as regards property similar to, though far more gradual, and in its
results falling far short of, the change made at Rome when the marriage
without Hand power became general. But in England a recourse to the
Courts has always been the luxury of the rich; and as the middle and
poorer classes were not wont to go to the Courts, or to make
settlements, it was only among the richer classes that the wife’s
separate estate can be said to have existed. At last, however, the gross
injustice of allowing a selfish or wasteful husband to seize his wife’s
earnings and neglect her was so far felt that several Acts were passed
(the first in 1857), under which a woman deserted by her husband may
obtain from a magistrate a judicial order, protecting from him any
property she may acquire after desertion. By this time an agitation had
begun to secure wider rights for married women. It had great
difficulties to overcome in the conservative sentiment of lawyers, and
of those who are led by lawyers, and more especially of members of the
House of Lords. Not till 1870 did the British Parliament take the step
which the Romans had taken long before the Christian era, and which many
American States had taken in the first half of the nineteenth century. A
statute of that year, amended and extended by others of 1874 and 1882,
swept away the old rule which carried all the wife’s property over to
the husband by the mere fact of marriage; so that now whatever a woman
possesses at her marriage, or receives after it, or earns for herself,
remains her own as if she were unmarried, while of course the husband no
longer becomes liable by marriage to her ante-nuptial debts. By these
slow degrees has the English wife risen at last to the level of the
Roman. The practice of making settlements on marriage still remains,
especially where the wife’s property is large, or where there is any
reason to distrust the bridegroom; for though the interposition of
trustees is no longer needed to keep the property from falling by
operation of law into the husband’s grasp, he may still press or
persuade her to part with it, since she now enjoys full disposing power,
and if she does part with it, she and the children may suffer. Thus
custom sustains in England, and perhaps will long sustain, a system
resembling that of the Roman _Dos_. Yet the number of persons possessing
some property who marry without a settlement increases, as does the
number of women whose strength of will and knowledge of business enables
them to hold their own against marital coaxing or coercion.
It need hardly be said that the personal liberty of the wife was
established long before her right to separate property. Says Blackstone
(writing in 1763):—
‘The husband by the old law might give his wife moderate correction.
For as he is to answer for her misbehaviour, the law thought it
reasonable to entrust him with his power of restraining her, by
domestic chastisement, in the same moderation that a man is allowed to
correct his apprentices or children, for whom the parent is also
liable in some cases to answer. But this power of correction was
confined within reasonable bounds, and the husband was prohibited from
using any violence to his wife _aliter quam ad virum, ex causa
regiminis et castigationis uxoris suae, licite et rationabiliter
pertinet_. But in the politer reign of Charles the Second this power
of correction began to be doubted, and a wife may now have security of
the peace against her husband, or, in return, a husband against his
wife. Yet the lower rank of people, who were always fond of the old
common law, still claim and exert their ancient privilege; and the
Courts of Law will still permit a husband to restrain a wife of her
liberty in case of any gross misbehaviour[209].’
-----
Footnote 209:
Blackstone, _Commentaries_, vol. i. bk. i. chap. 15.
-----
This touching attachment to their old common law still survives among
‘the lower rank of people’ in the form of wife beating. But among the
politer classes the right to restrain a consort’s liberty (except under
very special circumstances) may be deemed to have become exploded since
the case of _Reg._ v. _Jackson_ in 1891[210]. So that now the English
wife, like the Roman, may quit her husband’s house when she pleases, and
the suit for restitution of conjugal rights, whereby either could compel
the other to live in the common household, is falling into disuse, if
indeed it can still be described as in any sense effective since the
Act, passed in 1884, which took away the remedy by attachment.
-----
Footnote 210:
1 Q. B. p. 671 (in the Court of Appeal). The judgements are
instructive. The Master of the Rolls goes so far as to doubt whether
the husband ever had a legal power of correction, a curious instance
of the way in which the sentiment of a later time sometimes tries to
force upon the language of an older time a non-natural meaning, the
new sentiment being one which the older time would have failed to
understand. It would have been simpler to admit that what may well
have been law in the seventeenth century is not to be taken to be law
now, manners and ideas having so completely changed as to render the
old rules obsolete.
-----
The interest which belongs to these changes in the law, changes
generally similar in their result in the English and in the Roman
systems, though far more gradually made in the former than in the
latter, is the interest of observing the methods whereby custom and
legislation have sought to work out different possible theories of the
marriage relation. There are usually said to be two theories, that of
Mastery, and that of Equality. On the former the husband is lord of the
wife’s property as well as of her person. The law puts her at his mercy,
trusting that affection, public opinion, and a regard for domestic
comfort will restrain the exercise of his rights. On the other theory,
each consort is a law to him- or herself, each can dispose of his or her
property, time, and local presence without the assent of the other. The
law allows this freedom in the hope that affection, respect, and the
opinion of society will prevent its abuse. Yet these two theories, that
with which both Rome and England began, that with which both Rome and
England have ended, do not exhaust the possibilities of the relation.
For there is a third theory which, more or less consciously felt to be
present, has influenced both the one and the other, creating a sort of
compromise between them. It is the theory of a partnership in social
life and in property similar to the partnership which necessarily exists
as regards the children of a marriage. This idea is expressed by the
form which the Mastery theory took when it declared husband and wife to
be ‘one person in the law,’ and in the Anglican marriage service where
the wife’s promise to obey[211] is met by the husband’s declaration that
he endows her with all his worldly goods. It also qualifies the theory
of Equality and Independence by the practice of creating a settlement in
England, and a _Dos_ (and _Donatio propter nuptias_) at Rome, in which
each of the married pair has an interest.
-----
Footnote 211:
This promise does not appear in the forms of marriage service commonly
used by the unestablished churches of England, or most of them.
-----
Any one can see that the Mastery theory, against which modern sentiment
revolts, was more defensible in a time of violence, when protection for
life and property had to be secured by physical force as well as by
recourse to the law, than it is to-day. Any one can also see that there
are even to-day households for which the Mastery theory may be well
suited, as there also are, and always have been, even in days of
rudeness and in Musulman countries, other households where the wife was,
and rightly was, the real head of the family. Those moreover who,
judging of other times by their own, think that the position of the wife
and of women generally must have been, under the Mastery theory, an
intolerable one, need to be reminded not only that the practical working
of family life depends very largely on the respective characters of the
persons within the family, and on the amount of affection they entertain
for one another, but also that it is profoundly modified by the
conception of their relations which rules the minds of these persons.
Law, itself the product and the index of public opinion, moulds and
solidifies that conception, and the wife of the old stern days of
marital tyranny saw no indignity or hardship in that position of humble
obedience which the independent spirit of our own time resents.
XV. DIVORCE UNDER THE CANON LAW.
There is one more point in which opposite theories of marriage have to
be contrasted, and in which the contrast appears most strikingly. This
is the point which touches the permanence of the relation.
We have already seen what were the provisions of the Roman law upon the
subject of Divorce. Those provisions continued to prevail in Western
Europe after the fall of the Empire, until, apparently in the eighth,
ninth, and tenth centuries, new rules enforced by the Church superseded
them in the regions where the imperial law had been observed. A similar
change occurred later in other countries such as England and Germany,
where the ancient customs of the barbarian tribes had allowed the
husband, and apparently in some cases the wife also, to dissolve the
marriage and depart. From the twelfth century onwards the ecclesiastical
rules and courts had undoubted control of this branch of law all over
Christian Europe. Now the Church held marriage to be a sacrament and to
be indissoluble. Divorce, therefore, in the proper sense of the term, as
a complete severance of a duly constituted matrimonial tie, was held by
the Church inadmissible. This view was based on the teaching of our Lord
as given in the Gospels[212], and was enforced on every bridal pair in
the liturgical form employed at marriage, as indeed it is in the English
liturgy to-day. Nevertheless, the Church recognized two legal processes
which were popularly, though incorrectly, called divorces.
-----
Footnote 212:
Messrs. Pollock and Maitland refer to the dooms of Aethelbert as
showing the permissibility of divorce in early English law (_History
of English Law_, vol. ii. p. 390).
-----
One of these, called the divorce from the bond of marriage (_a vinculo
matrimonii_), was in reality a declaration by ecclesiastical
authority—that of the Pope, or a deputy acting under him—that the
marriage had been null from the beginning on the ground of some
canonical impediment, such as relationship or pre-contract. As already
observed, the rules regarding impediments were so numerous and so
intricate that it was easy, given a sufficient motive, whether political
or pecuniary, to discover some ground for declaring almost any marriage
invalid. The practice of granting divorces of this class, which was
constantly made a means of obliging the great ones of the earth and
augmenting papal revenues, may sometimes have been really useful for the
purpose of dissolving the ill-assorted unions of those who could secure
a decree from the ecclesiastical authorities. Technically, however, it
was not a dissolution of marriage, but a declaration that no marriage
had ever existed, and therefore it rendered children born in the
relation illegitimate[213].
-----
Footnote 213:
But canonical ingenuity discovered methods by which in some cases the
legitimacy of the children might be saved though the marriage was
declared void.
-----
The other kind of divorce was that called ‘from board and bed’ (_a mensa
et thoro_). It was a regular part of the jurisdiction of the Church
Courts, and effected a legal separation of the two parties from their
joint life in one household, while leaving them still man and wife, and
therefore unable to marry any other person. The status of the children
was of course not affected.
XVI. THE LATER LAW OF DIVORCE IN ENGLAND AND SCOTLAND.
This law prevailed over all Europe till the Reformation, and continued
to prevail in all Roman Catholic countries till a very recent time. In
some it still prevails, at least so far as Roman Catholics are
concerned. But in most Protestant countries it received a fatal shock
from the denial, in which all Protestants agreed, of the sacramental
character of marriage, and from the revival, in some of such countries,
of the view of marriage as a purely civil contract. Thus in Scotland the
courts began, very soon after the Roman connexion had been repudiated,
to grant divorces; and in A.D. 1573 a statute added desertion to
adultery as a ground for divorce. In England, however, where the
revulsion against the doctrines of mediaeval Christianity was less
pronounced, and where the Ecclesiastical Courts retained their
jurisdiction in matrimonial causes, the old law went on unchanged, save
that after the abolition of many of the canonical impediments, mentioned
above, divorces _a vinculo_, declaring marriages to have been originally
invalid, became far more rare. Nevertheless, attempts had been made by
some of the more energetic English Reformers to assert the dissolubility
of marriage. A draft ecclesiastical code (called the _Reformatio legum
ecclesiasticarum_) was prepared, but never enacted; and Milton argued
strongly on the same side in his well-known but little read book. About
his time cases begin to occur in which marriages were dissolved by Acts
of Parliament; a practice which became more frequent under the Whig
régime of the early Hanoverian kings, and ultimately ripened into a
regular procedure by which those who could afford the expense might
secure divorces. The party seeking divorce was required to first obtain
from the Ecclesiastical Court a divorce _a mensa et thoro_, which
obtained, he introduced his private Bill for a complete divorce. It was
heard by the House of Lords as a practically judicial matter, in which
evidence was given, and counsel argued the case for and (if the other
party resisted) against the divorce. It was usually by the husband that
these divorce Bills were promoted, and indeed no wife so obtained a
divorce till A.D. 1801[214].
-----
Footnote 214:
There had also sprung up the practice of effecting private separations
between a husband and a wife by means of a deed executed by each of
them, and such a deed presently came to be recognized as a defence to
a suit by either party for the restitution of conjugal rights.
-----
This characteristically English evasion of that principle of
indissolubility for which such immense respect was professed lasted till
1857, long before which time the existence of a law which gave to the
rich what it refused to the poor had become a scandal[215]. In that year
an Act was passed, not without strenuous opposition from those who clung
to the older ecclesiastical theory, which established a new Court for
Divorce and Matrimonial causes, empowered to grant either a complete
dissolution of marriage (divorce _a vinculo matrimonii_) or a ‘judicial
separation’ (divorce _a mensa et thoro_). This statute adhered to the
rule which the practice of the House of Lords had established, and under
it a husband may obtain a divorce on proof of the wife’s infidelity,
whereas the wife can obtain it only by proving, in addition to the fact
of infidelity on the husband’s part, either that it was aggravated by
bigamy or incest, or that it was accompanied by cruelty or by two years’
desertion. To prevent collusion a public functionary called the Queen’s
Proctor is permitted to intervene where he sees grounds for doing so.
Misconduct by the husband operates as a bar to his obtaining a divorce.
Thus the law of England stands to-day. Attempts have been made to alter
it on the basis of equality, so that whatever misconduct on the wife’s
part entitles a husband to divorce shall, if committed by the husband,
entitle her likewise to have the marriage dissolved. But these attempts
have not so far succeeded[216].
-----
Footnote 215:
Probably the English Jews were permitted to exercise in the
seventeenth and eighteenth century the right of divorce which their
own law gave them. But in those days the Jews were so cut off from the
general English society that the phenomenon passed almost unnoticed.
They were a very small community, living practically under their
personal law, as the Parsis do in Western India to-day.
Footnote 216:
The Act of 1857 (amended in some points by subsequent statutes)
contains provisions intended to prevent collusion between the parties,
and empowers the Court to regulate the property rights of the divorced
persons and the custody of the children (if any) of the marriage.
-----
The law of Scotland is more indulgent, and not only permits a wife to
obtain divorce for a husband’s infidelity alone, but also recognizes
wilful desertion for four years as a ground for divorce. In other
respects its provisions are generally similar to those of the English
law. Ireland, however, remains under the old pre-Reformation system.
There is no Divorce Court, and no marriage can be dissolved save by Act
of Parliament. The bulk of the people are Roman Catholics, and among
Protestants as well as Roman Catholics the level of public sentiment and
of conjugal morality has apparently been higher than in England, nor
have attempts been made, at any rate in recent years, to obtain the
freedom which England and Scotland possess. The United Kingdom thus
shows within its narrow limits the curious phenomenon of three
dissimilar systems of law regulating a matter on which it is eminently
desirable that the law should be uniform. England has a comparatively
strict rule, and one which is unequal as between the two parties.
Scotland is somewhat laxer, but treats both parties alike. Ireland has
no divorce at all. So little do theoretical considerations prevail
against the attachment of a nation to its own sentiments and usages.
I reserve comments on these systems till we have followed out the
history of the English matrimonial law in the widest and most remarkable
field of its development, the United States of America.
XVII. THE DIVORCE LAWS OF THE UNITED STATES.
When the thirteen Colonies proclaimed their separation from Great
Britain in 1776, they started with the Common Law and all such statute
law as had in fact been in force at the date of the separation.
Accordingly they had no provision for dissolving marriages, nor any
Ecclesiastical Courts to grant dissolutions, seeing that such tribunals
had never existed in America, where there had been no bishops.
Presently, however, they began to legislate on the subject, and the
legislation which they, and the newer States added to the Union since
1789, have produced presents the largest and the strangest, and perhaps
the saddest, body of legislative experiments in the sphere of family law
which free, self-governing communities have ever tried. Both marriage
and divorce belong, under the American Constitution, to the several
States, Congress having no right to pass any laws upon the subject,
except of course for the District of Columbia and the Territories. Thus
every one of the (now) forty-five States has been free to deal with this
incomparably difficult and delicate matter at its own sweet will, and
the variety of provisions is endless. As it would require a great deal
of space to present these in detail, I shall touch on only some salient
points.
Originally, the few divorces that were granted were obtained, following
the example of England, by means of Acts of the State legislature. The
evils of this plan were perceived, and now nearly all the States have by
their Constitutions forbidden the legislature to pass such Acts, since
Courts have been provided to which application may be made. These are
usually either the ordinary inferior Courts of the State, or the
Chancery Courts (where such survive). No State seems to have, like
England, erected a special Court for the purpose. One State only, South
Carolina, does not recognize divorce at all. In 1872, under the
so-called ‘carpet-bagger government,’ set up after the War of Secession,
a statute was passed in that State authorizing divorces for infidelity
or desertion, but in 1878, when the native whites had regained control,
this statute was repealed, so that now, if a divorce is obtained at all,
it must be obtained from the legislature outside the regular law. South
Carolina has the distinction of being to-day probably the only
Protestant community in the world which continues to hold marriage
indissoluble. No State has fewer Roman Catholic citizens: Presbyterians
and Methodists are the strongest religious bodies.
The causes for which divorce may be granted range downwards from the
strictness of such a conservative State as New York, where conjugal
infidelity is the sole cause recognized for an absolute dissolution of
the marriage, to the laxity of Washington, where the Court may grant
divorce ‘for any cause deemed by it sufficient, and when it shall be
satisfied that the parties can no longer live together.’ Desertion is in
nearly all States recognized as a ground for dissolution. So is cruelty
by either party, or the reasonable apprehension of it by either. So in
many States the neglect of the husband to provide for the wife, habitual
intemperance, indignities or insulting treatment, violent temper, and
(in a smaller number) the persistent neglect of her domestic duties by
the wife, grave misconduct before marriage unknown to the other party,
insanity, an indictment for felony followed by flight, vagrancy, are, or
have been, prescribed as among the sufficient grounds for divorce. In
some States a sentence of imprisonment for life _ipso iure_ annuls the
marriage of the prisoner, permitting the other partner to remarry, and,
in most, conviction for felony or infamous crime is a ground on which
the Court may decree, and presumably will decree, the extinction of the
marriage. Moreover, there are still a few States where over and above
the judicial process open to a discontented consort, the State
legislature continues to grant divorces by special statutes. Delaware
is, or very recently was, such a State; and in the twenty years
preceding 1887 it would seem that four-fifths of its divorces, not
indeed very numerous (289 for twenty years), were so obtained. The laws
of most States also provide for what the Americans call a ‘limited
divorce,’ and the English a ‘judicial separation,’ equivalent to the old
divorce _a mensa et thoro_. It leaves the marriage still valid, but
relieves the parties from any obligation to live together; and in some
States the Court in pronouncing a decree of divorce may change the name
of the wife (in Texas and Arizona the name of either party), while in
Vermont it may also change the names of the children who are minors.
Not less remarkable than the multiplication of grounds for divorce in
the American States is the extreme laxity of procedure which has grown
up. The Courts having jurisdiction are usually the Courts of the county,
tribunals of no great weight, whose ill-paid judges are seldom men of
professional eminence. The terms of residence within a State which are
required before a petitioner can apply for a divorce are generally very
short. The provisions for serving notice on the respondent or defendant
to the divorce suit are loose and seem to be carelessly enforced. Some
States allow service to be effected by publication in the newspapers, if
the other party be not found within the State, and this of course often
happens when the applicant has recently come to the State, most likely a
distant one, from that in which he or she lived with the other consort.
Frequently he comes for the express purpose of getting his marriage
dissolved. Although most States declare collusion or connivance by the
other party to be a bar to the granting of a divorce, and some few
States provide that a public official shall appear to defend in
undefended petitions, the provisions made for detecting these devices
are inadequate; and in not a few cases the proceedings do little more
than set a judicial seal upon that voluntary dissolution by the
agreement of the two consorts, which was so common at Rome. It is
doubtless a point of difference between the Roman law and that of modern
American States that in the former the parties could by their own will
and act terminate the marriage: in the latter the Courts must be invoked
to do so. But where the Courts out of good-nature or carelessness make a
practice of complying with the application of one party, unresisted or
feebly resisted by the other, this difference almost disappears. The
facilities which some of the more lax States hold out to those who come
to live in them for the requisite period, and who then procure from the
complaisant Court a divorce without the knowledge of the other consort,
constitute a grave blot on the administration of justice in the Union
generally, for a marriage dissolved in one State (where jurisdiction
over the parties has been duly created) is _prima facie_ dissolved
everywhere[217]; and although the decree might conceivably be reversed
if evidence could be given that it had been improperly obtained, it is
usually so difficult to obtain that evidence that the injured party,
especially an injured wife, must perforce submit.
-----
Footnote 217: