
opposite direction in its treatment of the family from its course with
the individual.
2. Divorce, including these other evils related to the family, is
preeminently a social problem. It should therefore be reached by all
the forces of our great social institutions--religious, educational,
industrial, and political. Each of these should be brought to bear on it
proportionately and in cooperation with the others. But I can here take
up only one or two lines for further suggestion.
3. The causes of divorces, like those of most social evils, are
often many and intricate. The statistics for this country, when the
forty-three various statutory causes are reduced to a few classes, show
that 20 per cent, of the divorces were based on adultery, 16 on cruelty,
38 were granted for desertion, 4 for drunkenness, less than 3 for
neglect to provide, and so on. But these tell very little, except that
it is easier or more congenial to use one or another of the statutory
causes, just as the old "omnibus clause," which gave general discretion
to the courts in Connecticut, and still more in some other States, was
made to cover many cases. A special study of forty-five counties in
twelve States, however, shows that drunkenness was a direct or indirect
cause in 20.1 per cent, of 29,665 cases. That is, it could be found
either alone or in conjunction with others, directly or indirectly, in
one-fifth of the cases.
4. Laws and their administration affect divorce. New York grants
absolute divorce for only one cause, and New Jersey for two. Yet New
York has many more divorces in proportion to population, due largely to
a looser system of administration. In seventy counties of twelve States
68 per cent, of the applications are granted. The enactment of a more
stringent law is immediately followed by a decrease of divorces, from
which there is a tendency to recover. Personally, I think stricter
methods of administration, restrictions upon remarriage, proper delays
in hearing suits, and some penal inflictions for cruelty, desertion,
neglect of support, as well as for adultery, would greatly reduce
divorces, even without removing a single statutory cause. There would
be fewer unhappy families, not more. For people would then look to real
remedies instead of confessing the hopelessness of remedy by appeals to
the courts. A multitude of petty ills and many utterly wicked frauds
and other abuses would disappear. "Your present methods," said a
Nova Scotian to a man from Maine a few years ago, "are simply ways of
multiplying and magnifying domestic ills." There is much force in this.
But let us put reform of marriage laws along with these measures.
5. The evils of conflicting and diverse marriage and divorce laws are
doing immense harm. The mischief through which innocent parties are
defrauded, children rendered illegitimate, inheritance made uncertain,
and actual imprisonments for bigamy grow out of divorce and remarriage,
are well known to most. Uniformity through a national law or by
conventions of the States has been strongly urged for many years.
Uniformity is needed. But for one, I have long discouraged too early
action, because the problem is too difficult, the consequences too
serious, and the elements of it still too far out of our reach for any
really wise action at present. The government report grew immediately
out of this conviction. It will, I think, abundantly justify the
caution. For it shows that uniformity could affect at the utmost only a
small percentage of the total divorces in the United States. _Only 19.9
percent of all the divorced who were married in this country obtained
their divorces in a different State from the one in which their marriage
had taken place, in all these twenty years, 80.1 per cent, having been
divorced in the State where married_. Now, marriage on the average lasts
9.17 years before divorce occurs, which probably is nearly two-fifths
the length of a married life before its dissolution by death. From this
19.9 per cent, there must, therefore, be subtracted the large migration
of married couples for legitimate purposes, in order to get any fair
figure to express the migration for divorce. But the movement of the
native population away from the State of birth is 22 or 23 per cent.
This, however, includes all ages. For all who believe that divorce
itself is generally a great evil, the conclusion is apparently
inevitable that the question of uniformity, serious as it is, is a very
small part of the great legal problem demanding solution at our hands.
This general problem, aside from its graver features in the more
immediate sphere of sociology and religion, must evidently tax our
publicists and statesmen severely. The old temptation to meet special
evils by general legislation besets us on this subject. I think
comparative and historical study of the law of the family, (the
_Familienrecht_ of the Germans), especially if the movement of European
law be seen, points toward the need of a pretty comprehensive and
thorough examination of our specific legal problem of divorce
and marriage law in this fuller light, before much legislation is
undertaken.
Samuel W. Dike.
However much men may differ in their views of the nature and attributes
of the matrimonial contract, and in their concept of the rights and
obligations of the marriage state, no one will deny that these are grave
questions; since upon marriage rests the family, and upon the family
rest society, civilization, and the highest interests of religion and
the state. Yet, strange to say, divorce, the deadly enemy of marriage,
stalks abroad to-day bold and unblushing, a monster licensed by the laws
of Christian states to break hearts, wreck homes and ruin souls. And
passing strange is it, too, that so many, wise and far-seeing in less
weighty concerns, do not appear to see in the evergrowing power of
divorce a menace not only to the sacredness of the marriage institution,
but even to the fair social fabric reared upon matrimony as its
corner-stone.
God instituted in Paradise the marriage state and sanctified it. He
established its law of unity and declared its indissolubility. By divine
authority Adam spoke when of his wife he said: "This now is bone of my
bones, and flesh of my flesh; she shall be called woman, because she
was taken out of man. Wherefore a man shall leave father and mother, and
shall cleave to his wife: and they shall be two in one flesh."*
* Gen., ii., 23-24.
But like other things on earth, marriage suffered in the fall; and
little by little polygamy and divorce began to assert themselves against
the law of matrimonial unity and indissolubility. Yet the ideal of the
marriage institution never faded away. It survived, not only among the
chosen people, but even among the nations of heathendom, disfigured
much, 'tis true, but with its ancient beauty never wholly destroyed.
When, in the fullness of time, Christ came to restore the things
that were perishing, he reasserted in clear and unequivocal terms the
sanctity, unity, and indissolubility of marriage. Nay, more. He gave to
this state added holiness and a dignity higher far than it had "from the
beginning." He made marriage a sacrament, made it the type of his own
never-ending union with his one spotless spouse, the church. St. Paul,
writing to the Ephesians, says: "Husbands, love your wives, as Christ
also loved the church, and delivered himself up for it, that he might
sanctify it, cleansing it by the laver of water in the word of life,
that he might present it to himself a glorious church, not having spot
or wrinkle, or any such thing, but that it should be holy and without
blemish. So also ought men to love their wives as their own bodies....
For this cause shall a man leave his father and mother, and shall cleave
to his wife, and they shall be two in one flesh."*
* Ephes., v., 25-31.
In defence of Christian marriage, the church was compelled from the
earliest days of her existence to do frequent and stern battle. But
cultured pagan, and rough barbarian, and haughty Christian lord were
met and conquered. Men were taught to master passion, and Christian
marriage, with all its rights secured and reverenced, became a ruling
power in the world.
The Council of Trent, called, in the throes of the mighty moral upheaval
of the sixteenth century, to deal with the new state of things, again
proclaimed to a believing and an unbelieving world the Catholic doctrine
of the holiness, unity, and indissolubility of marriage, and the
unlawfulness of divorce. The council declared no new dogmas: it simply
reaffirmed the common teaching of the church for centuries. But some
of the most hallowed attributes of marriage seemed to be objects of
peculiar detestation to the new teachers, and their abolition was
soon demanded. "The leaders in the changes of matrimonial law," writes
Professor Woolsey, "were the Protestant reformers themselves, and that
almost from the beginning of the movement.... The reformers, when they
discarded the sacramental view of marriage and the celibacy of the
clergy, had to make out a new doctrine of marriage and of divorce."*
The "new doctrine of marriage and of divorce," pleasing as it was to the
sensual man, was speedily learned and as speedily put in practice. The
sacredness with which Christian marriage had been hedged around began to
be more and more openly trespassed upon, and restive shoulders wearied
more and more quickly of the marriage yoke when divorce promised freedom
for newer joys.
To our own time the logical consequences of the "new doctrine" have
come. To-day "abyss calls upon abyss," change calls for change, laxity
calls for license. Divorce is now a recognized presence in high life and
low; and polygamy, the first-born of divorce, sits shameless in palace
and in hovel. Yet the teacher that feared not to speak the words of
truth in bygone ages is not silent now. In no uncertain tones, the
church proclaims to the world to-day the unchangeable law of the strict
unity and absolute indissolubility of valid and consummated Christian
marriage.
To the question then, "Can divorce from the bond of marriage ever be
allowed?" the Catholic can only answer no.
* "Divorce and Divorce Legislation," by Theodore D. Woolsey,
2d Ed., p. 126.
And for this no, his first and last and best reason can be but this:
"_Thus saith the Lord_."
As time goes on the wisdom of the church in absolutely forbidding
divorce from the marriage bond grows more and more plain even to the
many who deny to this prohibition a divine and authoritative sanction.
And nowhere is this more true than in our own country. Yet our
experience of the evils of divorce is but the experience of every people
that has cherished this monster.
Let us take but a hasty view of the consequences of divorce in ancient
times. Turn only to pagan Greece and Rome, two peoples that practised
divorce most extensively. In both we find divorce weakening their
primitive virtue and making their latter corruption more corrupt. Among
the Greeks morality declined as material civilization advanced. Divorce
grew easy and common, and purity and peace were banished from the family
circle. Among the Romans divorce was not common until the latter days of
the Republic. Then the flood-gates of immorality were opened, and, with
divorce made easy, came rushing in corruption of morals among both sexes
and in every walk of life. "Passion, interest, or caprice," Gibbon, the
historian, tells us, "suggested daily motives for the dissolution
of marriage; a word, a sign, a message, a letter, the mandate of a
freedman, declared the separation; the most tender of human connections
was degraded to a transient society of profit or pleasure."* Each
succeeding generation witnessed moral corruption more general, moral
degradation more profound; men and women were no longer ashamed of
licentiousness; until at length the nation that became mighty because
built on a pure family fell when its corner-stone crumbled away in
rottenness.
* "Decline and Fall of the Roman Empire," Milman's Ed., Vol.
III., p. 236.
Heedless of the lessons taught by history, modern nations, too, have
made trial of divorce. In Europe, wherever the new gospel of marriage
and divorce has had! notable influence, divorce has been legalized; and
in due proportion to the extent of that influence causes for divorce
have been multiplied, the bond of marriage more and more recklessly
broken, and the obligations of that sacred state more and more
shamelessly disregarded. In our own country the divorce evil has grown
more rapidly than our growth and strengthened more rapidly than our
strength. Mr. Carroll D. Wright, in a special report on the statistics
of marriage and divorce made to Congress in February, 1889, places the
number of divorces in the United States in 1867 at 9,937, and the number
in 1886 at 25,535. These figures show an increase of the divorce evil
much out of proportion to our increase in population. The knowledge that
divorces can easily be procured encourages hasty marriages and
equally hasty preparations. Legislators and judges in some States
are encouraging inventive genius in the art of finding new causes for
divorce. Frequently the most trivial and even ridiculous pretexts are
recognized as sufficient for the rupture of the marriage bond; and
in some States divorce can be obtained "without publicity," and even
without the knowledge of the defendant--in such cases generally an
innocent wife. Crime has sometimes been committed for the very purpose
of bringing about a divorce, and cases are not rare in which plots have
been laid to blacken the reputation of a virtuous spouse in order
to obtain legal freedom for new nuptials. Sometimes, too, there is a
collusion between the married parties to obtain divorce. One of them
trumps up charges; the other does not oppose the suit; and judgment is
entered for the plaintiff. Every daily newspaper tells us of divorces
applied for or granted, and the public sense of decency is constantly
being shocked by the disgusting recital of of divorce-court scandals.
We are filled with righteous indignation at Mormonism; we brand it as
a national disgrace, and justly demand its suppression. Why? Because,
forsooth, the Mormons are polygamists. Do we forget that there are
two species of polygamy--simultaneous and successive? Mormons practise
without legal recognition the first species; while among us the second
species is indulged in, and with the sanction of law, by thousands in
whose nostrils Mormonism is a stench and an abomination. The Christian
press and pulpit of the land denounce the Mormons as "an adulterous
generation," but too often deal very tenderly with Christian
polygamists. Why? Is Christian polygamy less odious in the eyes of God
than Mormon polygamy? Among us, *tis true, the one is looked upon as
more respectable than the other. Yet we know that the Mormons as a
class, care for their wives and children; while Christian polygamists
but too often leave wretched wives to starve, slave, or sin, and
leave miserable children a public charge. "O divorced and much-married
Christian," says the polygamous dweller by Salt Lake, "pluck first the
beam from thy own eye, and then shalt thou see to pluck the mote from
the eye of thy much-married, but undivorced, Mormon brother." It follows
logically from the Catholic doctrine of the unity and indissolubility
of marriage, and the consequent prohibition of divorce from the marital
bond, that no one, even though divorced _a vinculo_ by the civil power,
can be allowed by the church to take another consort during the lifetime
of the true wife or husband, and such connection the church can but hold
as sinful. It is written: "Whosoever shall put away his wife and marry
another committeth adultery against her. And if the wife shall put away
her husband, and be married to another, she committeth adultery."*
* Mark, x., ii, 12.
Of course, I am well aware that upon the words of our Saviour as found
in St. Matthew, Chap. xix., 9, many base the right of divorce from the
marriage bond for adultery, with permission to remarry. But, as is
well known, the Catholic Church, upon the concurrent testimony of the
Evangelists Mark* and Luke,** and upon the teaching of St. Paul,***
interprets our Lord's words quoted by St. Matthew as simply permitting,
on account of adultery, divorce from bed and board, with no right to
either party to marry another.
But even if divorce _a vinculo_ were not forbidden by divine law, how
inadequate a remedy would it be for the evils for which so many deem it
a panacea. "Divorce _a vinculo_," as Dr. Brownson truly says, "logically
involves divorce _ad libitum."_*** Now, what reason is there to suppose
that parties divorced and remated will be happier in the new connection
than in the old? As a matter of fact, many persons have been divorced
a number of times. Sometimes, too, it happens that, after a period of
separation, divorced parties repent of their folly, reunite, and are
again divorced. Indeed, experience clearly proves that unhappiness
among married people frequently does not arise so much from "mutual
incompatibility" as from causes inherent in one or both of the
parties--causes that would be likely to make a new union as wretched
as the old one. There is wisdom in the pithy saying of-a recent writer:
"Much ill comes, not because men and women are married, but because they
are fools."***
* Mark, x., n, 12. Luke, xvi., 18. J I. Cor.,vii., 10, 11.
** Essay on "The Family--Christian and Pagan."
*** Prof. David Swing in Chicago Journal.
There are some who think that the absolute prohibition of divorce does
not contribute to the purity of society, and are therefore of opinion
that divorce with liberty to remarry does good in this regard. He who
believes the matrimonial bond indissoluble, divorce a vinculo evil, and
the connection resulting from it criminal, can only say: "Evil should
not be done that good may come." But, after all, would even passing good
come from this greater freedom? In a few exceptional cases--Yes: in
the vast majority of cases--No. The trying of divorce as a safeguard of
purity is an old experiment, and an unsuccessful one. In Rome adulteries
increased as divorces were multiplied. After speaking of the facility
and frequency of divorce among the Romans, Gibbon adds:
"A specious theory is confuted by this free and perfect experiment,
which demonstrates that the liberty of divorce does not contribute
to happiness and virtue. The facility of separation would destroy
all mutual confidence, and inflame every trifling dispute. The minute
difference between a husband and a stranger, which might so easily be
removed, might still more easily be forgotten."*
How _apropos_ in this connection are the words of Professor Woolsey:
"Nothing is more startling than to pass from the first part of the
eighteenth to this latter part of the nineteenth century, and to observe
how law has changed and opinion has altered in regard to marriage, the
great foundation of society, and to divorce; and how, almost pari passu,
various offences against chastity, such as concubinage, prostitution,
illegitimate births, abortion, disinclination to family life, have
increased also--not, indeed, at the same pace everywhere, or all of them
equally in all countries, yet have decidedly increased on the whole."!
Surely in few parts of the wide world is the truth of these strong words
more evident than in those parts of our own country where loose divorce
laws have long prevailed.
It should be noted that, while never allowing the dissolution of the
marriage bond, the Catholic Church has always permitted, for grave
causes and under certain conditions, a temporary or permanent
"separation from bed and board."
* "Decline and Fall of the Roman Empire," Milman's Ed., Vol.
III., p. 236.
** "Divorce and Divorce Legislation," 2d Ed., p. 274.
The causes which, _positis ponendis_, justify such separation may be
briefly given thus: mutual consent, adultery, and grave peril of soul or
body.
It may be said that there are persons so unhappily mated and so
constituted that for them no relief can come save from divorce _a
vinculo_, with permission to remarry. I shall not linger here to point
out to such the need of seeking from a higher than earthly power the
grace to suffer and be strong. But for those whose reasoning on this
subject is of the earth, earthy, I shall add some words of practical
worldly wisdom from eminent jurists. In a note to his edition of
Blackstone's "Commentaries," Mr. John Taylor Coleridge says:
"It is no less truly than beautifully said by Sir W. Scott, in the case
of Evans v. Evans, that 'though in particular cases the repugnance
of the law to dissolve the obligation of matrimonial cohabitation may
operate with great severity upon individuals, yet it must be carefully
remembered that the general happiness of the married life is secured
by its indissolubility.' When people understand that they must live
together, except for a few reasons known to the law, they learn to
soften by mutual accommodation that yoke which they know they cannot
shake off: they become good husbands and good wives from the necessity
of remaining husbands and wives: for necessity is a powerful master in
teaching the duties which it imposes. If it were once understood that
upon mutual disgust married persons might be legally separated, many
couples who now pass through the world with mutual comfort, with
attention to their common offspring, and to the moral order of civil
society, might have been at this moment living in a state of mutual
unkindness, in a state of estrangement from their common offspring, and
in a state of the most licentious and unrestrained immorality. In this
case, as in many other cases, the happiness of some individuals must be
sacrificed to the greater and more general good."
The facility and frequency of divorce, and its lamentable consequences,
are nowadays calling much attention to measures of "divorce reform."
"How can divorce reform be best secured?" it may be asked. Believing,
as I do, that divorce is evil, I also believe that its "reformation"
and its death must be simultaneous. It should cease to be. Divorce as we
know it began when marriage was removed from the domain of the church:
divorce shall cease when the old order shall be restored. Will this ever
come to pass? Perhaps so--after many days. Meanwhile, something might
be done, something should be done, to lessen the evils of divorce. Our
present divorce legislation must be presumed to be such as the majority
of the people wish it. A first step, therefore, in the way of "divorce
reform" should be the creation of a more healthy public sentiment on
this question. Then will follow measures that will do good in proportion
to their stringency. A few practical suggestions as to the salient
features of remedial divorce legislation may not be out of place.
Persons seeking at the hands of the civil law relief in matrimonial
troubles should have the right to ask for divorce _a vinculo_, or
simple separation _a mensa et thoro_, as they may elect. The number
of legally-recognized grounds for divorce should be lessened, and
"noiseless" divorces forbidden. "Rapid-transit" facilities for passing
through divorce courts should be cut off, and divorce "agencies" should
be suppressed. The plaintiff in a divorce case should be a _bona fide_
resident of the judicial district in which his petition is filed, and in
every divorce case the legal representatives of the State should appear
for the defendant, and, by all means, the right of remarriage after
divorce should be restricted. If divorce cannot be legislated out of
existence, let, at least, its power for evil be diminished.
James Cardinal Gibbons.
I am asked certain questions with regard to the attitude of the
Episcopal Church towards the matter of divorce. In undertaking to answer
them, it is to be remembered that there is a considerable variety of
opinion which is held in more or less precise conformity with doctrinal
or canonical declarations of the church. With these variations this
paper, except in so far as it may briefly indicate them, is not
concerned. Nor is it an expression of individual opinion. That is not
what has been asked for or attempted.
The doctrine and law of the Protestant Episcopal Church on the subject
of divorce is contained in canon 13, title II., of the "Digest of the
Canons," 1887. That, canon has been to a certain extent interpreted by
Episcopal judgments under section IV. The "public opinion" of the
clergy or laity can only be ascertained in the usual way; especially
by examining their published treatises, letters, etc., and perhaps most
satisfactorily by the reports of discussion in the diocesan and general
conventions on the subject of divorce. Among members of the Protestant
Episcopal Church divorce is excessively rare, cases of uncertainty in
the application of the canon, are much more rare, and the practice of
the clergy is almost perfectly uniform. There is, however, by no means
the same uniformity in their opinions either as to divorce or marriage.
As divorce is necessarily a mere accident of marriage, and as divorce is
impossible without a precedent marriage, much practical difficulty might
arise, and much difference of opinion does arise, from the fact that the
Protestant Episcopal Church has nowhere defined marriage. Negatively,
it is explicitly affirmed (Article XXV.) that "matrimony is not to
be counted for a sacrament of the Gospel." This might seem to reduce
matrimony to a civil contract. And accordingly the first rubric in
the _Form of Solemnization of Matrimony_ directs, on the ground of
differences of laws in the various States, that "the minister is left
to the direction of those laws in everything that regards the civil
contract between the parties." Laws determining what persons shall be
capable of contracting would seem to be included in "everything that
regards the civil contract;" and unquestionably the laws of most of
the States render all persons legally divorced capable of at once
contracting a new marriage. Both the first section of canon 13 and the
_Form of Solemnization_, affirm that, "if any persons be joined together
otherwise than as God's word doth allow, their marriage is not
lawful." But it is nowhere excepting as to divorce, declared _what the
impediments are_. The Protestant Episcopal Church has never, by canon
or express legislation, published, for instance, a table of prohibited
degrees.
On the matter of divorce, however, canon 13, title II., supersedes, for
the members of the Protestant Episcopal Church, both a part of the civil
law relating to the persons capable of contracting marriage, and also
all private judgment as to the teaching of "the Word of God" on that
subject. No minister is allowed, as a rule, to solemnize the marriage of
any man or woman who has a divorced husband or wife still living. But
if the person seeking to be married is the innocent party in the divorce
for adultery, that person, whether man or woman, may be married by
a minister of the church. With the above exception, the clergy are
forbidden to administer the sacraments to any divorced and remarried
person without the express permission of the bishop, unless that person
be "penitent" and "in imminent danger of death." Any doubts "as to the
facts of any case under section II. of this canon" must be referred to
the bishop. Of course, where there is no reasonable doubt the minister
may proceed. It may be added that the sacraments are to be refused also
to persons who may be reasonably supposed to have contracted marriage
"otherwise," in any respect, "than as the Word of God and the discipline
of this Church doth allow." These impediments are nowhere defined; and
accordingly it has happened that a man who had married a deceased wife's
sister and the woman he had married were, by the private judgment of
a priest, refused the holy communion. The civil courts do not seem
inclined to protect the clergy from consequences of interference with
the civil law. In Southbridge, Mass., a few weeks ago, a man who
had been denounced from the altar for marrying again after a divorce
obtained a judgment for $1,720 damages. The law of the church would
seem to be that, even though a legal divorce may have been obtained,
remarriage is absolutely forbidden, excepting to the innocent party,
whether man or woman, in a divorce for adultery. The penalty for breach
of this law might involve, for the officiating clergyman, deposition
from the ministry; for the offending man or woman, exclusion from the
sacraments, which, in the judgment of a very large number of the clergy,
involves everlasting damnation.
It is obvious, then, that the Protestant Episcopal Church allows the
complete validity of a divorce _a vinculo_ in the case of adultery, and
the right of remarriage to the innocent party. But that church has
not determined in what manner either the grounds of the divorce or the
"innocence" of either party is to be ascertained. The canon does not
require a clergyman to demand, nor can the church enable him to secure,
the production of a copy of the record or decree of the court of law
by which a divorce is granted, nor would such decree indicate the
"innocence" of one party, though it might prove the guilt of the other.
The effect of divorce upon the integrity of the family is too obvious to
require stating. As the father and mother are the heads of the family,
their separation must inevitably destroy the common family life. On the
other hand, it is often contended that the destruction has been already
completed, and that a divorce is only the legal recognition of what has
already taken place; "the integrity of the family" can scarcely remain
when either a father or mother, or both, are living in violation of the
law on which that integrity rests. The question may be asked whether the
absolute prohibition of divorce would contribute to the moral purity of
society. It is difficult to answer such a question, because anything
on the subject must be comparatively worthless until verified by
experience. It is quite certain that the prohibition of divorce never
prevents illicit sexual connections, as was abundantly proved when
divorce in England was put within the reach of persons who were not able
to afford the expense of a special act of Parliament. It is, indeed,
so palpable a fact that any amount of evidence or argument is wholly
superfluous.
The law of the Protestant Episcopal Church is by no means identical with
the opinion of either the clergy or the laity. In the judgment of many,
the existing law is far too lax, or, at least, the whole doctrine
of marriage is far too inadequately dealt with in the authoritative
teaching of the church. The opinion of this school finds, perhaps,
its most adequate expression in the report of a committee of the last
General Convention forming Appendix XIII. of the "Journal" of that
convention. It is, substantially, that the Mosaic law of marriage is
still binding upon the church, unless directly abrogated by Christ
himself; that it was abrogated by him only so far that all divorce was
forbidden by him, excepting for the cause of fornication; that a woman
might not claim divorce for any reason whatever; that the marriage of a
divorced person until the death of the other party is wholly forbidden;
that marriage is not merely a civil contract, but a spiritual and
supernatural union, requiring for its mutual obligation a supernatural,
divine grace; that such grace is only imparted in the sacrament of
matrimony, which is a true sacrament and does actually confer grace;
that marriage is wholly within the jurisdiction of the church, though
the State may determine such rules and guarantees as may secure
publicity and sufficient evidence of a marriage, etc.; that severe
penalties should be inflicted by the State, on the demand of the church,
for the suppression of all offences against the seventh commandment and
sundry other parts of the Mosaic legislation, especially in relation to
"prohibited degrees."
There is another school, equally earnest and sincere in its zeal for
the integrity of the family and sexual purity, which would nevertheless
repudiate much the greater part of the above assumption. This school, if
one may so venture to combine scattered opinions, argues substantially
as follows: The type of all Mosaic legislation was circumcision; that
rite was of universal obligation and divine authority. St. Paul so
regarded it. The abrogation of the law requiring circumcision was,
therefore, the abrogation of the whole of the Mosaic legislation. The
"burden of proof," therefore, rests upon those who affirm the present
obligation of what formed a part of the Mosaic law; and they must show
that it has been reenacted by Christ and his Apostles or forms some part
of some other and independent system of law or morals still in force.
Christ's words about divorce are not to be construed as a positive law,
but as expressing the ideal of marriage, and corresponding to his words
about eunuchs, which not everybody "can receive." So far as Christ's
words seem to indicate an inequality as to divorce between man and
woman, they are explained by the authoritative and inspired assertion of
St. Paul: "In Christ Jesus there is neither male nor female." A divine
law is equally authoritative by whomsoever declared--whether by the Son
Incarnate or by the Holy Ghost speaking through inspired Apostles. If,
then, a divine law was ever capable of suspension or modification, it
may still be capable of such suspension or modification in corresponding
circumstances. The circumstances which justified a modification of the
original divine law of marriage do still exist in many conditions of
society and even of individual life. The Protestant Episcopal Church
cannot, alone, speak with such authority on disputed passages of
Scripture as to justify her ministers in direct disobedience to the
civil authority, which is also "ordained of God." The exegesis of the
early church was closely connected with theories about matter, and
about the inferiority of women and of married life, which are no longer
believed.
Of course this is a very brief statement. As a matter of fact the actual
effect of the doctrine and discipline of the Protestant Episcopal Church
on marriage and divorce is that divorce among her members is excessively
rare; that it is regarded with extreme aversion; and that the public
opinion of the church maintains the law as it now is, but could not be
trusted to execute laws more stringent. A member of the committee of the
General Convention whose report has been already referred to closes that
report with the following protest:
"The undersigned finds himself unable to concur in so much of the
[proposed] canon as forbids the holy communion to a truly pious and
godly woman who has been compelled by long years of suffering from
a drunken and brutal husband to obtain a divorce, and has regularly
married some suitable person according to the established laws of the
land. And also from so much of the [proposed] canon as may seem to
forbid marriage with a deceased wife's sister."
The final action on these points, which has already been stated,
indicates that the proposed report thus referred to was, in one
particular at least, in advance of the sentiment of the church as
expressed in her General Convention.
Henry C. Potter.
_Question (1.) Do you believe in the principle of divorce under any
circumstances?_
The world for the most part is ruled by the tomb, and the living are
tyrannized over by the dead. Old ideas, long after the conditions under
which they were produced have passed away, often persist in surviving.
Many are disposed to worship the ancient--to follow the old paths,
without inquiring where they lead, and without knowing exactly where
they wish to go themselves.
Opinions on the subject of divorce have been, for the most part,
inherited from the early Christians. They have come to us through
theological and priestly channels. The early Christians believed that
the world was about to be destroyed, or that it was to be purified by
fire; that all the wicked were to perish, and that the good were to
be caught up in the air to meet their Lord--to remain there, in all
probability, until the earth was prepared as a habitation for the
blessed. With this thought or belief in their minds, the things of this
world were of comparatively no importance. The man who built larger
barns in which to store his grain was regarded as a foolish farmer, who
had forgotten, in his greed for gain, the value of his own soul.
They regarded prosperous people as the children of Mammon, and the
unfortunate, the wretched and diseased, as the favorites of God. They
discouraged all worldly pursuits, except the soliciting of alms. There
was no time to marry or to be given in marriage; no time to build homes
and have families. All their thoughts were centred upon the heaven
they expected to inherit. Business, love, all secular things, fell into
disrepute.
Nothing is said in the Testament about the families of the apostles;
nothing of family life, of the sacredness of home; nothing about the
necessity of education, the improvement and development of the mind.
These things were forgotten, for the reason that nothing, in the
presence of the expected event, was considered of any importance, except
to be ready when the Son of Man should come. Such was the feeling, that
rewards were offered by Christ himself to those who would desert their
wives and children. Human love was spoken of with contempt. "Let the
dead bury their dead. What is that to thee? Follow thou me." They not
only believed these things, but acted in accordance with them; and, as a
consequence, all the relations of life were denied or avoided, and their
obligations disregarded. Marriage was discouraged. It was regarded as
only one degree above open and unbridled vice, and was allowed only
in consideration of human weakness. It was thought far better not to
marry--that it was something grander for a man to love God than to
love woman. The exceedingly godly, the really spiritual, believed in
celibacy, and held the opposite sex in a kind of pious abhorrence. And
yet, with that inconsistency so characteristic of theologians, marriage
was held to be a sacrament. The priest said to the man who married:
"Remember that you are caught for life. This door opens but once. Before
this den of matrimony the tracks are all one way." This was in the
nature of a punishment for having married. The theologian felt that the
contract of marriage, if not contrary to God's command, was at least
contrary to his advice, and that the married ought to suffer in some
way, as a matter of justice. The fact that there could be no divorce,
that a mistake could not be corrected, was held up as a warning. At
every wedding feast this skeleton stretched its fleshless finger towards
bride and groom.
Nearly all intelligent people have given up the idea that the world is
about to come to an end. They do not now believe that prosperity is a
certain sign of wickedness, or that poverty and wretchedness are sure
certificates of virtue. They are hardly convinced that Dives should have
been sent to hell simply for being rich, or that Lazarus was entitled
to eternal joy on account of his poverty. We now know that prosperous
people may be good, and that unfortunate people may be bad. We have
reached the conclusion that the practice of virtue tends in the
direction of prosperity, and that a violation of the conditions of
well-being brings, with absolute certainty, wretchedness and misfortune.
There was a time when it was believed that the sin of an individual
was visited upon the tribe, the community, or the nation to which he
belonged. It was then thought that if a man or woman had made a vow
to God, and had failed to keep the vow, God might punish the entire
community; therefore it was the business of the community to see to it
that the vow was kept. That idea has been abandoned. As we progress, the
rights of the individual are perceived, and we are now beginning dimly
to discern that there are no rights higher than the rights of the
individual. There was a time when nearly all believed in the reforming
power of punishment--in the beneficence of brute force. But the world is
changing. It was at one time thought that the Inquisition was the savior
of society; that the persecution of the philosopher was requisite to the
preservation of the state, and that, no matter what happened, the state
should be preserved. We have now more light. And standing upon this
luminous point that we call the present, let me answer your questions.
Marriage is the most important, the most sacred, contract that
human beings can make. No matter whether we call it a contract, or a
sacrament, or both, it remains precisely the same. And no matter whether
this contract is entered into in the presence of magistrate or priest,
it is exactly the same. A true marriage is a natural concord and
agreement of souls, a harmony in which discord is not even imagined;
it is a mingling so perfect that only one seems to exist; all other
considerations are lost; the present seems to be eternal. In this
supreme moment there is no shadow--or the shadow is as luminous as
light. And when two beings thus love, thus unite, this is the true
marriage of soul and soul. That which is said before the altar, or
minister, or magistrate, or in the presence of witnesses, is only the
outward evidence of that which has already happened within; it simply
testifies to a union that has already taken place--to the uniting of two
mornings of hope to reach the night together. Each has found the ideal;
the man has found the one woman of all the world--the impersonation of
affection, purity, passion, love, beauty, and grace; and the woman has
found the one man of all the world, her ideal, and all that she knows of
romance, of art, courage, heroism, honesty, is realized in him. The
idea of contract is lost. Duty and obligation are instantly changed into
desire and joy, and two lives, like uniting streams, flow on as one.
Nothing can add to the sacredness of this marriage, to the obligation
and duty of each to each. There is nothing in the ceremony except the
desire on the part of the man and woman that the whole world should know
that they are really married and that their souls have been united.
Every marriage, for a thousand reasons, should be public, should be
recorded, should be known; but, above all, to the end that the purity of
the union should appear. These ceremonies are not only for the good and
for the protection of the married, but also for the protection of their
children, and of society as well. But, after all, the marriage remains
a contract of the highest possible character--a contract in which each
gives and receives a heart.
The question then arises, Should this marriage, under any circumstances,
be dissolved? It is easy to understand the position taken by the various
churches; but back of theological opinions is the question of contract.
In this contract of marriage, the man agrees to protect and cherish his
wife. Suppose that he refuses to protect; that he abuses, assaults, and
tramples upon the woman he wed. What is her redress? Is she under
any obligation to him? He has violated the contract. He has failed to
protect, and, in addition, he has assaulted her like a wild beast. Is
she under any obligation to him? Is she bound by the contract he has
broken? If so, what is the consideration for this obligation? Must she
live with him for his sake? or, if she leaves him to preserve her life,
must she remain his wife for his sake? No intelligent man will answer
these questions in the affirmative.
If, then, she is not bound to remain his wife for the husband's sake,
is she bound to remain his wife because the marriage was a sacrament? Is
there any obligation on the part of the wife to remain with the brutal
husband for the sake of God? Can her conduct affect in any way the
happiness of an infinite being? Is it possible for a human being to
increase or diminish the well-being of the Infinite?
The next question is as to the right of society in this matter. It must
be admitted that the peace of society will be promoted by the separation
of such people. Certainly society cannot insist upon a wife remaining
with a husband who bruises and mangles her flesh. Even married women
have a right to personal security. They do not lose, either by contract
or sacrament, the right of self-preservation; this they share in common,
to say the least of it, with the lowest living creatures.
This will probably be admitted by most of the enemies of divorce; but
they will insist that while the wife has the right to flee from
her husband's roof and seek protection of kindred or friends, the
marriage--the sacrament--must remain unbroken. Is it to the interest of
society that those who despise each other should live together? Ought
the world to be peopled by the children of hatred or disgust, the
children of lust and loathing, or by the welcome babes of mutual love?
Is it possible that an infinitely wise and compassionate God insists
that a helpless woman shall remain the wife of a cruel wretch? Can
this add to the joy of Paradise, or tend to keep one harp in tune? Can
anything be more infamous than for a government to compel a woman to
remain the wife of a man she hates--of one whom she justly holds in
abhorrence? Does any decent man wish the assistance of a constable,
a sheriff, a judge, or a church, to keep his wife in his house? Is it
possible to conceive of a more contemptible human being than a man who
would appeal to force in such a case? It may be said that the woman is
free to go, and that the courts will protect her from the brutality of
the man who promised to be her protector; but where shall the woman go?
She may have no friends; or they may be poor; her kindred may be
dead. Has she no right to build another home? Must this woman, full of
kindness, affection, health, be tied and chained to this living corpse?
Is there no future for her? Must she be an outcast forever--deceived and
betrayed for her whole life? Can she never sit by her own hearth, with
the arms of her children about her neck, and with a husband who loves
and protects her? Is she to become a social pariah, and is this for the
benefit of society?--or is it for the sake of the wretch who destroyed
her life?
The ground has been taken that woman would lose her dignity if marriage
could be annulled. Is it necessary to lose your liberty in order to
retain your moral character--in order to be pure and womanly? Must a
woman, in order to retain her virtue, become a slave, a serf, with a
beast for a master, or with society for a master, or with a phantom for
a master?
If an infinite being is one of the parties to the contract, is it not
the duty of this being to see to it that the contract is carried out?
What consideration does the infinite being give? What consideration does
he receive? If a wife owes no duty to her husband because the husband
has violated the contract, and has even assaulted her life, is it
possible for her to feel toward him any real thrill of affection? If she
does not, what is there left of marriage? What part of this contract or
sacrament remains in living force? She can not sustain the relation of
wife, because she abhors him; she cannot remain under the same roof, for
fear that she may be killed. They sustain, then, only the relations
of hunter and hunted--of tyrant and victim. Is it desirable that this
relation should last through life, and that it should be rendered sacred
by the ceremony of a church?
Again I ask, Is it desirable to have families raised under such
circumstances? Are we in need of children born of such parents? Can the
virtue of others be preserved only by this destruction of happiness, by
this perpetual imprisonment?
A marriage without love is bad enough, and a marriage for wealth or
position is low enough; but what shall we say of a marriage where the
parties actually abhor each other? Is there any morality in this?
any virtue in this? Is there virtue in retaining the name of wife, or
husband, without the real and true relation? Will any good man say, will
any good woman declare, that a true, loving woman should be compelled
to be the mother of children whose father she detests? Is there a good
woman in the world who would not shrink from this herself; and is there
a woman so heartless and so immoral that she would force another to bear
that from which she would shudderingly and shriekingly shrink?
Marriages are made by men and women; not by society; not by the state;
not by the church; not by supernatural beings. By this time we should
know that nothing is moral that does not tend to the well-being of
sentient beings; that nothing is virtuous the result of which is not
good. We know now, if we know anything, that all the reasons for doing
right, and all the reasons against doing wrong, are here in this world.
We should have imagination enough to put ourselves in the place of
another. Let a man suppose himself a helpless woman beaten by a brutal
husband--would he advocate divorces then?
Few people have an adequate idea of the sufferings of women and
children, of the number of wives who tremble when they hear the
footsteps of a returning husband, of the number of children who hide
when they hear the voice of a father. Few people know the number of
blows that fall on the flesh of the helpless every day, and few know
the nights of terror passed by mothers who hold babes to their breasts.
Compared with these, all the hardships of poverty borne by those who
love each other are as nothing. Men and women truly married bear the
sufferings and misfortunes of poverty together. They console each
other. In the darkest night they see the radiance of a star, and their
affection gives to the heart of each perpetual sunshine.
The good home is the unit of the good government. The hearthstone is
the corner-stone of civilization. Society is not interested in the
preservation of hateful homes, of homes where husbands and wives are
selfish, cold, and cruel. It is not to the interest of society that good
women should be enslaved, that they should live in fear, or that they
should become mothers by husbands whom they hate. Homes should be filled
with kind and generous fathers, with true and loving mothers; and when
they are so filled, the world will be civilized. Intelligence will rock
the cradle; justice will sit in the courts; wisdom in the legislative
halls; and above all and over all, like the dome of heaven, will be the
spirit of liberty.
Although marriage is the most important and the most sacred contract
that human beings can make, still when that contract has been violated,
courts should have the power to declare it null and void upon such
conditions as may be just.
As a rule, the woman dowers the husband with her youth, her beauty, her
love--with all she has; and from this contract certainly the husband
should never be released, unless the wife has broken the conditions of
that contract. Divorces should be granted publicly, precisely as the
marriage should be solemnized. Every marriage should be known, and
there should be witnesses, to the end that the character of the contract
entered into should be understood; the record should be open and public.
And the same is true of divorces. The conditions should be determined,
the property should be divided by a court of equity, and the custody of
the children given under regulations prescribed.
Men and women are not virtuous by law. Law does not of itself create
virtue, nor is it the foundation or fountain of love. Law should protect
virtue, and law should protect the wife, if she has kept her contract,
and the husband, if he has fulfilled his. But the death of love is the
end of marriage. Love is natural. Back of all ceremony burns and will
forever burn the sacred flame. There has been no time in the world's
history when that torch was extinguished. In all ages, in all climes,
among all people, there has been true, pure, and unselfish love. Long
before a ceremony was thought of, long before a priest existed, there
were true and perfect marriages. Back of public opinion is natural
modesty, the affections of the heart; and in spite of all law, there is
and forever will be the realm of choice. Wherever love is, it is pure;
and everywhere, and at all times, the ceremony of marriage testifies to
that which has happened within the temple of the human heart.
_Question (2). Ought divorced people to be allowed to marry under any
circumstances?_
This depends upon whether marriage is a crime. If it is not a crime, why
should any penalty be attached? Can any one conceive of any reason why
a woman obtaining a divorce, without fault on her part, should be
compelled as a punishment to remain forever single? Why should she be
punished for the dishonesty or brutality of another? Why should a man
who faithfully kept his contract of marriage, and who was deserted by an
unfaithful wife, be punished for the benefit of society? Why should he
be doomed to live without a home?
There is still another view. We must remember that human passions are
the same after as before divorce. To prevent remarriage is to give
excuse for vice.
_Question (3). What is the effect of divorce upon the integrity of the
family?_
The real marriage is back of the ceremony, and the real divorce is
back of the decree. When love is dead, when husband and wife abhor each
other, they are divorced. The decree records in a judicial way what has
really taken place, just as the ceremony of marriage attests a contract
already made.
The true family is the result of the true marriage, and the institution
of the family should above all things be preserved. What becomes of the
sacredness of the home, if the law compels those who abhor each other to
sit at the same hearth? This lowers the standard, and changes the happy
haven of home into the prison-cell. If we wish to preserve the integrity
of the family, we must preserve the democracy of the fireside, the
republicanism of the home, the absolute and perfect equality of husband
and wife. There must be no exhibition of force, no spectre of fear. The
mother must not remain through an order of court, or the command of a
priest, or by virtue of the tyranny of society; she must sit in absolute
freedom, the queen of herself, the sovereign of her own soul and of
her own body. Real homes can never be preserved through force, through
slavery, or superstition. Nothing can be more sacred than a home, no
altar purer than the hearth.
_Question (4). Does the absolute prohibition of divorce where it exists
contribute to the moral purity of society?_
We must define our terms. What is moral purity? The intelligent of
this world seek the well-being of themselves and others. They know that
happiness is the only good; and this they strive to attain. To live in
accordance with the conditions of well-being is moral in the highest
sense. To use the best instrumentalities to attain the highest ends is
our highest conception of the moral. In other words, morality is the
melody of the perfection of conduct. A man is not moral because he
is obedient through fear or ignorance. Morality lives in the realm
of perceived obligation, and where a being acts in accordance with
perceived obligation, that being is moral. Morality is not the child of
slavery. Ignorance is not the corner-stone of virtue.
The first duty of a human being is to himself. He must see to it that
he does not become a burden upon others. To be self-respecting, he must
endeavor to be self-sustaining. If by his industry and intelligence he
accumulates a margin, then he is under obligation to do with that margin
all the good he can. He who lives to the ideal does the best he can. In
true marriage men and women give not only their bodies, but their souls.
This is the ideal marriage; this is moral. They who give their bodies,
but not their souls, are not married, whatever the ceremony may be; this
is immoral.
If this be true, upon what principle can a woman continue to sustain the
relation of wife after love is dead? Is there some other consideration
that can take the place of genuine affection? Can she be bribed with
money, or a home, or position, or by public opinion, and still remain a
virtuous woman? Is it for the good of society that virtue should be thus
crucified between church and state? Can it be said that this contributes
to the moral purity of the human race?
Is there a higher standard of virtue in countries where divorce is
prohibited than in those where it is granted? Where husbands and wives
who have ceased to love cannot be divorced, there are mistresses and
lovers.
The sacramental view of marriage is the shield of vice. The world looks
at the wife who has been abused, who has been driven from the home of
her husband, and the world pities; and when this wife is loved by some
other man, the world excuses. So, too, the husband who cannot live in
peace, who leaves his home, is pitied and excused.
Is it possible to conceive of anything more immoral than for a husband
to insist on living with a wife who has no love for him? Is not this a
perpetual crime? Is the wife to lose her personality? Has she no right
of choice? Is her modesty the property of another? Is the man she hates
the lord of her desire? Has she no right to guard the jewels of her
soul? Is there a depth below this? And is this the foundation of
morality? this the corner-stone of society? this the arch that supports
the dome of civilization? Is this pathetic sacrifice on the one hand,
this sacrilege on the other, pleasing in the sight of heaven?
To me, the tenderest word in our language, the most pathetic fact within
our knowledge, is maternity. Around this sacred word cluster the joys
and sorrows, the agonies and ecstasies, of the human race. The mother
walks in the shadow of death that she may give another life. Upon
the altar of love she puts her own life in pawn. When the world is
civilized, no wife will become a mother against her will. Man will then
know that to enslave another is to imprison himself.
Robert G. Ingersoll.