DIVORCE

CHAPTER I

THE desire to obtain release from the bonds of matrimony has existed at all times, and under all religious and legal systems. It is not an American invention, as some seem disposed to believe. Nor are native-born Americans its greatest practitioners, nor is it a custom to which Protestant Christians are at all addicted.

The enactment of laws controlling marriage constituted a subject that shook the Christian world to its core long before the Reformation, and the question is not mutually settled yet between clergy and laity, or between ecclesiastical and civil authorities in Catholic countries, since in most of them,- France, Belgium, Mexico, Austria, and even Italy, the state does not recognize marriage by the church as being adequate, while the church refuses to accept state or civil weddings as marriage at all, so that still there are disagreements and constant conflicts on the subject in many Catholic lands.

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Before the Christian era divorce was permitted alarming latitude under the older laws. According to both Josephus and St. Jerome, the woman divorced was to have from her husband " a writing" which said, “I

promise that hereafter I will lay no claim to thee." This was called "a bill of divorce" and it abrogated the union forever; so that matrimonial annulment was a much easier matter then and until the end of the sixteenth century, even in Christian lands, than at any time since.

That the people in olden times did not take more frequent advantage of it than they have done in some places subsequently was not because they were more virtuous, but because they were less particular in such matters, as, until the advent of the new woman, and the Reformation, marital morality was not a prevailing trait.

The laws regulating marriage and divorce through the ages have been very varied and have been expressive of the characteristics of the people making them. With the Romans, always in need of men for their conquering armies, childlessness was a cause for divorce, while the Cretans, less in need of soldiers, granted legal separation to a man when he was merely afraid of having too many children. Romulus, long before the church enacted a law prohibiting a wife from being divorced from her husband, no matter what happened, and another ruler in the old days made statutes which gave the man the privilege of turning his wife adrift "when she poisoned her children," or "counterfeited his private keys." Thus all sorts of anomalous legislation was done in connection with wedlock, as we shall see, even in Christian lands all through the centuries, notwithstanding the dictum of

Christ, which declares that "whosoever shall put away his wife, except it be for fornication, and marrieth another committeth adultery, and whoso marrieth her that is put away committeth adultery." The Spartans almost never divorced their wives, and it was considered extremely scandalous for a wife to leave her husband. The Athenian law allowed a man to divorce his wife, but he either had to return her marriage portion, or else pay nine oboli a month for alimony.

The law of Moses, some say for reasons of local expediency, permitted the Jewish husband to put away his wife, but whether for every cause or for what cause appears to have been controverted among the interpreters of those times. Christ, the precepts of whose religion were intended for more general if not universal use, revokes this permission as given to the chosen people "because of their hardness of heart; but from the beginning it was not so," and promulgated a law which was henceforth to confine divorce to the single cause of adultery in the wife. (In these days there are few people more loyal to wedlock than the Jews, and there is but very seldom divorce among them. Polygamous in the old times and uncondemned by Scripture, they have become monogamous as a matter of social evolution, and they accept the law of the land as the proper arbitration in the matter.)

Inferior causes, according to Christ's teaching, may justify the separation of husband and wife, although they will not authorize such a dissolution of the marriage contract as would leave either at liberty to marry

again, since it is in that liberty that the danger of divorce chiefly lies.

The Catholic church now, and since the Council of Trent, contrary to the teaching of Christ, does not allow divorce a vinculo matrimonii. No matter what the offense of the contracting parties, the contract is indissoluble.

The law of Great Britain, the Church of England, and all other orthodox Protestant churches, notwithstanding the abuse of the liberty of Christ occasionally practiced by certain malodorous clergymen, in conformity to our Saviour's injunction confines dissolution of the marriage contract to the single cause of adultery in the wife; and in England a divorce even in that case can only be brought about by the operation of an act of Parliament founded upon a previous sentence in the Spiritual Court, and a verdict against the adulteress in common law. It is also contrary to law in England for the offending party to marry the partner of her crime.

Sentences in the ecclesiastical courts in England which release the parties, by reason of impuberty, consanguinity within the prohibited degree, prior marriage, and the want of the requisite consent of parents or guardians, are not dissolutions of the marriage contract, but judicial declarations that there was no marriage.

The rite itself in England contains an exception of these impedimenta, since the candidates for the ceremony of marriage are charged that “if they know any impediment why they may not lawfully be joined to

gether to confess it," "or else," as we sometimes add, "forever after hold your peace." And they are assured that “so many as are coupled together otherwise than God's word doth allow, are not joined together by God, neither is their matrimony lawful." This is the very quintessence of wisdom, connected with Christian wedlock. It is consistent with the teaching of Christ and is the belief, as a rule, of all orthodox Christian churches.

Yet so little does this seem to be understood that lately a Catholic lawyer, whose daughter ran away with his coachman, threatened that if his church did not grant her a divorce, he would have her turn Protestant, when she would have no trouble in that direction. Like many other people who ought to know better, he did not distinguish between Protestant and Protestant Christian.

Among most non-Christian people, the Jews perhaps excepted, and the rank and file of Christians up until about the sixth century-and there were no Christians then but orthodox Catholic Christiansmarriage was practically regarded as little more than a conventional union, to be observed as long as it suited the convenience of the contracting parties, when it was dissolved, usually without legal process or scandal.

The reason we hear so comparatively little about it in sensational capitals from the old times is simply because it was regarded as a matter hardly worth mentioning, except in church councils or as a joke, especially in such books as those by Rabelais, "The