into some other State for the purpose of getting a divorce for a cause
arising within the State, or for a cause which the law of the State
would not authorize, a divorce granted to him shall have no effect
within the State.
-----
XVIII. STATISTICS OF DIVORCE IN AMERICA.
Under these lax laws, and the not less lax administration of them, the
number of divorces has in the United States risen with formidable
rapidity. In 1867 there were 9,937 granted, in 1886, 25,535, an increase
of nearly 157 per cent. in twenty years. The total number recorded to
have been granted in those twenty years (and the record is probably not
quite complete) is 328,716, a ghastly total, exceeding all the divorces
granted in the same years in all other Christian countries[218]. The
population of the Republic increased about 60 per cent. within the same
twenty years. Taking the two census years 1870 and 1880, the percentage
of increase was, for the population, 30·1, for divorce, 79·4, or more
than twice as great; and while in many States the percentage of divorce
increase is far larger than 79·4, there are only five in which divorce
has not grown faster than population.
-----
Footnote 218:
In Canada during the same twenty years only 135 divorces were granted
in a population which was, in 1881, 4,324,000. In some provinces of
the Dominion divorces could be obtained only by private Act of
Parliament.
-----
The increase is most rapid in the south-western States, in several New
England States, and especially in the States of the far West, less
marked in the north Atlantic States generally, and in those between the
Atlantic and the Mississippi. It is greater in cities than in rural
districts[219].
-----
Footnote 219:
In an interesting article in the _Political Science Quarterly_ for
March, 1893, Mr. W. F. Willcox (now (1900) of the U. S. Census Office)
argues that the divorce rate is influenced by depression of trade,
declining when the lower middle and working class, among whom it is
frequent, are less able to afford it.
Mr. Willcox quotes some remarkable figures from Japan showing an
extremely high divorce rate there. In 1886 there were in Japan 315,311
marriages and 117,964 divorces. This is four and a-half times the rate
in the U. S. of America, which comes next.
-----
It is, in the South, apparently somewhat greater among the coloured
people than among the whites[220]. It is greater among native-born
Americans than among immigrants from Europe. And it need hardly be said
that it is far larger among Protestants than among Roman Catholics.
These points deserve to be remembered, because they throw some light on
the causes which have produced the increase.
-----
Footnote 220:
The conditions prevailing among a coloured population which had, under
slavery, no legal marriage, go far to explain this phenomenon.
-----
Some other facts to be noted before we pass on to consider those causes
are the following.
The grounds on which divorces have been granted are often trivial, even
frivolous. I select a few from a long list given in the American
Official Report dealing with the subject[221].
-----
Footnote 221:
This Report, published in 1889 by the United States Labour Bureau at
Washington, contains many instructive data. The Annual Reports of the
voluntary Association, called the League for the Protection of the
Family, also deserve to be consulted. Its corresponding secretary is
the Rev. Dr. S. W. Dike of Auburndale, Mass., who has written a number
of thoughtful articles upon the subject, and to whom I am much
indebted for documents supplied to me and for the expression of his
own views.
-----
A wife alleges that her husband has accused her sister of stealing,
thereby sorely wounding her feelings.
Another says, ‘During our whole married life my husband has never
offered to take me out riding (= driving). This has been a source of
great mental suffering and injury.’
Another complains that her husband does not wash himself, ‘thereby
inflicting on plaintiff great mental anguish.’
Another says that her husband ‘quotes verses from the New Testament
about wives obeying their husbands. He has even threatened to mash the
plaintiff, and has drawn back his hand to do it.’ The decree which
awarded a divorce to this wife contains the following: ‘I find that when
plaintiff was sick and unable to work defendant told her the Lord
commanded her to work, and that he was in the habit of frequently
quoting Scriptural passages in order to show her she was to be obedient
to her husband.’
A wife alleges that her husband does not come home till ten o’clock at
night, and when he does return he keeps plaintiff awake talking. He also
keeps a saloon, which sorely grieves mind of plaintiff. He replies,
saying, ‘Plaintiff should not be ashamed of him because temporarily in
the liquor business: that he may do better some day: his father was a
high State Officer in Germany.’ This wife gets a divorce on the ground
of ‘mental cruelty.’
In all these cases, and in many others enumerated in the Report where
the grounds are equally slight, the divorce is granted. And similar
cases are given in which the husband obtains divorce on the ground of
the wife’s cruelty.
‘Mental cruelty’ is of course a term hard to define, as may be seen by
examining the views that have been expressed by English judges on
cruelty, and it is not wonderful that the easy-going courts of most
American States should give a wide extension to such an elastic
conception.
Of the causes recorded as those for which marriages are dissolved, the
most frequent are Desertion, which represents 38·5 of the whole number
of divorces; then Infidelity; then Cruelty; then Intoxication. Of the
total number of divorces granted during the twenty years 1867-1886, 65·8
per cent., very nearly two-thirds, were granted to wives and 34·2 per
cent. to husbands. Of the total number granted for infidelity 56·4 per
cent. were granted to husbands and 43·6 to wives. But in the other chief
causes wives are more frequently the successful applicants. In cruelty
they obtain seven times as many decrees; in desertion one and a-half
times as many; in intoxication eight times as many. The Report, however,
shows that intemperance is either directly or indirectly responsible for
a larger proportion of the total cases than its place in the table
represents.
I take from a valuable paper by an Ohio lawyer (Mr. Newton D.
Baker)[222] some facts which illustrate the state of things in one of
the so-called ‘Western Reserve’ counties in that great State. In
Cuyahoga county the total yearly number of marriages is about 3,400, and
the number of divorce suits annually brought is about 500. In the year
1898-1899, the whole number of divorce suits brought in the Court of
Common Pleas was 562 out of a total number of 3,848 suits for all
causes, _i.e._ about 12 per cent. In the State of Ohio the annual number
of marriages is from 33,000 to 40,000; the total number of divorce suits
brought from 3,700 to 4,200; and the total number of divorces granted
annually about 3,000 in a population of about 4,000,000. Mr. Baker
observes that ‘five of the causes on which the law allows divorce, viz.
wilful absence of either party from the other for three years, extreme
cruelty, fraudulent contract, any gross neglect of duty, and habitual
drunkenness for three years, are all so vague and elastic as to amount
to unrestricted licence in the matter of divorce.’ Out of 366 divorces
granted in the year 1898-1899, wilful absence and gross neglect of duty
accounted for 150, extreme cruelty for 109, habitual drunkenness for 88,
and infidelity for 14 only (five being unaccounted for). He adds, ‘The
personal temper and disposition of individual judges (there are more
than eighty in the State entrusted with power to dissolve marriages)
have come to be so well recognized as the limits of the jurisdiction of
the Common Pleas Court in granting divorces, that now it is the practice
of many lawyers to continue and delay the hearing of divorce causes
until some judge, known to be lenient in this matter, rotates to the
bench of the Court in which such cases are set for hearing.... Many of
the judges appear to be oblivious to the fact that one of the most
important interests of society is at stake in every divorce proceeding,
and either out of unscientific ideas upon the subject, or out of mere
complaisancy towards attorneys and litigants, they have lent themselves
to a looseness of practice which is in some degree responsible for the
deplorable results.’
-----
Footnote 222:
_Western Reserve Law Journal_ for October, 1899.
-----
In the United States applications for divorce are mostly made after a
marriage of short duration. In one-half of the cases divorce was granted
within six years from the date of marriage. Oddly enough, the average
duration of a marriage terminated by divorce varies much between State
and State. It is shortest in the southern States, falling to 6·48 years
in Arkansas, and 6·91 in Tennessee, highest in the north-east, rising to
11·69 in New Jersey, and 12·12 in Massachusetts. This may be partly due
to the fact that the more conservative States require a longer period of
desertion to be proved. The duration of marriage is somewhat longer in
cases where the wife applies, which may indicate either that she is more
patient under her lot than the husband, or that her comparative
ignorance of the world makes her less able to resort to the Courts. The
fact that desertion is the cause most frequently assigned by wives may
also have its effect.
It would be important to know what proportion the desire to marry some
one else bears to the other causes which induce persons to seek to
escape from their existing wedlock. Unfortunately American statistics of
marriage, which are in many States loosely kept, do not enable us to
answer this question[223]. Practising lawyers say that nothing is
commoner. It would appear, however, from some European[224] figures that
there is in reality no greater tendency for divorced men, and scarcely
any greater tendency for divorced women, to remarry within a few years
of the dissolution of their marriage than there is for widowers and
widows to do so after the death of a consort; and it has often been
observed that persons who have been most happily married are among those
most likely to marry again.
-----
Footnote 223:
The Report for 1891 of the League for the Protection of the Family
says: ‘Connecticut for two years reports the number of divorced
persons married each year. In 1889 there were 286 such—135 men and 151
women, which is a little above one-third the number divorced in the
year. In 1890 there were 477 divorces granted, or 954 individuals
divorced; and there were 350 divorced persons—this year 207 women and
143 men—who married again during the year. An extended induction along
this line should be possible. Guesses based on mere observation are
untrustworthy guides in legislation or social reform.’
-----
The rapid growth of divorce under the hasty legislation which marked the
first half of the present century began about thirty years ago to create
some alarm in the United States. The subject was much discussed, an
association was formed to grapple with the evil, and in several States
laws were passed restricting a little the causes entitling persons to be
divorced[225]. In those States there has accordingly been some slight
diminution in the number of divorces granted, but elsewhere the rate has
gone on increasing, though apparently (for there are no very recent
statistics) a little more slowly than it was doing down to 1886. In some
States it seems, after increasing, to have now reached a stable average
to the population. This would appear to be the case in Switzerland also.
-----
Footnote 224:
This point has been worked out by M. Bertillon, a well-known French
statistician. I owe my knowledge of it to an acute and suggestive
paper (some of whose conclusions however seem to me questionable) by
Mr. W. F. Willcox, of Cornell University, New York. ‘The Divorce
Problem’: New York, 1891.
Footnote 225:
Efforts have recently been made to induce States to adopt identical
legislation on this among other topics; and there seems to be a
prospect that a certain number will do so.
-----
XIX. DIVORCE IN MODERN EUROPEAN COUNTRIES.
It is not only in America that the evil grows. In all modern countries
where divorce is permitted, that is to say in all Protestant and some
Roman Catholic States, the same tendency is perceptible. Among the
Protestant nations the impulse of the Reformation caused sooner or later
a rejection of the old canonical doctrine of indissolubility; so we may
say, speaking broadly, that in Germany, Switzerland, Holland, Denmark,
Sweden and Norway, a marriage may be dissolved not only for the
infidelity of either party (since in all these countries husband and
wife are treated alike), but also for desertion and imprisonment for
crime. Some laws go even further, allowing mutual consent to be a cause.
Among Roman Catholic countries, France retained the canonical rule till
the Revolution. The legislation of 1792 granted extreme freedom, which
was so largely used that we are told that in 1797 there were more
divorces than marriages. In 1816 the principles of Catholicism regained
control, and held it till 1884, when a law was passed permitting
marriages to be dissolved for the infidelity of either party, or for the
condemnation of either to an infamous punishment, and authorizing the
transmutation into an absolute divorce of a judicial separation which
has lasted for three years. The law of Belgium is similar, but goes a
little further in allowing mutual consent to be a ground, though one
surrounded by many restrictions. Austria and Hungary allow divorce
(under rules similar to those of Protestant countries, _i.e._ on the
grounds of infidelity, grave crime, desertion, cruelty, &c.) to
non-Catholic citizens, while Italy, Portugal, and Spain adhere to the
Tridentine system which recognizes only a judicial separation (_a mensa
et thoro_) and not a dissolution of the tie. Russia still leaves
matrimonial causes to the ecclesiastical courts, but allows them to
dissolve marriages on the ground of infidelity, a heavy criminal
sentence, or disappearance of one consort for five years[226].
-----
Footnote 226:
According to a high Russian authority, divorce was freely practised by
the Russian peasantry under their ancient customs.
-----
In nearly all these countries such statistics as are available show an
increase in the number of divorces during recent years. For instance in
Belgium, a predominantly Roman Catholic country, divorces rose between
1884 and 1893 from 221 to 497. In France the suits for divorce rose from
1773 in 1884 to 7445 in 1891. The number of divorces compared with the
number of marriages almost doubled in those seven years. In the German
Empire there were 5342 divorces granted in 1882 and 6178 in 1891. In
Holland they were, in 1883, 189, in 1892, 354. A like period saw them
rise in Sweden from 218 to 316, in Norway from 7 to 82(!), in Greece
from 251 to 788. The rise is slighter in Austria. Switzerland alone,
though its law is comparatively lax, shows no increase[227]. In England
divorces rose from 127 in 1860 to 390 in 1887, an increase much more
rapid than that of population or of marriages[228]. Judicial separations
rose between the same years from 11 to 50. In Scotland divorces which in
1867 numbered 32 had, in 1886, grown to 96, a still more rapid rise, as
it covers only twenty instead of twenty-seven years. It is worth noting
that in England it is usually the husband who petitions for a divorce,
and almost always the wife who seeks a judicial separation.
-----
Footnote 227:
I take the above figures from _Parliamentary Paper_ [C-7639] of 1895.
No figures are given for Russia or Denmark.
Footnote 228:
Parliamentary Return of March 9, 1889.
-----
The growth in so many otherwise dissimilar countries of this disposition
to shake off the marriage tie is a remarkable phenomenon, which deserves
more attention than it seems to have yet received in England. Though
strongest in Protestant countries, it is not confined to them, as
appears from the instances of Belgium, Bavaria and Greece. Though there
is no divorce _a vinculo_ in Italy or Spain, the same causes which make
it frequent elsewhere may be at work, though less conspicuously, in
countries where the State aids the Church in checking their outward
manifestation. Divorce is an obtrusive symptom of the disease, not the
disease itself.
What is the disease? or, lest we should seem to prejudge the merits of
the matter, what is the source of this disposition to look upon the
marriage tie with eyes different from those of a century ago, and to
yield more easily to the temptation to dissolve it? The cause, whatever
it is, must lie deep, for it manifests itself under many different
conditions; and it may possibly be not any single cause, but a
combination of several concurrent social or moral changes, independent
springs whose confluence swells the stream of tendency.
A similar phenomenon happened once before in history. At Rome also, as
we have already seen, a very strict theory of marriage and a
corresponding strictness in practice gave way to great laxity of the law
and, after a short interval, to unbounded licence in practice. Let us
see whether we can, by examining the phenomena which brought about this
change in the greatest of ancient States, hit upon any clue that may
serve to explain the facts of our own time.
XX. COMPARISON OF THE PROCESS OF CHANGE AT ROME AND IN THE MODERN WORLD.
The Romans began with a doctrine of marriage which had four salient
characteristics[229]:
A formal legal act almost invariably accompanying marriage.
A religious element in the oldest form of this act.
A subjection of the wife to the husband’s power.
A complete absorption of the wife’s property rights into the legal
personality of the husband.
-----
Footnote 229:
See above, p. 388 sqq. Although no formal legal act and no religious
rites were absolutely required for marriage at the time when we first
discover the Roman Law as a working system, the practice of using
either such an act or such rites was all but universal.
-----
These characteristics all vanished; and under the newer law and custom
of the city, and ultimately of the Empire—
The act of marriage required no formalities, and was entirely a
private affair.
It was also a purely civil, not a religious, affair.
The wife became absolutely independent of her husband, remaining
(unless she had been emancipated) in the legal family of her
father.
The wife’s property remained her own, though it was usual for the
consorts to have some joint property.
Concurrently with and following on these changes there had come about in
Rome a general decline of faith in the old deities, a faith partially,
but not beneficially, replaced by Oriental superstitions. There had also
come habits of luxury, a thirst for material enjoyment, a passion for
amusements, a general relaxation of the moral restraints which public
opinion had formerly imposed. Marriage had begun to be regarded mainly
from the point of view of pecuniary interest or social advancement.
There was comparatively little sentiment attaching to it, and not much
sense of duty. Men grew less and less willing to marry; women as well as
men less and less faithful. Fewer children were born. As neither
religious nor moral associations sanctified the relation, and as it
could be terminated at pleasure, it was lightly entered on, and this
very heedlessness, making it frequently a failure, caused it to be no
less lightly dissolved. Thus social habits and a standard of opinion
were formed, against which the reforming efforts of Augustus and his
successors could do little, and which resisted even the far more
powerful efforts of Christianity, until Roman society itself went to
pieces in the West, and passed into new forms in the East.
This decadence of the matrimonial relation was doubtless facilitated by
three peculiarities of the law, viz. the absence of all prescribed forms
for marriage and divorce, which set caprice free from legal restraints
or delays, the extinction of any necessary connexion as regards property
between the two spouses[230], and the fact that the legal family did not
coincide with the natural family, for legally the wife remained in her
father’s family and did not enter her husband’s. Nevertheless the
underlying causes of that decadence were social and moral rather than
legal causes.
-----
Footnote 230:
The _Dos_ supplied a connexion, but the wife’s right to claim it at
the end of the marriage was not greatly affected by her conduct (see
pp. 397 and 406 _supra_).
-----
In the modern world the change from the old state of things to the new
has been slower and less complete. Still it offers a kind of parallel to
the phenomena we have been considering.
Before the Reformation what were the features of the marriage relation
in Europe?
It had a strongly religious character. Its formation was blessed by the
Church. It was deemed a Sacrament. It was treated, for doctrinal
reasons, as indissoluble. There were, to be sure, plenty of marriages
essentially unhallowed, plenty of marriages contracted for the most
sordid reasons, plenty of marriages with little affection; and there
were also marriages tainted by sin. The standard of conjugal fidelity
was in the fifteenth century a low one. Nevertheless the tie was deemed
to be one which religion sanctified, and religious sentiment must have
had a restraining effect upon tender consciences, and particularly upon
the wife, women being usually more susceptible to religious emotion than
men are.
It gave the husband, in most countries, and notably in England, an
almost complete control over the property rights of the two spouses, and
in this way held them together.
It gave the husband, and notably in England, almost complete control
over the person and conduct of the wife, impressing upon her mind her
dependence on him, and her duty to obey him. No doubt where the wife’s
intellect or will was the stronger of the two her intellect guided or
her will prevailed. Nevertheless her normal attitude was that of a
submissive identification of her wishes and interests with his.
Whether these things made for affection, and for happiness, the outcome
of affection, is another question. What we have to remark is that at any
rate they drew the bond very tight, and formed a solid basis for family
life. Bride and bridegroom took one another for richer for poorer, for
better for worse, in sickness and in health, till death should them
part.
What has been the course of things since the Reformation?
In Protestant countries the religious character of marriage has been
sensibly weakened. Although the ceremony, in most of such countries, and
notably in England, still usually receives ecclesiastical benediction,
the tie is not to men’s or even to women’s minds primarily a religious
tie. To most Protestants, the wedding service in church, or before a
minister of religion, is rather an ornamental ceremony than essentially
a sacred vow. The duties of the spouses are conceived of by them in a
more or less worthy way, according to their respective religious and
moral standards, but not generally, or at least seldom vividly, as a
part of their duties towards God.